M/S. Delhi Bhatta Welfare ... vs Union Of India
2010 Latest Caselaw 1674 Del

                                                      UNREPORTABLE


*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                              FAO No.386/1996


                                  Date of Decision: March 25, 2010


       M/S. DELHI BHATTA WELFARE ASSOCIATION
                                                      ..... Appellant
                          Through Mr. M.L.Bhargava, Advocate


                     versus


       UNION OF INDIA                        ..... Respondent
                     Through Ms. Gyan Mitra, Advocate


       CORAM:
       HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? No
2.     To be referred to the reporter or not? No
3.     Whether the judgment should be reported in the „Digest‟? No

REKHA SHARMA, J. (ORAL)

The appellant booked coal consignments from Singrauli to

Tughlakabad under Invoices No.3 to 19 (RR Nos.011437 to 011453)

dated March 05, 1982. As per the relevant rules, the consignments

had to be booked by the Railways via the shortest route at the

cheapest rate. The appellant had booked the consignments via

Chopan-Chunar which was the shortest route and the freight charges

were also invoiced accordingly by the forwarding station. However,

on arrival of the consignments at the destination station, an excess

freight of Rs.52,153/- was demanded from the appellant by the

Railways on the ground that the consignment was booked and carried

via a longer route. The appellant did pay the extra freight of

Rs.52,153/-, but under protest. The payment was made in

March, 1982.

It is not disputed that after making the payment, the appellant

was engaged in correspondence with the respondent resulting in a

letter dated January 20, 1986 from the latter informing the former

that the amount of Rs.29,050/- had been provisionally sanctioned and

that the same would be remitted to it subject to the appellant

furnishing the Power of Attorney from the party/person who paid

charges authorizing it to receive payments. In response to the letter

dated January 20, 1986, the appellant vide letter dated

January 24, 1986 submitted 16 Special Power of Attorneys from the

parties/persons who paid the charges, authorizing it to receive the

payments on their behalf. Thereafter, the respondent issued another

letter dated January 30, 1986 informing the appellant that the sum of

Rs.29,050/- had been provisionally passed as refundable and the same

would be remitted to it by the Additional FA & CAO, TA Branch after

necessary verification by that office. The payment of Rs.29,050/- was

received by the appellant on February 27, 1986 but under protest, as

according to the appellant, the respondent was also liable to pay the

balance amount of Rs.23,103/-. In view of the non-payment of full

amount, a suit for the recovery of balance sum of Rs.23,103/- was filed

against the respondent, i.e. the Union of India through General

Manager, Northern Railways. The suit was filed on October 20, 1987

initially in the Court of the Senior Sub Judge. It was later transferred

to the Railway Claims Tribunal (hereinafter referred to as the

Tribunal).

It is the case of the appellant that the cause of action to file the

suit arose for the first time on February 27, 1986 when instead of

making the full payment of Rs.52,153/-, only part payment was made.

However, the Tribunal vide order dated August 14, 1996 has held the

suit to be barred by the law of limitation. Feeling aggrieved by the

order of the Tribunal, the present appeal was preferred by the

appellant.

The Tribunal has held that it is Article 24 of the Limitation

Act, 1963 which is applicable to the facts of the case and that the suit

having not been filed within three years in terms of the said Article,

the same was barred by time.

Before I proceed further, let me reproduce Article 24 of the

Limitation Act, 1963. It runs as under:-

Description of suit Period of limitation Time from which period begins to run

For money payable Three years When the money is by the defendant to received.

the plaintiff for money received by the defendant, for the plaintiff‟s use

The learned counsel for the appellant has assailed the order of

the Tribunal on the ground that it is not Article 24 of the Limitation

Act, 1963 which is attracted to the facts of the present case, but

Article 113 of the Act. According to the counsel, the facts of the

present case are such that no other Article of Limitation Act fits the

bill except Article 113 and that what is to be seen is whether the suit

is within limitation in terms of the said Article. Insofar as Article 113

is concerned, it provides that, "in a suit for which no period of

limitation is provided elsewhere in the Schedule, the period of

limitation will be three years from the date when the right to sue

accrues."

In view of the aforesaid, the question that arises for

consideration is whether it is Article 24 or Article 113 of the

Limitation Act which is applicable to the facts of the present case.

What is of significance is that after the sum of Rs.52,153/- was

paid by the appellant to the respondent, the parties remained in

correspondence with each other and what is further of significance is

that it was for the first time on January 20, 1986 that the appellant

was informed by the respondent that out of the sum of Rs.52,153/-,

only a sum of Rs.29,050/- had been provisionally sanctioned and the

same would be remitted to it subject to the appellant furnishing

Power of Attorney from the party/person who paid charges

authorizing it to receive payments. In view of this letter, there was no

occasion for the appellant to have filed the suit for the recovery of the

balance amount from any date prior to January 20, 1986. It was only

when part payment was made by the respondent to the appellant as

against the sum of Rs.52,153/- that the appellant was forced to take

recourse to court of law for the recovery of the balance amount by

filing a suit in the Court of the Senior Sub Judge on October 20, 1987

which was well within three years of letter dated January 20, 1986. It

cannot, in the circumstances, be said to be barred by limitation. The

finding of the Tribunal that it is Article 24 of the Limitation Act which

was applicable is not warranted in the facts and circumstances of the

case.

For what has been noticed above, I set-aside the order of the

Railway Claims Tribunal and hold the appellant entitled to the sum of

Rs.23,103/- along with interest @ 6% per annum from the date of the

filing of the suit till realization. As the claim pertains to the

year 1982, the Railway is directed to make the payment within five

months from today, failing which the amount shall carry interest

@ 9% instead of 6%.

REKHA SHARMA, J.

MARCH 25, 2010 ka