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Though this appeal is coming on for admission, with the consent of the learned counsel for the appellants and the respondent, arguments are heard on merits.

2. The respondent before the Tribunal is the appellant in this appeal. This appeal is filed for setting aside the impugned order dated 15.6.2012 in O.A. No.III 1/2009 passed by the Railway Claims Tribunal, Bengaluru Bench at Bengaluru.

3. The appellant is the Union of India represented by (i) the General Manager, South Western Railway, Hubli, (ii) South Central Railway, Secunderabad. The facts briefly stated are that the respondent M/s Mineral Enterprises Pvt. Ltd., was transporting the minerals through the appellant railways from Ammasandra to Panamburu as per the rates fixed for transportation of the consignment. The distance from Ammasandra Railway Station to Panamburu was calculated as 365 Kms. and freight was charged as per the rate fixed by the railways. The freight charges were dependent on the distance between the place of loading and unloading of consignment. Later, on enquiry it was learnt that the actual distance between Ammasandra Railway Station to Panamburu post is only 359 Kms. and not 365 Kms. as charged by the appellant railways. Therefore, the respondent Company made correspondence with the railways through letters dated 3.10.2006, 5.5.2007 and 20.07.2007 requesting to take corrective action. The appellant railways settled the claim of respondent Company in respect of excess freight charges which were within the limitation period and the remaining excess charges were not paid on the reason that they are barred by limitation. Being aggrieved by the repudiation of claim for remaining excess freight charges by the railways, the respondent filed a claim petition before the Railway Claims Tribunal.

4. On appearance the appellant railways filed reply statement contending that the letter correspondence made in respect of the alleged refund of excess freight charges do not reflect or indicate that the applicant has made the claim within the period of six months. The applicant had sought the clarification only with regard to the distance from Ammasandra Railway Station to Panamburu vide their letter dated 03.10.2006, but has not made any claim in respect of the refund of excess freight charges alleged to have been paid by the applicant. The Senior Division Commercial Manager has appropriately replied the applicant about the actual distance between Ammasandra to Panamburu. The consignment of iron ore booked are charged as per the rate list of railways. On the claim of refund of the difference in freight is required to be made within six months from the date of booking of consignment, whereas the applicant has submitted the claim only on 22.8.2007 after the lapse of six months in respect of 22 RRs out of 30 RRs which has been repudiated under the letter dated 18.1.2008 whereas the balance 8 RRs were considered by the railways and refunded a sum of Rs.2,78,860/-. The freight applicable for the consignment booked by the applicant was calculated as per the distance of 365 Kms. and not 358 Kms. and the said rate was accepted by the applicant at the time of booking consignment. Thereafter the applicant has only sought for clarification with regard to the distance from Ammasandra Railway Station to Panamburu Railway Station vide their letter dated 3.10.2006 . But they have not made any claim in respect of refund of excess freight charges alleged to have been paid.

12. The main contention of the counsel for the respondent is that EX.A1 which is the letter dated 3.10.2006 has to be considered as a notice for refund of excess freight charge, and the appellant railways is under the obligation to repay the claim of Rs.8,85,000/- towards excess freight charges.

13. In view of the rival contentions the only question that arises for consideration is, whether the learned Railway Claims Tribunal has committed error in allowing the claim for refund of excess charges ?

20. EX.A5 is the letter dated 22.8.2007 which was sent by the respondent Company for refund of excess freight between 25.5.2006 to 19.07.2007 from Ammasandra station. Thus the main controversy would be whether the claim for refund of excess freight charge from 25.05.2006 to 19.7.2007 is within the prescribed limitation period as provided under Section 106 of the Railways Act of Section 78(B) of the Old Act.

21. The next contention of the respondent's counsel is that even though there are no specific recitals for claiming the refund of excess charges when there was a request for corrective action to be taken that itself is sufficient to substantiate the claim of the respondent Company to recover the excess freight charges paid by them. In this connection three decisions have been cited namely, (1) In the case of Jetmull Bhojraj vs. Darjeeling Himalayan Railway Co. Ltd., and others reported in AIR 1962 SC 1879.