Madras High Court
M/S.Rashtriya Ispat Nigam Ltd vs The Union Of India Owning South on 2 September, 2014
Author: R.Subbiah
Bench: R.Subbiah
In the High Court of Judicature at Madras Dated : 02.09.2014 Coram The Honourable Mr.Justice R.SUBBIAH C.M.A.No.230 of 2014 and M.P.No.2 of 2014 M/s.Rashtriya Ispat Nigam Ltd., Rep. by its Senior Branch Manager, Viskhapatnam Steel Plant, 2nd Floor, India Garage Building, New No.241 (Old No.184), Anna Salai, Chennai-600 006. ....Appellant Vs. 1.The Union of India owning South, Eastern Railway, rep. by its General Manager, Kolkatta. 2.The Union of India owning Southern, Railway rep. by its General Manager, Chennai-600 003. 3.The Chief Claims Officer, Southern Railway, Moore Market Complex, 5th Floor, Chennai-600 003. ....Respondents Civil Miscellaneous Appeal has been filed under Section 23 of the Railway Claims Act, against the order dated 02.11.2011 made in O.A.(III).No.02/2008 on the file of the Railway Claims Tribunal, Chennai Bench. For Appellant : Mr.P.T.Asha (for M/s.Saravahauman Associates) For Respondents : Mr.J.Hari Krishna JUDGMENT
The present appeal has been filed by the appellantchallenging the order dated 22.11.2011 in O.A.(III).No.02 of 2008 passed by the Railway Claims Tribunal, Chennai Bench.
2.The appellant herein viz., M/s.Rashtriya Ispat Nigam Limited is the claimant before the Railway Claims Tribunal. The brief case of the claimant-company is as follows_ 2(a)They are the manufacturer of the steel and other allied products and they have been using the services of the respondents-Railway to transport their products to different parts of the country, by loading their materials into the wagons belonging to the respondents-Railway. The consignments are being despatched under the invoices of the respondents-Railway and the invoices contain details about the description, measurement/weight, rate, type of wagon, total amount paid etc. 2(b)During the period from 07.09.2004 to 11.11.2004, the appellant/claimant had consigned materials through the respondents-Railway under 59 invoices and the present claims relate to these invoices. The Divisional Commercial Manager of the 2nd respondent had made a demand for a sum of Rs.10,082/- under Bill No.C253/E.A./E.Coast Rly/MAS/997/1/3, Sep-04, Oct.04, dated 19.01.2005. Under R.R.No.E.395475, dated 15.09.2004, for transporting the WR Coils from Vishakapattinam Steel Plant Siding to VSPS, Tondiarpet, a sum of Rs.40,827/- has been paid by the appellant/claimant. In spite of the said payment, the Divisional Commercial Manager had further collected a sum of Rs.10,082/-, as there was error in calculation of freight, and the appellant/claimant had also paid the said amount under protest. The said amount of Rs.10,082/- was calculated on the basis of a chargeable weight of 61.10 mts.
2(c)It is further case of the appellant/claimant that as per the advance Rate Notification for Rate Advice No.2/2002, dated 14.05.2002, issued by D.R.M.C, Chennai, the carrying capacity for a Box Wagon is only 46 MT. For the W.R.Coils transported under R.R.No.E395474, on the same day ie., on 15.09.2004, the respondents had charged only the carrying capacity basis of 46 MTS and the appellant/claimant had paid a sum of Rs.40,827/-. Therefore, the sum of Rs.10,082/- charged under the head of excess freight towards R.P.No.E395473 dated 15.09.2004 has to be refunded to the claimant. Apart from collecting the said amount of Rs.10,082/- as excess freight charges, the respondents had raised a claim for Rs.5,59,641/- & Rs.93,902/- under Bills dated 18.10.2004 and 02.12.2004 respectively, stating that the said amounts are charged by the respondents-Railway as per the revised policy. The said amounts have also been paid by the appellant/claimant under protest. The said freight charges have been collected by the respondents-Railway, as per the Circular bearing No.CCM/356/Policy/Part-1/04(Sl.No.98/04), dated 30.09.2004 issued by CCM, East Coast Railway, Bhubaneswar, which has subsequently been received by CGS, VSPS only on 08.10.2004. Thereafter, the said revised policy was communicated to the claimant only on 13.11.2004. It is stated by the claimant that the 2nd respondent's clerk, in-charge of the claimants siding at Manali, Chennai, has also confirmed the date of receipt of the said circular as 08.10.2004.
