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Gauhati High Court

M/S Maheswari Enterprises vs Union Of India on 25 April, 2017

Author: Kalyan Rai Surana

Bench: Kalyan Rai Surana

                      THE GAUHATI HIGH COURT
          (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
                       ARUNACHAL PRADESH)

                                   MFA 122 of 2004

       M/S. MAHESWARI ENTERPRISES & CO.                              .....Petitioner
                                          -Versus-
       UNION OF INDIA                                                .....Respondent


                                        BEFORE
                 HON'BLE MR. JUSTICE KALYAN RAI SURANA

       Advocates for the Petitioner          : Mr. O.P. Bhati, Mr. A. Biswas,
                                             : Mr. R. Kalita, Mr. K.P. Maheswari,
                                             : Ms. S. Sarma.

       Advocates for the Respondents         : Mrs. B. Devi.

       Date of hearing and order             : 25.04.2017.



                           JUDGMENT AND ORDER (ORAL)

1. Heard Ms. M. Sarma, learned counsel for the appellant as well as Dr. B.N. Gogoi, learned counsel appearing for the respondent.

2. The short issue involved in the present appeal is that whether the judgment dated 06.09.2004 passed by the learned (T) Railway Claims Tribunal, Guwahati Bench at Guwahati in application No. 229/1999 is sustainable on the ground of failure on part of the learned Railway Claims Tribunal to follow the mandatory procedure of Rule 21 of the Railway Claims Tribunal (Procedure) Rules, 1989.

3. It appears from the order dated 13.10.2004 passed by this Court that the initial plea taken by the appellant before ths Court was that the decision of this Court in the case of Bhagwati Prasad Pawan Kumar vs. Union of India, reported in 2000 (3) GLT 66 is not applicable. This Court has recorded in the said order dated 13.10.2004 that no force was found in the aforesaid plea. However, on the submission made by the learned MFA 122/2004 Page 1 of 5 counsel for the appellant that a similar matter, being MFA 118/2004 was admitted for hearing, this present appeal was directed to be tagged along with MFA 118/2004. Incidentally, the said MFA No. 118/2004 was withdrawn today, owing to which the said appeal was dismissed on withdrawal.

4. The learned counsel for the appellant has relied on the judgment dated 21.04.2016 passed by this Court in MFA 41/2009, wherein this Court had opined that the judgment impugned therein was wholly cryptic in nature as it did not discuss the pros and cons of the case, for which without commenting on the merit of the case, the matter was remanded to the learned Tribunal for passing necessary judgment/orders by framing issues for adjudication and to allow the parties to adduce evidence and to exhibit necessary documents.

5. The learned counsel for the appellant had referred to the letter dated 29.10.1999, by which the cheque for Rs.6,042/- was forwarded to the appellant and she submits that the said letter was unsigned, for which the said letter had no legal validity. She further submits that in the notice under Section 106 (1) (2) (3) of the Railway Act, 1989 which was issued on 12.10.1998, the appellant had taken a plea that the payment offered against the claim without any prior written consent will be treated as part payment and action would be taken for recovery of the balance due and unpaid part of the claim. She also refers to paragraph No. 4 and 5 of their written argument before the Railway Claims Tribunal to project that the plea of full and final settlement of Rs.6042/- towards payment of the entire claim amount was not acceptable as it was only on part payment. This Court while considering the said argument is of the opinion that a protest of insufficient payment cannot be made prior to the receipt of money but protest is required to be lodged at the time of receiving of said money and before the same is encashed or appreciated. In the present case in hand, there is nothing on record to show that a protest of insufficient payment against the claim was made either at the time of receiving the cheque or before encashment.

