Gauhati High Court
Hulash Chand Choraria And Ors. vs Union Of India (Uoi) on 26 March, 2003
Equivalent citations: I(2004)ACC385, 2004ACJ1272, AIR2003GAU151, AIR 2003 GAUHATI 151, (2004) 13 ALLINDCAS 525 (GAU), (2003) 3 GAU LR 211, (2004) 1 TAC 769, (2004) 1 ACC 385, (2004) 2 ACJ 1272, (2003) 8 INDLD 369
Author: S.K. Kar
Bench: S.K. Kar
JUDGMENT S.K. Kar, J.
1. This is an appeal under Section 23 of Railway Claims Tribunal Act, 1987 (in short, RCT)' arising out of Application No. 67/91 challenging the order dt. 28-2-97 passed by the learned Railway Claims Tribunal, Guwahati, refusing to condone delay. Interestingly the present appeal also has been filed admittedly after the expiry of a period of 59 days beyond period of limitation and appeal was admitted deferring decision on prayer for the condonation of delay till the hearing of the appeal on merit.
2. The appellant, M/s. Hulash Chand Choraria and others of Kalibari Road, Silchar, submitted that a consignment of 90 bags of sugar was booked from Padrauna, (N.E. Rly.) to Silchar under invoice No. 24/ 238490, dated 28-3-1988. The consignment reached at the destination on 14-5-1988 after abnormal delay in damaged condition and 1770 Kg + 223 Kg. of sugar was delivered short. The appellant preferred claim for the loss quantified at Rs. 15644.00 at the rate of Rs. 800.00 per quintal.
3. That the Railways/respondents offered a sum of Rs. 1254.00, vide letter No. C/61/ LP/399/SCL/88 HV dated 29-6-88 against the aforesaid claim of Rs. 15644.00, which was not accepted by the appellant. The appellant thereafter filed the claim petition before the Railway Claims Tribunal on 24th of May, 1991 after expiry of statutory period of 3 (three) years with a statement under column 7(f) of the claim-petition which goes as follows :--
"(f) That against the above claim for Rs. 15644.00, the Rly. offered Rs. 1254.00 arbitrarily vide their letter dt. 29-6-88 which was not accepted by the applicant vide their letter dt. 18-8-88. Fresh time or limitation will run from 29-6-88 the date of acknowledgment of liability. However, delay in terms of Sec. 17(2) of the RCT Act was due to expectation of the settlement of the claim by the Rly., changing over from old to new Rly. Act and RCT Act and also law and order situation in Assam, flood in Barak Valley, communication of papers, signatures, Bank draft from Silchar to Guwahati. The Hon'ble Tribunal may kindly condone the delay."
4. The learned Claims Tribunal held that there was a delay of 57 days in filing the claim petition but the statement given in the petition was not considered at all. The RCT held that there was no separate application filed asking for condoning the delay. The relevant observation of the Tribunal goes as follows :--
"In our opinion under the provisions of Section 17(2) of the RCT Act, 1987, the delay in filing the claim application can only be condoned if a proper written application along with an affidavit is made to the Tribunal for condonation of delay. In this case, no proper application has been made. The decision of the, Hon'ble Delhi High Court cited by the Counsel is of no help to him. The Hon'ble Delhi High Court in a very recent judgment R.C. Choudhury v. Prestige Finance and Chit Fund Co. (P) Ltd. (AIR 1996 Delhi 382) held that a written application for condonation of delay is necessary. In this case the judgment reported in AIR 1979 Delhi 26 was considered and after consideration it was held by the Hon'ble Delhi High Court that the written application for condonation of delay is necessary. In this case, the Applicant has not filed any proper application for condonation of delay. Therefore delay cannot be condoned".
Thus, the ground mentioned for not condoning the delay was non-presentation of a separate petition asking for the same, without taking note of statement on column 7(f) of the claim -- petition.
5. In this context, we may refer to the provision of S. 17 of the Railway Claims Tribunal Act, 1987, which goes as follows :--
"17. Limitation.-- (1) The Claims Tribunal shall not admit an application for any claim.
(a) Under Sub-clause (i) of Clause (a) of Sub-section (1) of Section 13 unless the application is made within three years from the date on which the goods in question were entrusted to the railway administration for carriage by railway;
(b) Under Sub-clause (ii) of Clause (a) of Sub-section (1) or, as the case may be, Sub-section (IA) of Section 13 unless the application is made within one year of occurrence of the accident;
(c) Under Clause (b) of Sub-section (1) of Section 13 unless the application is made within three years from the date on which the fare or freight is paid to the railway administration :
Provided that no application for any claim referred to in Sub-clause (i) of Clause (a) of Sub-section (1) of Section 13 shall be preferred to the Claims Tribunal until the expiration of three months next after the date on which the intimation of the claim has been preferred under Section 78-B of the Railways Act.
(2) Notwithstanding anything contained in Sub-section (1), an application may be entertained after the period specified in Sub-
section (1) if the applicant satisfies the Claims Tribunal that he had sufficient cause for not making the application within such period".
6. A plain reading of Section 17 of R.C.T. Act will make it clear that it is a self-contained law and there is nothing to show that there should be a separate application asking for condonation of delay. Only requirement of law given by Section 17(2) is to show 'sufficient cause' to the satisfaction of the Tribunal (RCT) for not making the application within the statutory period of three years. So, the order of the learned RCT to that effect was not correct. Merit apart the explanation given in petition explaining the delay should have been considered and then either be allowed or rejected. The provision is not to be confused as has been rightly argued by appellant, with Section 5 of Limitation Act or with Order 41, Rule 3-A of CPC. But then, after going through these statements I find that there is no definite assertion of facts and the grounds shown to explain the delay are vague and baseless.
7. Be that as it may, this appeal can be decided on merit only when prayer for condonation of delay of 59 days in presenting the appeal is allowed. Admittedly, from the contents of the petition for condonation the petitioner/appellant applied for copy of the impugned order of the Tribunal on 5-3-1997 and copy was supplied on 15-12-98. It is seen one Rajesh Agarwala presented the original claim application for and on behalf of Hulash Chand Choraria & Brothers, Silchar. But the present application for condonation was filed under signature of the learned lawyer (Sri H.P. Barman) and affidavit to that effect was sworn by one Mukesh Jalan of Athgaon, Guwahati claiming to be son of Chand Jalan of Athgaon; Guwahati. There is nothing to show the connection of this person with the original applicant Rajesh Agarwal of Silchar. Moreover, the illness of Chand Jalan has nothing to do with the appeal to be presented in time by Rajesh Agarwal. Therefore due to the insufficiency of materials, the delay in presenting this appeal also cannot be condoned. The appellant was all along careless and callous to claim relief. The appeal is barred by time and is dismissed as not maintainable also upholding the decision of RCT on merit.