Aspam Petronergy vs Ggm Commercial Container ...
2015 Latest Caselaw 8668 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 20th November, 2015

+                         W.P.(C) NO. 6726/2010
       ASPAM PETRONERGY                                ..... Petitioner
                   Through:            Mr. Naveen Malhotra, Adv.

                                   Versus

    GGM COMMERCIAL CONTAINER
    CORPORATION INDIA LIMITED AND ANR ..... Respondents

Through: Mr. Abhas Kumar, Adv CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petition seeks mandamus to the respondent Container Corporation

of India Ltd. (CONCOR) to refund the "hazardous charges and penalty

charged illegally" from the petitioner. Notice of the petition was issued and

counter affidavits have been filed. No rejoinder thereto has been filed by the

petitioner. The counsels have been heard.

2. The counsel for the petitioner has argued that the petitioner had

imported mixed Hybrid Carbon Oil and which arrived at Mumbai and the

respondent CONCOR was to transport the same from Mumbai to Delhi. It is

further stated that the respondent CONCOR however in its bill dated 15 th

December, 2009 raised on the petitioner, besides freight, also claimed a sum

of approximately Rs.1,41,150/- towards Handling Charges by treating the

goods as hazardous as well as Hazardous Penalty Charges and which the

respondent CONCOR was not entitled to charge and of which the petitioner

by this petition seeks refund.

3. I have at the outset enquired from the petitioner whether the

petitioner, before paying the aforesaid amount had protested thereagainst

and / or made the payment without prejudice, expressing urgency and

reserving the right to claim refund of the same.

4. The counsel for the petitioner has fairly stated that no protest was

made at any time before payment and the claim for refund was made for the

first time after the payment had been received.

5. I am of the view that the petition is liable to be dismissed on this

ground alone. The petitioner, if was disputing the demand / bill raised by

the respondent CONCOR including towards Handling Charges treating the

goods as hazardous and / or Hazardous Penalty charges imposed by the

petitioner, ought to have, even if the goods were at that time required to be

immediately transported, informed the respondent CONCOR of the

petitioner disputing the said amounts and / or of the petitioner reserving the

right to seek refund of the said amount and without the same it cannot be

permitted.

6. In fact, the Courts have held in the context of insurance claims arising

under the Consumer Protection Act, 1986 that if a complainant / claimant

satisfies the consumer forum that discharge vouchers were obtained by

fraud, coercion, undue influence etc., they should be ignored, but if they

were found to be voluntary, the claimant will be bound by it, resulting in the

rejection of the complaint (United India Insurance Co. Ltd. Vs. Ajmer

Singh Cotton & General Mills 1999 (6) SCC 400, National Insurance Co.

Ltd. Vs. Nipha Exports (P) Ltd. 2006 (8) SCC 156, National Insurance Co.

Ltd. Vs. Sehtia Shoes 2008 (5) SCC 400 and Central Inland Water

Transport Corporation Ltd. Vs. Brojo Nath Ganguly 1986 (3) SCC 156).

Applying the said principle, the Supreme Court in National Insurance

Company Ltd. Vs. M/s Boghara Ployfab Pvt. Ltd. 2009 (1) SCC 267 held

that, the mere production of a full and final discharge voucher cannot be a

ground for declining the reference to arbitration as it has to be determined by

adducing evidence whether the petitioner / claimant has furnished the same

voluntarily or otherwise.

7. Rather I find that it is the case of the respondent CONCOR in their

counter affidavits that the petitioner had mis-declared the goods and thus

willingly paid the penalty charges, to avoid any further action against the

petitioner. The respondent in this regard has also relied upon plethora of

other material to show that mixed Hydro Carbon Oil more than 70 degrees

centigrade, as the subject goods were, has been declared to be hazardous for

transportation.

8. The claim thus, entails disputed questions of facts and is incapable of

adjudication in writ jurisdiction.

9. There is thus no merit in the petition.

Dismissed.

No costs.

RAJIV SAHAI ENDLAW, J NOVEMBER 20, 2015 „gsr‟..