Full Judgment Text
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PETITIONER:
BIRLA CEMENT WORKS
Vs.
RESPONDENT:
G.M., WESTERN RAILWAYS & ANR.
DATE OF JUDGMENT02/01/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
VENKATACHALA N. (J)
CITATION:
1995 AIR 1111 1995 SCC (2) 493
JT 1995 (2) 59 1995 SCALE (1)386
ACT:
HEADNOTE:
JUDGMENT:
1. The petitioner is a manufacturer of
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cement at Chittorgarh in Rajasthan. It had transported
cement to various destinations through railway carriages.
Prior to 3.5.1989, the petitioner got the cement transported
through meter gauge from the railway siding at Chanderia.
After conversion into broad gauge the railway siding was at
Difthkola Chittor Broad Gauge Rail Link. In consequence 34
kilometers’ distance was added to levy freight charges.
Thereafter, between May-June, 1989 and March, 1990 the
petitioner had, various consignments, booked and transported
the cement to diverse destinations and paid the freight
charges. Later, on January 21, 1991, the petitioner has
sent a notice to the Western Railway under Section 78-B of
the Indian Railway Act, 1890, (for short, ’the Act’),
claiming refund of different amounts. Since it was
rejected, on 23.12.1991 the petitioner laid the claim under
s. 16 of the Act before the Railway Claims Tribunal at
Jaipur, which by its Order dated 25.11.1992, dismissed the
petition holding as being barred under s.78B of the Act.
When it was challenged in Civil Appeal No.84/93 and batch
the Single Judge of the High Court by his order dated
25.1.1994 dismissed the same. On further appeal No.76/94,
the Division Bench by order dated 3.10.94 confirmed the
same. Thus, these Special Leave Petitions.
2. The principal contention raised by the petitioner is
that it had discovered the mistake when the railway
authorities have confirmed by their letter dated 12.10.1990
that they have committed mistake in charging excess freight
on wrong calculation of distance. The limitation starts
running from the date of discovery of mistake and, therefore
stands excluded by operation of s.17(1)(c) of the Limitation
Act, 1963 Act 21 of 1963 and that s.78-B has no application
to the facts in this case. In consequence, the High Court
and the Tribunal have committed error of law in rejecting
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the claim for refund. We find no force in the contention.
3. Section 17(1)(c) of the Limitation Act, 1963, would
apply only to a suit instituted or an application made in
that behalf in the civil suit. The Tribunal is the creature
of the statute. Therefore, it is not a civil court nor the
Limitation Act has application, even though it may be held
that the petitioner discovered the mistake committed in
paying ’over charges’ and the limitation is not saved by
operation of s. 17(1)(c) of the Limitation Act.
4. Section 78-B of the Act provides that a person shall
not be entitled to refund of over-charge or excess payment
in respect of animals or goods carried by railway unless his
claim to the refund has been preferred in writing by him or
on his behalf to the railway administration to which the
animals or goods were delivered to be carried by railway
etc. within six months from the date of the delivery of the
animals or goods for carriage by railway. The proviso has
no application to the facts of this case. An over charge is
also a charge which would fall within the meaning of s.78-B
of the Act. Since the claims were admittedly made under
s.78-B itself but beyond six months, by operation of that
provision in the section itself, the claim becomes barred by
limitation. Therefore, the Tribunal and the High Court have
rightly concluded that the petitioner is not entitled to the
refund of the amount claimed.
5. We do not find any ground for our interference with
the orders challenged in S.L.Ps. The Special Leave Petitions
are accordingly dismissed.
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