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TMI Blog1945 (11) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in his hand-book only one tenth of what should have been entered. There was this excuse for the mistake that the meters used by the Board varied and some showed decimal points before the last digit. What is surprising, however, is that no one should have noticed that the consumption at the Waverly Quarters throughout this long period was only a fraction of what it had been previously. 3. These being the now undisputed facts the only question for determination is whether the claim can be allowed for the whole period of nearly five years. The Civil Judge held that the case was covered by Article 96, Limitation Act, and so no part of the claim was time-barred. He decreed the suit for the whole claim with costs and future interest at six per cent. 4. The learned Counsel for the appellant contends that Article 96, which relates to a suit brought for "relief on the ground of mistake" and which, allows a period of three years from the date when the mistake becomes known to the plaintiff is not applicable. If it is applicable, the decree for the whole amount due is justified, because, according to the plaintiff's evidence, which there is no reason to doubt, the mistake w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not covered by Article 96. A party to a contract cannot merely by pleading mistake on the part of his employees bring the case under Article 96. 10. In the Sind case Narumal Hirachand v. Nanumal Benarsidas ('33) A.I.R. 1933 Sind 32 the plaintiff sup-plied goods to one of two brothers who did business independently of each other. The debit was wrongly entered to one brother with the result that no demand for payment was sent to the other brother who was liable until the period of limitation had expired. It was sought to bring the suit within time by relying on Article 96. The contention was rejected, a distinction being drawn between cases where money was paid under mistake and cases where on account of a mistake a claim for money due was not made within limitation. The plaintiff did not say that he had sold his goods on account of a mistake. The case was covered by Article 52 and what the plaintiff was really trying to do was to claim exemption from the operation of that article. The plaintiff could not avoid the plea of limitation by the simple process of setting up his own mistake. 11. The principle which emerges from these decisions is that the suit must be founded on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgage had been extinguished. The plaintiffs sued the defendants for contribution to the loss. It was held that while Article 96 applied the suit was barred by it, the discovery of the mistake dating back more than six years. The position in this case appears to have been that the defendants owing to this mistake had obtained more and the plaintiffs less than they should have done. Thus again the cause of action was the mistake. 15. Ramakottaya v. Sundararamayya ('31) 18 A.I.R. 1931 Mad. 707 was a very similar case, the plaintiff suing for rectification of a partition vitiated by mistake. 16. Of other cases cited by the learned Counsel for the respondent on this point the only case which is at all relevant is Madras Consolidated Sugar and Spirit Factories Ltd. v. William Sissmore Shaw ('04) 14 M.L.J. 443. In this case a debt was released by mistake and it was held that those who made the mistake were entitled to be placed in the same position as they would occupy, if there had been no mistake, and also compensated for any loss necessarily resulting from the mistake. In so far as the claim was not time-barred (under the article ordinarily applying) they could sue for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property" other than actionable claims and money." Electric energy is bought and sold like any other commodity and there can, therefore, be no doubt that it is 'property.' Is it movable? There does not appear to have been any authoritative pronouncement on this point, though doubt has been expressed as to the extent to which gas and electricity are 'goods' -for the purpose of the English Sale of Goods Act. 20. The Indian Electricity Act of 1910 furnishes no direct assistance, but it may be noted that it provides (in Section 39) for theft of energy. The definition of theft in Section 378, Penal Code, shows that that offence is committed when a person intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking. Section 39, Electricity Act, enacts that: Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code; and the existence of artificial means or such abstraction shall be prima facie evidence of such dishonest abstraction. 21. It was no doubt felt, having rega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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