6. In the present case in hand, the claim petition filed by the appellant herein was rejected by the impugned judgment dated 06.09.2004 passed by the Railway Claims Tribunal, Guwahati Bench at Guwahati in application No. 229/1999 on the ground MFA 122/2004 Page 2 of 5 that the respondent herein i.e. Railways had made payment to the appellant vide Cheque No. 11448 dated 12.06.2000 for Rs.6,042/-. Therefore, the present case was squarely covered by the judgment of this Court in the case of Bhagwati Prasad Pawan Kumar vs. Union of India, reported in 2000 (3) GLT 66, for which the case was liable to be dismissed. The relevant paragraph in the aforesaid judgment is as follows:

10. Section 63 of the Contract Act also deals with acceptance of some lesser amount but in lieu of a larger amount promised and the promise may dispense with the rest of the claim or may extend the time of performance of the promise. The acceptance may be in full satisfaction for any amount or condition. It covers different kinds of cases which will be evident from various illustrations of Section 63. The difference is evident in transactions under Section 63 of the Contract Act. The promise is there but it is relaxable by the promise, whereas in the case of relaxation on the part of the promise regarding the promise made. To further explain it may be observed that as for example, in the case in hand the offer or the promise is only in respect of lesser amount as compared to the amount claimed. There is no promise on the part of the promisor to pay the higher amount or the amount claimed. If the higher amount is promised to be paid, the promise may accord its satisfaction for a lesser amount of may extend the period of performance of the promise. It is accepting something to the full satisfaction which may be less than the promise made. In the present case in hand, there was no promise made for payment of the amount claimed. As a matter of fact, liability of higher amount was never accepted or admitted. The claim was settled on lesser amounts which alone was a promise for that amount to be paid, namely, Rs.9000/- and odd on certain condition. Such a case would fall within the forecorner of Section 8 of the Contract Act.

The promise was an offer for a sum of Rs. 9000/- and odd and it was open for the promise to accord its satisfaction on still lower amount for payment in such cases Section 63 would apply. The distinction between the two provisions is clear and unambiguous. In cases, covered under Section 63 of the Contract Act, once the MFA 122/2004 Page 3 of 5 promise in full satisfaction of a larger amount promised to be paid, accepts lesser amount, he cannot subsequently relies and claim the higher amount as was promised. That is not the case in hand. It was only the claim which was for a higher amount and that was not an amount promised to be paid. The respondent had made the offer to the appellant for payment of amounts to which extent the liability can be said to have been admitted and the rest of the claim was not admitted. Therefore, the cases as decided in context with or by application of Section 63 of the Contract Act would be applicable, as in the present case. The view taken by the learned Single Judge in the case of Bhagchand (supra) is the correct view. The case of Amrit Bnaspati (supra) has been rightly followed and other cases have been rightly distinguished. It is not open to take an attitude " I shall accept the benefit, but reject the condition." Offer is either to be accepted or rejected in terms of the conditions of the offer. Where acceptance or rejection of the condition is dependent upon conduct of the party which is decisive of exercising acceptance or rejection, Section 8 of the Contract Act would come into play. Cheque having not been returned, rather encashed, would lead to the only conclusion that the offer made was accepted. The conduct of the appellant demonstrated the same. Merely writing that the cheque was placed under protect is the inconsequential. The notice which was given by the claimant/appellant, as indicated earlier, was only in respect of the balance amount. In our view, the distinction which has been drawn in the unreported decision in Second Appeal No. 77/82 (Messers Assam Bengal Careals Limited V. Union of India) with the decision in the case of Bhagchand (supra) on the ground that there was a protest before encashment of the cheque is not a feature which may make any real distinction in the legal position.

11. For the reasons indicated above, in our view, the law laid down in the case of Bhagchand (supra) is the correct law. In the result the appeal is dismissed.

7. In light of above, in the opinion of this Court as in the present case, the amount of Rs.6,042/- was received without any protest and this Court is bound by the said judgment passed by the Hon'ble Division Bench of this Court, the said situation is being squarely covered by the case of Bhagwati Prasad Pawan Kumar (supra). Therefore, this Court does not find any infirmity in the judgment impugned in the present appeal.

8. Therefore, by the non-framing of issues no infirmity is caused as the appellant is not found to have suffered any prejudice and, as such, the present appeal stands dismissed.

9. There shall be no order as to cost.

JUDGE Mkumar.