Union Of India (Uoi) vs Tata Iron And Steel Co. Ltd.
2006 Latest Caselaw 51 Bom

JUDGMENT

Sathe S.R., J.

1. The Union of India represented by General Manager of Central and South Eastern Railways have filed this appeal against the judgment and order passed by the Member, (Technical) Railway Claims Tribunal, Bombay in T.A. No. 1140 of 1990, whereby, the appellants were directed to pay Rs. 8654-70 and interest on the said amount at the rate of 18% p.a. from the date of filing of the application till payment and costs to the present respondents i.e. Tata Iron and Steel Co. Ltd. Bombay i.e. present respondents. For the sake of convenience hereafter the parties shall be referred to as the appellants and respondents.

2. Brief facts giving rise to this appeal are as under :

The respondents filed suit claiming compensation for short delivery of goods (C.C. Sheets) booked Ex Jamshedpur to Vidyavihar, Bombay. They claimed compensation of Rs. 8654-70 and interest on the said amount.

3. The appellants, original defendants filed their written statement and opposed the suit claim on several grounds. They contended that the person who signed the plaint had no authority to file the suit. They also denied that there was shortage of delivery as alleged and as a result of the same the plaintiffs suffered loss. According to them the Claims Tribunal, Bombay had no territorial jurisdiction to try the claim filed by the appellant. Hence on all these grounds they prayed for dismissal of the suit/claim.

4. On these pleadings the Railway Claims Tribunal framed issues and respondents, original plaintiffs filed affidavit of evidence of their Assistant Divisional General Manager on 8-11-1991. Thereafter hearing was adjourned from time to time. One Shri Jankasingh had appeared in the said matter as a Presenting Officer on behalf of Applicants i.e. Union of India, Central and South Eastern Railways. However on 8-6-1993 Advocate S.K. Purohit filed his vakalatnama on behalf of the appellants. As none of the parties adduced further evidence, the evidence of both sides was closed on 15-4-1994. On that day Presenting Officer submitted that the application has been filed by the Railway Administrative for cross examination of the witness of the respondents. However, it was brought to his notice by the Tribunal that no such application has been filed. Thereupon, Presenting Officer submitted one letter stating such letter was filed in the Tribunal Office. The said letter was not bearing any name or designation of the person who had signed it. Advocate Purohit who was representing the respondents made submission that he had no knowledge as to who had given the application for cross-examination. Hence the Tribunal directed the present appellants to produce the claim office file in the Tribunal before the next date. It appears that in spite of the said direction the appellants did not produce the said file and as such Tribunal indicated to appellants that in case the claim office file is not produced their defence will be struck of. Even then appellant did not produce the file for a long time. Hence on 16-6-1994 the Railway Claims Tribunal passed the above mentioned order for payment of Rs. 8654-70 and interest against the appellants.

5. Being aggrieved by the above mentioned order, the Union of India has filed the present appeal. In this appeal before me Shri Samant, learned Advocate for the appellant has urged 3 points. Firstly, he submitted that the learned Member, Railway Claims Tribunal was not justified in passing the order regarding striking of defence and at any rate the Tribunal ought to have given an opportunity to the appellants to cross-examine witness of the respondents and to argue the matter. As no such opportunity given the matter be remanded to the Railway Claims Tribunal with a direction that appellants be allowed to cross-examine the witness of the original plaintiff. Secondly, he canvassed before me that the order passed against South Eastern Railway is bad in law on the point of jurisdiction. Lastly, he submitted that interest awarded by the Tribunal at the rate of 18% p.a. is exorbitant. Hence on all these grounds he prayed that appeal be allowed and the order passed by the Tribunal be set aside. As against this, Shri H.N. Vakil, learned Advocate for the respondent original plaintiffs supported the judgment and order passed by the Railway Tribunal.

6. It is an admitted fact that Tribunal had directed the appellants to produce claim office file and had specifically stated that if they fail to do so, their defence will be struck off. It is also not in dispute that as per the directions the appellants did not produce the said office claim file for a long time though sufficient opportunity was given to them. There is nothing on record to show that they had given any satisfactory explanation about not producing the said file. So, under such circumstances on 16-6-1994 Tribunal decreed the plaintiffs claim.

7. Shri Samant, learned Advocate for the appellant submitted that there was no justifiable ground to pass order regarding striking of defence. Apart from this even if it is assumed that there was sufficient ground to pass such order still then according to him the Tribunal ought to have given liberty to the appellants to cross-examine the witness of the respondent and as such the matter be remanded. Naturally the question arises what is the effect of striking of the defence or in other words, what is nature of rights that are available to a defendant whose defence has been struck off.

8. In order to substantiate his proposition Shri Samant has placed reliance on a case, Modula India v. Kamakshya Singh Deo wherein Their Lordships have observed.

While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiffs case by the cross-examination of his witnesses it would be equally correct to say that the cross-examination of the plaintiff witnesses really constitutes a finishing touch which completes the plaintiffs case. It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross examination. The right of the defence to cross-examine the plaintiffs witnesses can therefore be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfil the terms of the statute.

