P L D 1960 Dacca 604 (PLP)

AKBAR, J.‑This appeal arises out of a suit filed by the plaintiff, the Province of East Bengal, for recovery of a certain sum of money lent and advanced to defendant No. 1.

2. The facts are as follows : On 8th January, 1943, the Government advanced a sum of Rs. 3,000 to defendant, No. 1 the Bakarganj Central Co‑operative Sale and Supply Society, Ltd., Barisal, hereinafter referred to as the Society to enable them to keep sufficient stock of essential food‑stuffs. The Society undertook to refund the said amount on demand. As they failed and neglected to pay the amount notwithstanding repeated demands, the Government filed this suit in 1948.

3. The Society contested the suit by filing a written statement. Their defence, inter alia, was that the claim was barred by limitation ; that the suit was bad in the absence of notice under section 80 of the Code of Civil Procedure ; and that the sum claimed had really been advanced to defendant No. 2, Shashishe khar Lahiri, without the knowledge of the Board of Directors of the Society.

4. The learned Subordinate Judge found (1) that the suit was maintainable ; that no notice under section 80 of the Civil Procedure Code was necessary ; and (3) that Article 59 of the Limitation Act was applicable to the case, and that, as the plaintiff did not file the suit within three years from the date of the loan, the claim was barred by limitation.

5. As the learned Subordinate Judge came to the conclusion that the claim was barred, he did not enter into the question whether the Society was liable to refund this amount.

6. On appeal by the Government, the learned Additional District Judge upheld the findings of the Subordinate Judge that Article 59 was applicable, and hence he dismissed the appeal.

7. The only point for determination in this appeal is whether the claim of the Government is barred by limitation. The learned Government Pleader has contended that Article 149 of the Limitation Act was applicable to this case. In support of his contention, he has relied on the following decisions: (1) Bengal North‑Western Railway Co, Ltd. and another v. Janki Prasad and another A I R 1936 Pat. 362. (2) Manilal Gangadas Desai and others v. The Secretary of State for India in Council I L R 40 Born. 166 ; and (3) Lalchand and another v. Union of India A I R 1956 Ajmir 10.

8. In the Patna case, it was decided that a claim for mesne profits by the Government was governed by Article 149 of the Limitation Act.

9. In the Bombay case, the Secretary of State for India‑in- Council sued for recovery of certain sums of money said to have been embezzled by some of the defendants. The Court held that the claim was governed by Article 149.

10. In the Ajmer case, the Union of India claimed certain sums of money from the Government Treasurer. It was not contested that Article 149 did not apply to the case. The contention, however, was that Article 149 was discriminatory in nature. The Court held that Article 14 of the Constitution of India was not applicable as the State was acting as a "great juristic person", and not as a "quasi‑private juristic person". The Court, in coming to the said conclusion, relied on the decision reported in Moti Lal and others v. The Government of the State of Uttar Pradesh and others (A I R 1951 All. 257). In the present suit, the facts are shortly as follows : Famine conditions were prevailing in the country. The Society was supplying foodstuffs at the controlled rate. The Government advanced a sum of Rs. 3,000 for the purpose of increasing the stock position of the Society. It is thus clear that the Government had not engaged itself in a commercial under taking, trade or business, but it was doing an act incidental to its function. We, therefore, think that the Government is entitle to get the benefit of Article 149 of the Limitation Act. In the words, Article 59 or 60 of the Limitation Act is not applicable to this case. In our opinion, Article 149 applies to the suit, and, as such, the claim is not barred by limitation.

11. The Courts below, being of the opinion that the claim was barred by limitation, did not enter into the merits of the case.

12. In the result, we allow the appeal, set aside the judgment and decree of the Courts below, and remit the case to the Court of first instance for disposal in accordance with law.

13. As no one appears for the respondents, we make no order as to the costs of this appeal. BAQUER, J.‑I agree. K.B.A. Appeal accepted