SUNIL GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) Order dated 23.5.2002, passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh (for short, "the Tribunal"), in an application filed by the appellant claiming compensation, is impugned in the present appeal. Briefly, the facts as are evident from the record, are that the appellant claimed himself to be the proprietor of M/s Paul Sons, Bhatinda carrying on the business of coal supplier. He booked 20 BCN of coal from Ledo (Assam) to Bhatinda. The total rake consisted of 40 BCN. The other 20 BCN belonged to one Sushil Verma, proprietor of M/s Sushil Services, Bhatinda. The consignment was loaded and weighed at the port of origin, namely, Ledo (Assam) on 6.6.1998. It was booked vide railway receipt Nos. 582700 to 582702. On the basis of weighment slip, the appellant was charged the freight. The said consignment reached Bhatinda on 20.6.1998. The same was unloaded at the railway siding. When the appellant approached for taking delivery thereof, he was asked to deposit Rs. 4,32,974/- on account of alleged additional freight and penalty. It was claimed that on the way, the wagons were again weighed at Lasker (Saharanpur) on 19.6.1998 and finding excess weight therein, extra freight and penalty was sought to be charged. The appellant was not associated when the wagons were weighed at Lasker. As the respondents insisted for deposit of the freight and penalty before taking delivery of the consignment, the appellant did not have any choice but to accede to their demand and after depositing the amount of Rs. 4,35,751/- on 30.6.1998 took the delivery of consignment. Initially, the appellant filed a civil suit. However, ultimately the same was withdrawn as civil court did not have the jurisdiction and subsequently, a claim petition was filed before the Tribunal, which was dismissed vide impugned order, as time barred. It is this order which is impugned in the present appeal.

(2.) Learned counsel for the appellant submitted that after the consignment had reached Bhatinda and the appellant was asked to deposit additional amount on account of freight and penalty, for alleged variation in the weight loaded and actual weight found, a civil suit was filed on 22.6.1998 inter alia seeking relief for re-weighment of the consignment. Vide order dated 30.6.1998, the application for interim relief was dismissed by the trial court. However, considering that delay was causing more loss to the appellant, he ultimately deposited Rs. 4,35,751/- on 30.6.1998 with the respondents and took delivery of the consignment. The appellant filed appeal against the order of the trial court and the learned Additional District Judge, vide order dated 13.3.1999, directed re-weighment of the consignment in the presence of parties or their representatives. Though delivery of 19 out of 20 BCNs had been taken by the appellant, however, one BCN was left, which on re-weighment was found to be short by one quintal than the quantity loaded at the station of origin, whereas the weighment done on the way was showing excess quantity, which clearly established that weighment made on the way was not reliable. During the pendency of the civil suit, an application was filed by the Railways that with the constitution of bench of the Tribunal at Chandigarh, the civil court does not have the jurisdiction to decide the claim and the plaint should be returned to the appellant. Thereafter, on 19.4.2001, the suit was dismissed as withdrawn. Certified copy of the order of the civil court, which was to be annexed with the claim petition to be filed with the Tribunal was lost. After getting a fresh copy, the claim petition was filed before the Tribunal on 26.12.2001. The provisions of Section 17 of the Railway Claims Tribunal Act, 1987 (for short, "the Act") provide for limitation of three years for filing the claim petition from the date the goods are entrusted to the Railways, however, it also gives ample power to the Tribunal to condone the delay. In the present case, the appellant had approached the civil court immediately when the cause of action arose and the proceedings remained pending there for about two years and 10 months. Mere six months' time taken by the appellant in filing the claim petition before the Tribunal after withdrawal of the suit on an objection raised by the respondents, cannot be said to be delay. Section 14 of the Limitation Act comes to the rescue of the appellant. He further submitted that State should be fair enough not to raise the plea of limitation. Endeavour should be to decide the lis on merits. Reliance was placed upon Union of India v. Orissa State Electricity Board and others, 2001 AIR(Ori) 109 and Smt. Nirupama Sethi v. Union of India, 2003 AIR(Ori) 10

(3.) On the other hand, learned counsel for the respondents submitted that no doubt, there is an enabling provision under the Act giving power to the Tribunal to condone the delay in filing the claim petition, however, the ground sought to be made by the appellant is totally misconceived. There is no explanation available for the period of six months from the withdrawal of suit till filing of the claim petition. The appellant had enough time after the withdrawal of suit to file the claim petition and that would have been within limitation. The Tribunal in the given fact situation has exercised the power finding no justification for condonation of delay, the same does not call for any interference. There was no requirement of filing a certified copy with the claim petition.