To us it appears that the basic principles that where a plaintiff comes to the Court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the Court can only do this by looking the plaintiffs evidence and pleadings supplementary by such questions as the Court may consider necessary and to completely eliminate any type of assistance from the defendants in this task will place the Court under a great handicap in discovering the truth or otherwise of the plaintiffs statements. For after all, the Court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiffs averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the Court in pointing out defects, weakness, errors and inconsistencies of the plaintiffs case.

We therefore think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence.

9. It is very clear that in the above cited case, order with regard to the striking of defence was passed against the tenant in pursuance of the specific provision of West Bengal; Premises Tenancy Act. However, it must be noted that order with regard to striking of defence can also be passed as per the provisions of Order 11, Rule 21 and Order 39, Rule 11 of C.P.C. It would be worthwhile to see what are the relevant provisions. Order 11, Rule 21. Non-compliance with order for discovery - (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed or want of prosecution, and, if a defendant, to have his defence, if any, stuck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect, and (an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard. (2) Where an order is made under Sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.

10. If we take into consideration the fact that as per Order 11, Rule 21 of C.P.C. if plaintiff fails to comply any Order as con templated under the said provision then the suit is liable to be dismissed for want of prosecution and if defendant fails to comply then his defence can be struck off, then one may say that if the effect of non complying of the order in case of plaintiff is dismissal of the suit then for defendant also the effect should be the same. In other words, the defendant whose defence has been struck out should not be allowed to take part in the proceedings. Normally, striking out the defence must mean it is no longer open to the defendants to contest the existence of the facts giving rise to suit. So, it can be said that learned Claims Tribunal ought to have allowed the appellants to cross-examine respondent's witness, with above mentioned restrictions. So, normally under such circumstances I would have remanded the matter for allowing appellants to cross-examine respondent's witness. However, there are certain peculiar circumstances in the instant case as a result of which I am now not inclined to remand the matter.

11. It has come on record that appellant have already once submitted to the Tribunal that they do not want to cross-examine the respondent's witness and as a result of the same the evidence of both sides is closed by the Tribunal. When such is the position now the appellant cannot be permitted to cross-examine the plaintiff witness. It is true that Claims Tribunal ought to have given opportunity to appellant to advance their arguments but that was also not done. So, even if the matter is now remanded back, all that appellants can do is to advance arguments before the Tribunal. Having regard to the fact that the Tribunal's decision is dated 16-6-1994 and now the appeal is pending in this Court for last 11 years, it is not proper and desirable to remand the matter merely for giving opportunity to the appellants original defendants to advance argument before the Tribunal. Hence I am not inclined to accept the submission made by the learned Advocate for the appellant in this behalf.

12. It has to be mentioned that learned Advocate for the appellant has not at all advanced any argument on the point of shortage of goods or the compensation claimed. So, to that extent the finding of the Tribunal is not challenged before me. The learned Advocate for the appellant has argued point of jurisdiction and placed on record judgment of this High Court in (First Appeal No. 1136 of 1992)2, wherein it has been held that Claims Tribunal Bombay has no jurisdiction to pass award against General Manager, Central Railway as well as General Manager South Railway at the same time and the award can be passed only against one Railway i.e. General Manager Central Railway. From the averments in the plaint also it is very clear that cause of action in the present case had arisen at Bombay. So, the order passed by the Tribunal against General Manager, South Eastern Railway has to be set aside

13. The learned Advocate for the appellant submitted that the Tribunal has awarded interest at the rate of 18% p.a. from the date of filing of the suit and it is exorbitant. However, it is pertinent to note that admittedly there was no any agreement between the parties regarding payment of interest. Not only that but from the perusal of the record it appears that even in the letter (Exh.B) written by the respondents to the appellants they had not claimed any interest. Even in the notice which was issued under Section 80 of C.P.C. the plaintiff had not claimed any specific interest. Shri Samant learned Advocate for the appellant, relying on the above mentioned judgment of this High Court submitted that interest at the rate of 9% p.a. be granted. Having regard to the view taken by this High Court in above mentioned case and considering the rate of interest that was prevailing on fixed deposits when claim (suit), was filed and modification in the said rate from time to time, I think that it is necessary to award interest at the rate of 9% p.a. from the date of filing of the suit (application). The interest of 18% awarded by the learned Tribunal is certainly exorbitant.

14. In view of this, the appeal is partly allowed.

15. The appellants, Union of India represented by the General Manager of Central Railway are hereby directed to pay respondents Rs. 8654-70 ps. and interest on the said amount at the rate of 9% p.a. from the date of the filing of the application (suit) till the realisation of the amount.

The order passed by the Member (Technical), Railway Claims Tribunal against the South Eastern Railways is set aside.

The appellants, Union of India represented by the General Manager of Central Railway to pay costs of this appeal to respondents original plaintiffs and bear their own.