MFA 224/2010. Gauhati High Court
| Case Number | MFA 224/2010 |
| Judgement Date | August 17, 2019 |
| Court | Gauhati High Court |
THE GAUHATI HI GH COURT
( THE HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)
M.F.A. No. 224 of 2010
UNI ON OF I NDI A, REP. G.M., N.F. RAI LWAYS …..Appellant
-Versus-SHREE GOPAL ENTERPRISES …..Respondent
BEFORE
HON’BLE MR. JUSTI CE KALYAN RAI SURANA
Advocates for the Appellant : Mr. U.K. Nair, Sr. Adv.
: Mr. A. Chetry, Mrs. S.P. Nair.
Advocates for the Respondent : Mr. K. P. Maheswari, Mr. A. Goyal,
: Mr. B. Maheswari.
Date of hearing : 27.07.2017.
Date of judgment and order : 17.08.2017.
JUDGMENT AND ORDER ( CAV)
Heard Mr. U.K. Nair, the learned Senior Counsel, assisted by Mr. A. Chetry, the learned Counsel appearing for the appellant - NF Railway. Also heard Ms. M. Sharma, learned counsel appearing for the respondent.
2) This appeal preferred under the provisions of section 23 of the Railway Claims Tribunal Act, 1987 is directed against the judgment and order dated
06.05.2009 passed by the learned Railway Claims Tribunal, Guwhati Bench, Guwahati, in Claim Application No. 456/ 2001. By the impugned judgment, the appellant was directed to pay the applicant a sum of Rs.60,915/ - along with interest at the rate of 7.5% per annum from the date of filing of the claim application till realization. The appellant was also directed to pay the cost of application fees of Rs.1,900/ - and Legal Practitioner’s fees of Rs.1,550/ -. I t was
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ordered that the order would not prejudice the right of the appellant herein to recover the outstanding dues from M/ s. Daurala Sugar Works as per law.
3) The facts as revealed from the record is that one M/ s. Daurala Sugar Works, as the consignor, had booked a train load of sugar at Daurala with destination at Guwahati to itself. The goods were covered by R.R. Nos. 184048 to 184050 and 466051 to 466986 all dated 21/ 24.11.2000. Freight was collected on wagon load basis instead of train load basis and, as such, a sum of Rs.60,915/ - became refundable by the Railways to the said consignor, i.e. M/ s. Daurala Sugar Works.
4) The said consignor i.e. M/ s. Daurala Sugar Works, who by booking the consignment to itself also stood in the footing of the consignee. They issued a undated “Letter of Authority cum Disclaimer Certificate”, thereby certifying that the train load sugar consignment under I nvoice No. 1 to 39, R.R. Nos. 184048 to 184050 and 466051 to 466986 all dated 21/ 24.11.2000, total 39 wagons of sugar to the respondent, M/ s. Shree Gopal Enterprises, H.M. Market, Fancy Bazar, Guwahati-1 and received the entire consignment money from them. All rights, title, etc. over the said consignment was disclaimed in their favour, inter-alia, also giving the Railway the right to settle claim with them and the right to the said transferee to claim refund from the railway.
5) As stated above, the Railways had collected freight on wagon load basis instead of train load basis and, as such, a sum of Rs.60,915/ - became refundable by the Railways. The respondent otherwise validly made the claim for such refund. The respondent i.e. M/ s. Shree Gopal Enterprises, claiming its right for the refund, made a demand for such refund by their letter dated 16.01.2001 and thereafter served Advocate’s notice dated 08.03.2001.
6) By a letter No. I / 6090- 6128/ N/ RF3/ FOC/ 2001 dated 23.08.2001, the Northern Railway authorities informed the respondent- transferee, namely, M/ s.
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Shree Gopal Enterprises, inter-alia, that they were entitled to refund of Rs.60,915/ -, but as there was a previous outstanding of Rs.45,738/ - payable by M/ s. Daurala Sugar Works to the Northern Railway since 1991 and despite reminders, the same had remained unpaid and, as such, the said sum was adjusted against the outstanding dues and balance payment of Rs.15,177/ - was being released by two pay orders No. 399333 and 399334 dated 09.08.2000 for Rs.7787/ - and Rs.7390/ - respectively. The respondent returned the said pay orders as a protest.
7) For claiming the entire refund of Rs.60,915/ -, the respondents approached the learned Railway Claims Tribunal, Guwahati Bench, Guwahati and filed their claim application, which was registered as Claim Application No. 456/ 2001. The appellant on receipt of notice filed their show cause reply, stating that the pending dues of the year 1991 were rightly adjusted.
8) On the basis of pleadings, the following issues were framed by the said learned Tribunal; viz.
1. Whether the legal and valid notice under the...
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