Bombay High Court
M.S.E.B., Bhusawal vs The Union Of India on 8 December, 2009
Bench: A.B. Chaudhari
fa400.91.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.400/1991
APPELLANT:- The Maharashtra State Electricity Board,
through the Executive Engineer (Stores)
Major Stores 'A', M.S.E.B. Deepnagar,
Bhusawal, Distt. Jalgaon.
...V E R S U S...
RESPONDENT:- The Union of India,
Owning and Representing
the Central Railway, through the
General Manager, Central Railway,
V.T. Bombay.
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[Shri D.K. Dubey, Adv. for appellant]
[Shri P.S. Lambat, Adv. for respondent]
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CORAM:- A.B. CHAUDHARI, J.
DATED :- 08.12.2009
ORAL JUDGMENT
1. Being aggrieved by the judgment and order dated
23.8.1990 passed by the Railway Claims Tribunal, Nagpur Bench in
Claim Case No.56/OA-I/RCT/NGP/90, rejecting the claim application
on the ground that delay in filing the same was not satisfactorily
explained and consequently, the claim application was dismissed,
the present appeal was filed by the appellant in this Court.
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2. Following are the facts which are not in dispute.
The goods were booked by the appellant on 11.3.1986
and the claim under Section 78-B of the Indian Railways Act, 1890
was lodged by the appellant on 21.6.1986 in response to which
the respondent - Railways issued letter dated 26.3.1987 indicating
to the appellant that the claim was settled at Rs.70,000/- but the
said amount was not being disbursed to the appellant because
there was debit in its account. On 20.2.1990 the appellant issued
notice under Section 80 of the Code of Civil Procedure which was
received by Railways on 26.2.1990. The claim came to be filed on
23.4.1990 i.e. almost one month after expiry of the statutory
period of two months. The Railway Claims Tribunal was
constituted by the Government of India on 8.11.1989 about which
gazette notification was made on 5.10.1989 and the Tribunal
started functioning at Nagpur from 8.11.1989.
3. Learned Counsel for the appellant argued that letter
dated 26.3.1987 that was issued by the Railways in response to
the claim application under Section 78-B of the Indian Railways Act
will have to be treated as acknowledgment under Section 18 of
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the Limitation Act, 1963 and therefore, the limitation stopped
running from that day. He then argued that under Section 15 (2)
of the Limitation Act there is provision to exclude statutory period
of two months in case where notice under Section 80 of the Code
of Civil Procedure is given and therefore, the limitation stood
extended up to 23.3.1990. According to him even though the
claim was filed on 23.4.1990 i.e. almost a month after total period
of three months unlike Civil Court, the Tribunal has been given
power under Section 17 (2) of the Railways Act, 1989 and
therefore, the Tribunal has a power to condone delay even beyond
period of three years if there is sufficient cause. According to
learned Counsel for the appellant sufficient cause was clearly set
out in various paragraphs of the application for condonation of
delay that was made by the appellant along with claim application
and these averments were not at all denied by filing any reply and
therefore, the said averments will have to be taken as true. The
Tribunal erred in not considering this aspect in correct
prospective.
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4. Per contra, learned Counsel for the respondent -
Railways vehemently opposed the appeal and argued that as a
matter of fact limitation started running from 11.3.1986 and the
period of three years expired on 10.3.1989 the letter regarding
settlement of claim dated 26.3.1987 would not stop running of
limitation as the appellant which is the public body ought to have
taken steps to file the proceedings during the period of limitation
rather than making correspondence here and there as stated in
paragraph Nos.3 and 4 of the application for condonation of delay.
According to him, the Tribunal was right in holding that the
appellant was required to be vigilant in pressing its claim in the
absence of which no sufficient cause could be said to have been
made out by the appellant. He then argued that assuming that
letter dated 26.3.1987 is in the nature of acknowledgment under
Section 18 of the Limitation Act; even then the claim was filed on
23.4.1990 and that is also beyond period of three years and the
explanation beyond three years is not satisfactory and therefore,
the Tribunal was right in dismissing the application for
condonation of delay. He then argued that the Tribunal having
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started functioning at Nagpur since 8.11.1989 it cannot be said
that the appellant did not know about constitution of Railway
Claims Tribunal at Nagpur since according to him ignorance of law
is no excuse.
5. I have gone through the impugned judgment and award
and the findings recorded by the Tribunal in the matter. At the
outset, it will have to be noted that the application for condonation
of delay is in several paragraphs and all relevant details for
claiming condonation of delay have been mentioned in that
application which is duly signed and verified by the concerned
organization of the appellant. Surprisingly enough respondent -
Railways did not bother to file any reply and deny the averments
or rebut the averments made in the said application. This clearly
means that the Tribunal was required to take those averments as
true at their face value in the absence of any denial or rebuttal but
reading of the order of the Tribunal shows nothing of this sort.
There is, therefore, failure on the part of the Tribunal in dealing
with the case on facts as stated by me. Now the averments in
paragraph Nos.3 and 4 of this application clearly show what steps
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were taken by appellant - organization. It is not necessary for me
to repeat those averments here. The appellant being a public
sector undertaking, it is required to consult its standing Counsel so
also the higher officials. It does not act or is not expected to act
like a private person who himself alone decides. The averments
made in the application in paragraph Nos.3 and 4 clearly show
that appellant having come to know about constitution of Tribunal
at Nagpur it was decided to refer the matter to Bombay office and
consequently, the legal department thereof, which opined that
claim should not be filed before the Civil Court but it will have to
be filed before the Tribunal. I fail to understand how the Tribunal
calls this particular action on the part of appellant - M.S.E.B. as not
satisfactory or sufficient cause for condoning the delay of about
one month. The delay of one month is not so much that the
Tribunal should have punished the appellant by throwing out the
claim application in the manner done particularly because these
averments in paragraph Nos.3 and 4 of the application were not
even denied. In my opinion, therefore, this period of one month
after three years was required to be condoned by exercising
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power under Section 17 (2) of the Railways Act, 1989 as sufficient
cause was made out. There is no need to deal with the
submissions made by learned Counsel for the respondent on the
point of Section 18 of the Limitation Act and so on and so forth as
that will burden this judgment. For the above reasons, therefore, I
make the following order.
ORDER
(i) First Appeal is allowed.
(ii) The impugned judgment and order dated
23.8.1990 made by the Railway Claims Tribunal, Nagpur Bench in
Claim Case NO.56/OA-I/RCT/NGP/90 is set aside.
(iii) The proceedings are remitted to the Railways
Claims Tribunal, Nagpur Bench for deciding the claim made by the
appellant afresh without being influenced by any of the
observations made by the Railway Claims Tribunal or by this Court
on its own merits. The claim application be decided within a
period of four months from the date of receipt of writ of this Court.
No order as to costs.
JUDGE
ssw
