1. This appeal by the applicant before the Railway Claims Tribunal in Application No.627/1996 is directed against the order dated 5th June, 2002 passed by the learned Member (Technical), Railway Claims Tribunal at Guwahati rejecting the application filed by the present appellant for refund of the under charge realized from them.

2. The facts relevant for the purpose of the present appeal may be noticed as under:-

The appellant booked 4(four) consignments of cement vide invoice Nos.10 to 13, Railway Receipts No.408452 to 408455 dated 24th February, 1993 at SATNA for transportation to New Guwahati with the endorsement freight 'to pay'. On reaching of the consignments in the destination station, freight was realized and also amount of Rs.33,630/- was collected from the appellant by the Railway Administration, which according to the appellant, was realized by the Railway Administration though the said amount is not liable to be paid. According to the appellant, the said amount has been realized despite the protest made and because of the mistake committed by the Railway Administration in calculating the distance between the two stations. The appellant, therefore, filed the said application before the Tribunal for refund of the said amount. During pendency of the application, the appellant, however, has submitted the calculation sheet to the effect that they are entitled to refund of Rs.25,869/- towards the excess under charge realized by the Railway Administration from the appellant.

3. The said proceeding was contested by the Railway Administration by filing written objection contending inter-alia that the right to sue, after transfer of the Railway Receipts, in view of Section 74 of the Railways Act, 1989 (in short, 'the Act'), is on the consignee. It is also the stand of the railway that since the consignment has already been delivered to the consignee before the appellant/consignor lodged a claim for refund, it is the consignee who can maintain an action for refund of the amount, subject, however, to the right of the consignor in the event the consignor is authorized by the consignee to lodge such claim. The contention of the appellant that because of the mistake on the part of the Railway Administration in calculating the distance between the 2(two) stations, excess amount as under charge has been realized from the appellant/consignor, however, has not been disputed.

4. The Tribunal vide order dated 5th June, 2002 has dismissed the claim application filed by the appellant/consignor by holding that in view of the provisions contained in Section 74 of the aforesaid Act, the title to the property in the consignment has been transferred to the consignee after the transfer of the Railway Receipts and the delivery of the property. Hence no action, in the absence of any document to demonstrate the authorization of the consignor by the consignee to lodge the claim, the consignor cannot maintain the claim. Hence the present appeal.

5. I have heard Mr. H.P. Barman, learned counsel for the appellant and Ms. B. Devi, learned counsel appearing for the Railway Administration.

6. It has been contended by Mr. Barman, learned counsel for the appellant that it is not in dispute that the amount of Rs.33,630/- was realized from the appellant/consignor by the Railway Administration towards the under charge, because of the mistake committed by its officials in calculating the distance between the two stations and as such, the Railway Administration is duty bound to refund the excess amount, which the consignor has paid. Mr. Barman referring to the provisions contained in Section 75(b) of the Act also submits that despite the provisions contained in Section 74, since the Railway Administration has the right to claim the freight from the consignor and accordingly such claim was made and the consignor has paid the under charge, the Tribunal was not right in rejecting the claim application filed by the appellant/consignor. Refuting the stand taken in the written objection filed by the Railway Administration, it has also been submitted by Mr. Barman that even though the claim was lodged by the appellant/ consignor after delivery of the property in the consignment to the consignee, the consignor still have the right to maintain a claim as the amount towards the under charge was realized before delivery of the property to the consignee.

7. Ms. Devi, learned counsel appearing for the Railway Administration, on the other hand, supporting the order passed by the Tribunal has submitted that by virtue of the provisions contained in Section 74 of the Railways Act, the title in the property got transferred to the consignee as soon as the Railway Receipts is transferred and the property in the consignment is delivered to the consignee or the endorsee, as the case may be. It has been submitted that though the amount was realized from the appellant/consignor as under charge, the refund having been claimed by the appellant/consignee after delivery of the property to the consignee, the appellant/consignee cannot maintain an action in the absence of any document demonstrating authorization of the consignor, to maintain such action, by the consignee. The learned counsel, therefore, submits that no illegality has been committed by the learned Tribunal in rejecting the claim of the appellant/consignor.

8. I have considered the submissions of the learned counsel appearing for the parties and also perused the materials available on the records of the claim Application No.627/1996.

9. Having regard to the claim made in the claim application, the objection filed thereto and the submissions as advanced by the learned counsel appearing for the parties, the following facts are not in dispute:-

(i) That 4(four) consignments of cement under four railway receipts all dated 24th February, 1993 were booked at SATNA for transportation to NEW GUWAHATI with the endorsement freight 'to pay';

(ii) On reaching the destination station, an amount of Rs.33,630/- was realized by the Railway Administration from the appellant/consignor towards the under charge;

(iii) There was a mistake committed by the Railway Administration in calculating the distance the consignment travelled, which led to the excess realization of under charge from the appellant/ consignor.

10. As noticed above, the claim application filed by the appellant/consignor was rejected on the ground that it is not maintainable because of the fact that though the under charge was realized from the appellant/consignor, since the Railway Receipts were transferred to the consignee and the goods were delivered, the title passed on the consignee and hence the appellant/consignor cannot maintain an action for refund of the amount paid in excess of the amount to which the Railway Administration is entitled towards the under charge.

11. Section 74 of the 1989 Act provides that the property in the consignment covered by a railway receipt shall pass to the consignee or the endorsee, as the case may be, on delivery of such railway receipt to him and he shall have all the rights and liabilities of the consignor. Section 75(b), however, has provided that nothing contained in Section 74 shall prejudice or affect any right of the railway to claim freight from the consignor, apart from the other right as mentioned in Clauses (a) and (c). The Railway Administration, therefore, notwithstanding the provisions relating to the passing of property in the consignment to the consignee or the endorsee, covered by railway receipts, as provided in Section 74 of the Act, has the right to claim the freight from the consignor.

12. In the instant case, it appears from the documents filed before the Tribunal that there was demand from the railway authority in the destination station for payment of under charge and accordingly, such under charge was paid by the appellant/consignor. It was, however, subsequently found that part of the under charge was realized in excess of what the Railway Administration is entitled to realize, because of the mistake committed by its officials in ascertaining the distance the consignments have travelled from the booking station to the destination station. The Railway Administration having realized the amount towards the under charge from the appellant/consignor even after transfer of the railway receipts, the Railway Administration cannot refuse to refund the amount realized in excess of what it is entitled to, when such realization was because of the mistake committed by t

he railway officials in ascertaining the distance the consignments have travelled from the booking station to the destination station. The contention of the Railway Administration that since the claim was made by the appellant/consignor after delivery of the property to the consignee, no claim can be maintained for refund of the excess amount by the consignor cannot be accepted on the ground that the amount was realized prior to delivery of the property from the appellant/consignor, even though the claim was made after the consignments were delivered to the consignee. 13. In view of the above, the order passed by the learned Tribunal is set aside. The Railway Administration is directed to refund the amount of Rs.25,869/-, which amount shall carry interest at the rate of 9% per annum from the date of realization of the aforesaid excess amount till the date of payment. 14. The Registry is directed to send down the records forthwith.