2(d)It is the case of the claimant that since the revised policy has been communicated to the claimant only on 13.11.2004, the respondents-Railway cannot charge on the revised charges for the transportation of the consignments took place between 07.09.2004 and 11.11.2004. The said freight charges were paid by the claimant only under protest. Hence, on 05.07.2006 the claimant lodged a claim before the 3rd respondent claiming refund of the excess freight charges of Rs.7,01,625/- (10,082 + 93,902 + 5,97,641 = 7,01,625), which was paid by the claimant under protest. Since there was no response from the 3rd respondent, the claimant sent reminder dated 01.12.2006, to which the 2nd respondent sent a reply dated 13.03.2007 stating that the claim was being examined and they would advise the claimant in due course. But, thereafter, there was no response from the respondents. Hence, the claimant has filed the claim petition before the Tribunal, seeking a direction to the respondents to refund the excess freight charges of Rs.7,01,625/- collected from the claimant, together with interest @ 24% pa, from 05.07.2006 till the date of realization. The break up details of the claimed amount are as follows_
(a)Excess amount charged under R.R.No.395474 : Rs.10,082/-
(b)Excess amount charged for CC+2 tonnes for
BRN wagons : Rs.93,902/-
(c)Excess amount charged for BOST wagons
fixed as CC+3 tonnes : Rs.5,97,641/-
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Total Rs.7,01,625/-
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3(1).The case of the claimant was resisted by the respondents, by filing a counter statement contending that the claimant has booked 59 invoices of Iron and Steel materials on BOXN, BOXT, BRN wagons, from Ex.Visakapattinam Steel Plant siding, Visakhapattinam to Visakhapattinam siding Tondiarpet, during the period between 07.09.2004 and 11.11.2004. The consignment booked under Invoice No.291, RR No.395475 of 15.09.2004 is WR Coil on BOXN wagon, the weight of the consignment was charged as 490 Qtls, and the freight charges of Rs.40,827/- was collected for 490 Qtls. The weight of the consignment has to be charged as carrying capacity + 2 (CC+2) tones on that date and accordingly, the weight charges should be 603 Qtls (CC58.3 +2 tonnes). But, the Senior Travelling Inspector of Accounts, Madras has raised a debit of Rs.10,082/- for 611 Qtls, which is not in order. Thus, the respondents-Railway admitted that the claimant is entitled to the refund of the said amount of Rs.10,082/-, which was collected excessively.
3(2).With regard to the other consignments, it is the defence of the respondents-Railway that the Bost Wagons booked from 17.09.2004 to 08.11.2004 from Ex.Vishakapattinam Steel siding to VSPS, Tondiarpet, the station authority at Vishakapattinam Steel siding has charted the weight consignment (Iron/Steel) for the Carrying Capacity weight of the wagons. But, the consignment has to be charged as CC + 3 tonnes as per Rate Advice No.9/2004 (Goods No.70/04) with effect from 16.09.2004. Hence, after delivery, Sr.TIA/Rates/MAS has raised a total debit of Rs.5,94,641/- for BOST wagon booked under 50 Invoices vide debit Memo SKB/19.04.05, dated 18.10.2004, which are in order. The claimant's request for refund was regretted by the respondents.
3(3)Further, for the BRN wagons booked from Vishakapattinam steel plant siding to Vishakapattinam steel siding, Tondiarpet, during the above said period, the station authorities had charged the weight of the consignment (Iron & Steel) for the carrying capacity of the wagon, whereas the weight of the commodity has to be charged as CC + 2 tonnes, as per Rate advice No.9/04 (Goods No.70/2004). Accordingly, after delivery, Sr.TIA/Rates/MAS has raised a debit of Rs.93,902/- vide letter No.SN/Rates/MAS/SSK/CDM 2004/VRST/VSPT, dated 02.12.2004. The respondents denied that the claimant is entitled to claim any amount much less Rs.7,01,625/- with 24% interest, since the undercharge collected from the claimant is in order. Thus, the respondents-Railway sought for dismissal of the claim petition.
4.Before the Tribunal, to prove their case, on the side of the claimant, one Mr.A.P.Sekar, Senior Branch Manager of the claimant-company, was examined as A.W.1 and fourteen documents were marked as Ex.A.1 to Ex.A.14. On the side of the respondents, letter of repudiation, dated 16.10.2007, was marked as Ex.R.1 and no witness was examined.
5.The Tribunal, after analyzing the entire evidence, has directed the respondents-Railway to refund the amount of Rs.10,082/- to the claimant, which was wrongly collected by the respondents, with simple interest at the rate of 9% per annum from the date of filing the claim petition till actual payment. The Tribunal has dismissed the claim petition in respect of the other claims viz. Rs.93,902/- and Rs.5,97,641/-, collected towards CC+2 tonnes for BRN wagons and for BOST wagons fixed as CC+3 tonnes respectively. Aggrieved over the same, the present appeal has been filed by the claimant/appellant.
6.Heard the submissions made on either side and perused the materials available on record.
