THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR A.S.Nos.321 & 489 of 1999 COMMON JUDGMENT : (Per Hon’ble Sri Justice V.Eswaraiah) The appellant in A.S.No.321 of 1999 is the plaintiff in O.S.No.73 of 1989 and the appellant in A.S.No.484 of 1999 is the plaintiff in O.S.No.104 of 1989. Both the suits were filed against the Employees’ State Insurance Corporation, Hyderabad, on the file of the Additional Senior Civil Judge, Rajahmundry, for the refund of E.S.I. contributions made by them along with interest. The said suits were dismissed by a common judgment dated 16-03- 1998. Aggrieved by the same, A.S.No.321 of 1999 is filed against the common judgment in O.S.No.73 of 1989 and A.S.No.484 of 1999 is filed against the common judgment in O.S.No.104 of 1989. 2. For the sake of convenience, the parties herein after will be referred to as they were arrayed in the original suits. 3. The brief facts which led to the filing of both these appeals are that the plaintiff in O.S.No.104 of 1984 viz., The India Fruits Limited, Kadiyam, is a registered limited company under the Companies Act, 1956 and the plaintiff in O.S.No.73 of 1989 viz., M/s.Godavari Electrical Conductors, is a sister concern to the India Fruits Limited. Both the plaintiffs are carrying business in manufacturing of electric cables and conductors (ACSR & AAC Conductors) and selling to the customers. Initially, the plaintiffs are covered by the Employees’ State Insurance Act (for brevity ‘the E.S.I. Act’). But from 1961 onwards, the plaintiffs were exempted from payment of employer’s special contribution from the purview of the E.S.I. Act as per the Government Order dated 02-01-1961. In 1965, defendant- Employees State Insurance Corporation addressed a letter to the plaintiffs calling upon them to furnish the particulars of employees to know whether exemption is continued. But no action has been taken till 1973, and in 1973, once again, the defendant called for the particulars of the employees of the plaintiffs. 4. It was the contention of the plaintiffs that the plaintiffs are not covered by the E.S.I. Act and they are not liable to pay the contributions to the defendant. The defendant collected the contributions by threat. It is stated that the defendant wrote number of letters to the plaintiffs threatening to take coercive steps under the E.S.I. Act and therefore, the India Fruits Limited filed W.P.No.1244 of 1976 on the file of this Court questioning that they are not liable to pay any contributions to the defendant and in the said writ petition, a conditional order was passed while granting stay for depositing an amount of Rs.20,000/- and Rs.10,000/-, and the said amount was held to be subject to the result of the suit to be filed before the E.S.I. Court. Ultimately, the High Court dismissed the writ petition by order dated 13-07-1977 granting two months’ time to the plaintiffs to approach the Employees’ State Insurance Court. In pursuance there of, the applications were filed in E.I. Case Nos.73 and 74 of 1977 on the file of the Employees’ Insurance Court for adjudication contending that the plaintiffs are not liable to pay contribution and that the provisions of Employees State Insurance Act are not applicable to them. The E.S.I. Court allowed the E.I. Case Nos.73 and 74 of 1977, by separate orders dated 26-12-1977 and 26-10-1977, respectively, holding that the provisions of the Employees State Corporation are not applicable to the plaintiffs. Aggrieved by the same, the defendant filed C.M.A.Nos.265 and 676 of 1978, respectively, on the file of this Court and the High Court dismissed both the C.M.As. by a common judgment dated 12-12-1984 holding that the provisions of the E.S.I. Act are not applicable to the plaintiffs and the plaintiffs are not liable to pay the contributions to the defendant. Thus, the judgment of the E.S.I. Court, which was upheld by the High Court has become final and further appeal is filed against the C.M.A. to the Hon’ble Supreme Court. Thus, it is not in dispute that the plaintiffs are not at all liable to pay any contributions and the contributions, subscribed by them during the pendency of the E.I. Case Nos.73 and 74 of 1977 which were ultimately confirmed in C.M.A.Nos.265 and 676 of 1978 by the High Court by order dated 12-12-1984, are liable to be refunded. 5. It is stated that as the said contributions were collected under mistake of law, the defendant is liable to refund the said amount. The questions that the defendant having no jurisdiction is not entitled to collect the said amounts and that the defendant collected contributions from the plaintiff illegally and that the plaintiffs are also entitled to claim interest on the illegal collection are not in dispute. In fact, these issues have been held in favour of plaintiffs. 6. However, the question now falls for consideration is with regard to the limitation i.e. whether the suits are barred by limitation. The Court below dismissed the suits on the ground that the suits are barred by limitation. The plaintiffs filed these two appeals contending that the High Court finally disposed of the C.M.A.Nos.676 265 of 1978 by a common judgment dated 12-12-1984 and the defendant acknowledged the refund of the amounts by Exs.A-54 and 59, dated 18-08-1986 and whereas the suits have been filed on 07-04-1989 that is within three years of the date of acknowledgments, and therefore, the suits filed are not barred by limitation. It is further contended that the Court below which ought not to have dismissed the suits as barred by time without considering Exs.A-54 and 59 as the acknowledgments of the payments, and therefore, under Section 18 of the Limitation Act, Exs.A-54 and 59, under which the amounts were deposited pursuant to the orders in the said writ petition, are the acknowledgments and therefore, the right to sue is saved under Section 18 and read with Section 20 of the Limitation Act. 7. Per contra, the learned standing counsel for the defendant- Corporation contended that the claim of the plaintiffs for the recovery of the suit amounts from the defendant is not in accordance with law. He further contended that the trial Court rightly dismissed the suits holding that the suits were barred by limitation. Therefore, the appeals are not maintainable as per the provisions contained in the Limitation Act and hence they are liable to be dismissed in limini. 