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Union of India v/s Sun Rise, Guwahati


Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- SUN PVT LTD [Active] CIN = U24246RJ1984PTC003093

Company & Directors' Information:- G SUN INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC071425

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- SUN INDIA CORPORATION PRIVATE LIMITED [Strike Off] CIN = U65991TN1943PTC000994

    Miscellaneous First Appeal No. 81 of 2011

    Decided On, 26 February 2019

    At, High Court of Gauhati

    By, THE HONOURABLE MR. JUSTICE SUMAN SHYAM

    For the Appearing Parties: N.K. Das, Advocate.



Judgment Text

1. Heard Mr. B. Sarma, learned standing counsel, N.F. Railway as well as Ms. M. Sarma, learned counsel representing the respondent.

2. This appeal has been preferred against the judgment and order dated 28-02-2011 passed by the learned Railway Claims Tribunal (RCT), Guwahati Bench, Guwahati in O.A. III/GHY/2004/0139 whereby the learned Tribunal had allowed the claim of the respondent for refund of excess freight charges and issued a direction upon the railways for payment of a sum of Rs. 1,46,218/- along with interest @ 6% per annum to be calculated from the date of filing of the claim. The learned RCT has also directed the appellant to pay a further sum of Rs. 3200/- as cost of application and an amount of Rs. 2450/- as lawyers fee.

3. The fact of the case, in a nutshell, is that 40 wagons of potato were booked by the consignor i.e. the respondent No. 1 from Doraha to Jorhat Town under R.R. No. D316881 dated 18-12-2003. At the time of booking the wagons, the total amount of freight charges paid by the consignor was Rs. 14,63,000/-. The endorsee/ consignee of the freight was M/s Iqbal Farm. On 24-12-2003, the consignee had issued a letter to the Chief Claimant Officer, N.F. Railway, Maligaon, Guwahati requesting for interception (diversion) of the rake stating that the 40 wagons of potato be permitted to be unloaded at the New Guwahati Station. Responding to the letter dated 24-12-2003, the Chief Claims Officer had issued a W.T. message dated 24-12-2003 allowing the consignee to unload the consignment at the New Guwahati Station. The aforesaid request was allowed on payment of Rs. 12,000/- as interception fee. Thereafter, the respondent No. 1 had lodged a claim for refund of the excess freight which was repudiated by the railway. Situating thus, the respondent No. 1 had issued a notice under Section 106 of the Railways Act, 1989 demanding payment of the excess freight. However, when the appellant had failed to respond to the aforesaid notice, the respondent No. 1 as claimant, had approached the learned Railway Claims Tribunal (RCT) by filing the aforesaid claims petition which was allowed by the impugned judgment and order dated 28-02-2011.

4. By referring to the materials available on record, more particularly, the W.T. message dated 24-12-2003, Mr. Sarma submits that the interception of the 40 wagons at New Guwahati Station was subject to the condition that no claim for refund would be entertained. The learned counsel submits that copy of the said W.T. message had admittedly been received by the respondent No. 1 without raising any protest. As such, submits Mr. Sarma, the respondent No. 1 had clearly waived its right to claim refund of the freight charges. Notwithstanding the same the learned Tribunal has erroneously allowed the claim, thereby directing the railways to refund the excess freight, which the respondent No. 1 was not entitled to receive under the law.

5. Ms. Sarma, learned counsel appearing for the respondent No. 1, on the other hand, has argued that her client had never agreed to waive its right to claim refund of the excess freight and there is no such condition contained in the W.T. message dated 24-12-2003. Ms. Sarma, submits that the contention of the learned counsel for the appellant that the claimant has agreed to waive its right to claim refund of freight charges is without any basis.

6. By referring to the a decision rendered by the Division Bench of this Court in the case of The Union of India v. M/s Indian Oil Corporation (AOD) delivered on 07-04-2010 in connection with MFA No. 49/2009, Ms. Sarma submits that the case of her client is covered by the said decision whereby the learned Division Bench has categorically held that in the absence of any undertaking to the effect that the consignee would not claim any refund of freight, it would not be open for the railways to deny the refund of such excess amount.

7. I have considered the submission made by the learned counsel for both the parties and have also perused the materials available on record. The facts in this case are not disputed. The only controversy, as noticed above, on the question as to whether the learned Tribunal had committed an error by directing the railways to refund the excess freight.

8. Mr. Sarma has clarified that there is no statutory provision or Standing Circular of the Railway Board which authorized the railway authorities to forfeit the amount of excess freight in case there is a request for interception. The only ground on which the appellant is seeking annulment of the impugned judgment is that there is an undertaking by the respondent No. 1 not to claim refund. However, from a perusal of the W.T. message dated 24-12-2003, I find that no such condition is stipulated in the said W.T. On the contrary, what the W.T. message stipulates is that the parties must take delivery of the consignment under clear signature and no claim will be entertained in future.

9. By referring to the said stipulation with the W.T. message, Mr. Sarma, learned counsel for the appellant has argued that since the respondent No. 1 has accepted the conditions in the W.T; hence, by its conduct, the respondent No. 1 is estopped from claiming refund of excess freight. I am afraid; such a submission of Mr. Sarma cannot be accepted by this Court. In the W.T. message, there is no such stipulation which even remotely indicates that any claim for refund of freight charges had been prohibited by the railways. The W.T. message merely refers to the claim regarding delivery of consignment which, in the opinion of this Court, has nothing to do with the claim for refund of excess freight charges.

10. In the case of M/s. Indian Oil Corporation (supra) the Division Bench of this Court had the occasion to deal with a similar issue wherein the railways had repudiated the claim for refund of excess freight after there was a diversion (interception) of the original route. The learned Railway Claims Tribunal had decreed the claim of the consignee therein and directed refund of the excess amount. Affirming the aforesaid decision of the learned Railway Claims Tribunal, this Court had held that in the absence of any undertaking by the consignee agreeing to forgo the claim for refund of freight, there was no illegality in the direction issued by the learned Tribunal. Having regard to the facts and circumstances of the present case, I am of the opinion that the ratio of the decision of the Division Bench rendered in the case of M/s. Indian Oil Corporation (

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supra) would be squarely applicable in the facts of the present case. 11. Save and except the W.T. message dated 24-12-2003, the appellant has not relied upon any other material to substantiate its claim. The impugned judgment and order of the learned RCT has also not been assailed by the learned counsel for the appellant on any other ground. Therefore, in view of what has been noted above, I am of the view that there is no illegality in the judgment and order dated 28-02-2011 warranting interference by this Court. Consequently, this appeal is held to be devoid of any merit and is, accordingly, dismissed. The appellant may now refund the excess freight in accordance with law. Send back the LCR.
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