7.It is the main submission of the learned counsel for the appellant/claimant that during the period from 07.09.2004 to 11.11.2004, the claimant-company has sent materials through Railway under 59 invoices. According to the learned counsel for the appellant/claimant, under RR No.E395475, dated 15.09.2004, the appellant/claimant has excessively paid the freight charges of Rs.10,082/- in view of the wrong calculation made by the Divisional Manager of the Railways. However, the appellant/claimant had paid the said amount under protest. That apart, the Railways had raised Bill No.S.K.G./19/04-05, dated 18.10.2004, for a sum of Rs.5,97,641/- for BOST wagons fixed as CC+3 tonnes, and similarly, Bill No.SR/RATES/MAS/SSK/CRV/2004/VSPT, dated 02.12.2004, for a sum of Rs.93,902/- for BRN Wagons fixed as CC+2 tonnes. The demands were made by the respondents-Railway, based on the revised policy vide Circular dated 16.09.2004 viz., Rate Advice No.9 of 2004, which came into force with effect from 16.09.2004.
8.It is the submission of the learned counsel for the appellant/claimant that the respondents-Railway cannot claim the freight charges based on the circular dated 16.09.2004, since the said circular was communicated to the claimant/appellant only on 13.11.2004 and that the said circular can be made applicable to the consignments booked for transportation after 13.11.2004 and the said circular cannot be applied retrospectively, with regard to the consignments booked by the claimant/appellant herein for transportation prior to 13.11.2004. According to the learned counsel for the appellant/claimant, the Tribunal without looking into this aspect, has dismissed the claim petition filed by the appellant/claimant. Thus, the learned counsel for the appellant/claimant submitted that by considering this aspect, the Tribunal ought to have directed the respondents-Railways to refund the amount of Rs.6,91,543/-, paid by the appellant/claimant under protest. In this regard, the learned counsel for the appellant/claimant relied on the judgments reported in (2001) 8 SCC 443 [State of W.B. Vs. M.R.Mondal] and AIR 2007 Cal 1 [Divisional Railway Manager, Eastern Railway, Sealdah Vs. Kalighat Railway Plot-holders Association & anr].
9.Per contra, it is the submission of the learned counsel for the respondents-Railway that the circular issued by the Government deem to be applicable from the date of issuance of the circular itself. But, in the instant case, consignments were booked between 07.09.2004 and 11.11.2004 and the said circular was issued on 16.09.2004, ie., well within the said period of transaction. Therefore, it is incorrect to state that the circular will take effect only from 13.11.2004 ie., the date of the receipt of the communication about the said circular by the appellant/claimant. The Tribunal, by considering all these aspects, has correctly rejected the claim made by the appellant/claimant. Thus, the learned counsel for the respondents-Railway submitted that no interference is necessary from this Court with the order passed by the Tribunal.
10.In view of the submissions made on either side, now, the question that falls for consideration is, whether the circular dated 16.11.2004 issued by the Government, revising the freight charges, will come into force from the date of issuance of the circular or from the date of receipt of the communication about the circular by the appellant.
11.According to the learned counsel for the appellant/claimant, they received the communication about the said circular only on 13.11.2004, therefore, revised freight charges will be applicable to the consignments booked for transportation by them only after 13.11.2004. In support of this contention, the learned counsel for the appellant/claimant relied on the decision reported in (2001) 8 SCC 443 (stated supra). But, the factual aspects of the said case would show that the said judgment deals about the order passed as against an individual person, which was retained in the file without communicating the same to the concerned person and the said judgment does not speak about a circular. So far as a circular issued by the Government is concerned, it will be applicable to the general public and it takes effect from the date of issuance of the circular. Therefore, the said judgment relied on by the learned counsel for the appellant/claimant cannot be made applicable to the present facts of the case.
12.The factual aspects of the another judgment relied on by the learned counsel for the appellant reported in AIR 2007 Cal 1 (stated supra), would show that licences had been given to the members of the respondent-Association therein for using the plots belonging to the Eastern Railway, appellant therein, in connection with the business of various natures, like dumping of stone chips, coal, cement etc, by raising structures/erecting stalls in the plots. Pursuant to the said licences, they were in possession continuously for several years. While so, the Railway Department revised the licence-fees for the commercial plots vide., Railway's circular dated 29.08.1995, with retrospective effect from 1st April, 1986 ie., after lapse of 10 years. Only under such circumferences, the Hon'ble Supreme Court had set aside the order passed by the Railway department in that case stating that the decision of the Railway department would be effective from the date of communication of the decision to the licensee and not from an earlier point of time.
13.But, in the instant case, the consignments were booked during the period from 07.09.2004 to 11.11.2004 and the circular was issued by the Railway department during the said period itself ie., on 16.09.2004. Therefore, the said circular would take effect only from the date of issuance of the circular itself. Therefore, the appellant/claimant cannot contend that the said circular would take effect only from the date of receipt of communication about the same by the appellant/claimant. As such, the above cited judgments cannot be made applicable to the present facts of the case.
For the foregoing reasons, I do not find any infirmity in the impugned order passed by the Tribunal. There is not merit in the present appeal and the same is accordingly dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
02.09.2014 Internet: Yes / No Index : Yes / No ssv Copy to
1.The Railway Claims Tribunal, Chennai Bench.
R.SUBBIAH, J., ssv Pre-delivery judgment in C.M.A.No.230 of 2014 and M.P.No.2 of 2014 02.09.2014