The Court established that the collection of octroi duty on goods meant for export was beyond the powers of the Municipal borough, and the cause of action for refund of octroi duty accrued after the expiry of 24 hours from the collection of the duty.

( 1 ) THIS appeal is directed against the judgment and decree dated 29. 9. 1972 passed by the Principal Civil Judge, Belgaum, in r. A. No. 202 of 1965 allowing the appeal and setting aside the judgment and decree dated 17. 3. 1965 passed by the Munsiff, belgaum, in Reg. O. S. No. 68 of 1962.

( 2 ) THE defendant in the said suit is the appellant. The suit by the respondent-firm was dismissed by the Munsiff, but decreed by the lower appellate Court.

( 3 ) THE facts held proved are that the plaintiff was dealing in betelnuts and was having two shops, one in Belgaum and the other at Karve. He was exporting betelnuts. After securing betelnuts at Karve shop he used to convey them to Belgaum railway Station to export outside the Belgaum municipal Borough. To do so, he had to convey the betelnuts by passing vengurla Toll Naka which would be the importing end and then by passing Goods naka which is the exporting end to reach the Railway Station. It may be stated here that these two Nakas find place in the octroi Rules and Bye laws governing the appellant-the Belgaum Municipal Borough. He brought betelnuts for such export between 9. 2. 1959 and 13. 6. 1959 from Karve shop. Octroi was collected at Vengurla naka as per receipts Exhibits 57 to 95 on various dates though the betelnuts were not for use and sale within the limits of Belgaum municipal Borough but were for export and in fact were exported. He applied for refund of the octroi amount, but there was no favourable response from the defendant. Ultimately he issued a notice through his Advocate on 21. 8. 1959 as per Exhibit 100. The defendant sent its reply dated 23. 9. 1959 as per Exhibit 102. He instituted the suit for recovery of the sum of Rs. 3,186. 99 towards the refund of the actual amount of octroi collected and six per cent interest from 21. 8. 1959 the date of notice.

( 4 ) THE defendant contended that it was not liable to refund the amount as betelnuts were not meant for export but were meant for sale and use within the Municipal limits of Belgaum. Other contentions were also raised. One of the most important contentions was that the suit was bad in law in view of Section 206a of the bombay Municipal Boroughs Act, 1925 (hereinafter referred to as the Act ).

( 5 ) BOTH the Courts below have, on facts, concluded that the plaintiff-firm owned two shops as contended by him, that the betelnuts covered by the receipts Exhibits 57 to 95 had been brought for 'rapid transit' for export outside the limits of Belgaum municipal Borough and that the amounts mentioned in those receipts have been levied as octroi duty.

( 6 ) THE trial Court held that in view of section 61 of the Act and the Rules and bye-laws already referred to above, the transaction fell within the ambit of Section 206a of the Act and the suit having not been filed from six months from the date when the cause of action arose, it was barred by limitation.

( 7 ) THE lower appellate Court has, without going into the relevant sections of the act and the Octroi Rules and Bye-laws, concluded that collection of octroi by the defendant was ultra vires the powers under the Act and therefore it could not, in law. be said that the defendant had, in execution of anything in the Act, collected the octroi duty and therefore Section 206a of the Act would not be attracted and as such the suit. ought to be decreed as not being barred by the period of limitation.

( 8 ) BOTH the Courts below have applied art. 62 of the Limitation Act 1908 as the article that would be applicable. Whether article 62 or Article 120 of the Limitation act would apply would not be of much consequence under the facts and circumstances of the case because the suit has been filed on 12. 2. 1962 within the expiry of the period of three years in regard to majority number of receipts out of Exhibits 57 to 95.

( 9 ) THE only question of law urged before me is applicability of Section 206a of the act. Sri. G. D. Shirgurkar, learned Advocate appearing