A person who has paid money under a mistake of fact is entitled to recover the same under Section 72 of the Indian Contract Act, 1872.

JUDGMENT : This second appeal is preferred against the decree and judgment of the learned Principal City Civil Judge, Madras, in A. S. No. 12 of 1955, confirming the decree and judgment of the learned Third Additional Judge, City Civil Court, Madras in O. S. No. 1262 of 1949.

2. The facts are: The appellants M/s. Lakshman Prasad and Sons are a firm of dealers in automobiles carrying on business in Madras. The respondent plaintiff Vajravelu Mudaliar, who had died after the filing of the appeal in the lower appellate Court and whose legal representatives are the respondents in this second appeal, purchased from the appellants a Hindustan-10, four door sedan car on 24-9-1947 for Rs. 9,350/. That was at a time when the Madras Civil Motor Cars Control Order 1947, was in force, and no type of car could be sold for a price exceeding that fixed by the Government under that order. It is the case for the plaintiff that this sum of Rs. 9350/ was represented to be the controlled price exclusive of taxes and other charges.

Subsequently, the plaintiff found out that the controlled rate was Rs. 8,195/. The plaintiff filed the suit out of which this second appeal arises, for the return of the excess paid by him under a mistake. The defendants contended that they did not represent that the controlled rate of the car was Rs. 9,350/- and that there was no mistake within the meaning of S. 72 of the Contract Act entitling the plaintiff to recover the difference between the controlled rate of Rs. 8,195/ and the amount actually paid by the plaintiff.

3. Both the Courts below came to the conclusion that the plaintiff was entitled to the decree asked for. The defeated defendants have preferred this second appeal.

4. The point urged before me by the learned advocate Mr. P.V. Subramanyam is that the facts of this case fall within the decision in Lakshmanprasad v. Achutan Nair, (S) AIR 1955 Mad 662 : 1955 Mad WN 601.

5. Sales of cars by M/s. Lakshman Prasad and Sons to various people for Rs. 9,350/ when the controlled rate was Rs. 8,150/ had been the subject matter of the following appeals in this Court. (S) AIR 1955 Mad 662 : 1955 Mad WN 601 (referred to above) was disposed of by the City Civil Court, Madras, in O. S. No. 635 of 1948 and the appeal therefrom was disposed of by Bashir Ahmed Sayeed, J. (reported in AIR 1952 Mad 779) and the Letters Patent Appeal preferred therefrom, L. P. A. No. 218 of 1952 : (S) AIR 1955 Mad 662), was disposed of by the learned Chief Justice and Somasundaram, J. The learned Chief Justice and Somasundaram J. disposed of on the same lines Laxmanprasad and Sons v. Ferandez C. C. C., A. No. 40 of 1952. The decision in L. P. A. No. 218 of 1952 : ((S) AIR 1955 Mad 662) was followed in this decision. Panchapakesa Ayyar, J. disposed of Sreenivasier v. Lakshman Prasad and Sons, C. R. P. No. 1309 of 1952, and Subburamier and Sons v. Lakshman Prasad and Sons C. R. P. No. 1555 of 1952 wherein the learned Judge dismissed those Civil Revision Petitions on the ground that the Bench Ruling in 1955 Mad WN 601 : (S) AIR 1955 Mad 662 directly applied and that the contracts were for definite prices and the prices fixed had not been left unfixed as in the case in C. C. C. A. No. 54 of 1952 disposed of by the same Bench on 2-5-1955.

In C. C. C. A. No. 54 of 1952 (Lakshmanprasad and Sons v. Chandrasekhar) disposed of by the learned Chief Justice and Somasundaram, J. on different facts, the Bench held that the contract itself must be deemed to have been for the sale of the car for Rs. 8,395 and that was the amount due under the contract and that the plaintiff under a mistake paid more viz., Rs. 9,550/ and that the case would directly fall under S. 72 of the Contract Act and the excess paid by the plaintiff was a case of mistake and the plaintiff was therefore entitled to recover the sum so paid.

6. On the facts of the present case the decision which would apply will be C. C. C. A. No. 54 of 1952. In fact the attention of the lower appellate C