8. Now the question that arises for consideration is as to whether the plaintiffs filed the suits within the period of three years when they have the right to sue. 9. The undisputed facts are that as aforesaid E.I. cases filed by the plaintiffs were filed on 26-12-1977. The E.S.I. Court allowed the said cases holding that the defendant-Corporation is not entitled to collect contributions from the plaintiffs. Against which the defendant filed C.M.As. which were dismissed by the High Court by order dated 12-12-1984. Further, the writ petition i.e. W.P.No.1244 of 1976 filed by the plaintiffs was dismissed. During the pendency of the writ petition, it appears that a stay was granted subject to condition of the plaintiffs depositing an amount of Rs.10,000/- and Rs.20,000/- and ultimately the said writ petition was dismissed permitting the plaintiffs to file E.I.Cases. Thereafter, they approached the E.S.I. Court and filed E.I. Case Nos.73 and 74 of 1977. The E.S.I. Court allowed both the cases holding that the plaintiffs are not liable to pay the contribution. On appeals in C.M.A.Nos.265 an 676 of 1978 also, the orders in the E.I. Cases were confirmed by the common judgment dated 12-12-1984 of this Court. Based on all these facts and circumstances, the plaintiffs filed the original suits in O.S.Nos.73 and 104 of 1989 on the file of the Additional Senior Civil Judge Rajahmundry, for the refund of E.S.I.Contributions made by them along with interest. But however, on considering the entire material available on record, the trial Court dismissed both the suits by its common judgment dated 16-03-1998. Aggrieved by the same, the plaintiffs approached this Court and filed the present appeals. 10. According to the learned counsel for the petitioners, Exs. A-54 and 59 shall be treated as acknowledgments of refund of E.S.I. Contribution. But, as per Ex.A-29, a letter, written by the plaintiffs themselves specified that the amount deposited pursuant to the orders of the High Court does not pertain to the contributions on behalf of the any particular person and therefore, they are entitled to refund the said amount as E.S.I. Court held that the plaintiffs are not liable to pay any contributions. It is only, in fact, in the said letter, it is stated that they are going to lodge a separate claim for refund of amounts paid by them towards contribution. In fact, they have not filed any separate letter till 23-02-1987. For the first time, they have filed a letter dated 23-02-1987, Ex.A-30, claiming the refund of the contributions made by the plaintiffs. 11. Admittedly, the plaintiffs’ right to sue under Article 113 of the Limitation Act will be saved if they filed suits within a period of limitation i.e. from the date of dismissal of C.M.As. 12-12-1984 that means before 12-12-1987. Making representations claiming the refund will not save the limitation unless the defendant acknowledges the payment of the said amount. 12. Admittedly, refunded amounts of Rs.10,000/- and 20,000/- as per Exs.A-54 and 59 are not towards the contributions of the E.S.I. as admitted by themselves, since the said amounts were deposited pursuant to the directions of the High Court before approaching the E.S.I. Court. Therefore, we are unable to accept the contentions of the learned counsel appearing for the plaintiffs that Exs.A-54 and 59 are the acknowledgments and that the right to sue is saved as the suits were within the period of three years commencing from the date of Exs.A-54 and 59. 13. Under Section 18 of the Limitation Act, if there is an acknowledgment, acknowledging the refund of the amount, no doubt, fresh period of limitation shall be liable to be computed from the date of acknowledgment. But we are unable to see any such acknowledgment acknowledging the part payment of the refundable amount of the E.S.I. Contribution to the defendant. In the absence of any such acknowledgment, we are of the opinion that Exs.A-54 and 59 cannot be treated as the acknowledgments of refundable part of the E.S.I. contribution and therefore, it cannot be said that the suits are not barred by limitation. The Court below having properly appreciated the contentions of both the parties rightly held that the period of limitation cannot be computed from the date of Exs.54 and 59. In fact, the Court below on appreciation of the letters addressed by the plaintiffs Exs.A-27, 28, 51 and 52, held that the plaintiffs have not claimed refund of the contribution under Exs.A-27 and 21, letters, and therefore, refund of the amount under Exs.A-54 and 59 does not relate to the contribution amount and therefore right to sue was not saved. 14. In view of the aforesaid facts and circumstances of both the cases, we do not see any grounds to interfere with the common judgment of the Court below. 15. In the result, both the appeals are dismissed. No costs. _____________________________ JUSTICE V.ESWARAIAH Dated: 30-07-2011 ___________________________ JUSTICE B.CHANDRA KUMAR kvr