Karnataka High Court

Karnataka Power Corporation ... vs The Union Of India on 17 March, 2022

Bench: Alok Aradhe, S Vishwajith Shetty

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 17TH DAY OF MARCH 2022

                         PRESENT

        THE HON'BLE MR. JUSTICE ALOK ARADHE

                             AND

   THE HON'BLE MR.JUSTICE S. VISHWAJITH SHETTY

               M.F.A. No.809 OF 2017 (RCT)

BETWEEN:

KARNATAKA POWER CORPORATION LIMITED
SHAKTHI BHAVAN
82, RACE COURSE ROAD
BANGALORE.
                                             ... APPELLANT
(BY MR. PROMOD NAIR, SR. COUNSEL FOR
    MR. VIVEK S, ADV.,)

AND:

THE UNION OF INDIA
REPRESENTED BY ITS GENERAL MANAGER
SOUTH CENTRAL RAILWAY
SECUNDERABAD-500003.
                                       ... RESPONDENT
(BY MR. ABHINAY Y.T. ADV.)
                             ---

     THIS MFA IS FILED UNDER SECTION 23(1) OF THE
RAILWAY CLAIMS TRIBUNAL ACT 1987, AGAINST THE JUDGMENT
AND ORDER DATED 06.10.2016 PASSED IN OA III SBC 003/2016
ON THE FILE OF THE RAILWAY CLAIMS TRIBUNAL ON DIVISION
CIRCUIT BENCH AT RAILWAY CLAIMS TRIBUNAL BANGALORE
BENCH BANGALORE, REJECTING CLAIM APPLICATION AS NOT
MAINTAINABLE AND BEING BARRED BY LIMITATION.
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     THIS M.F..A. COMING ON FOR ADMISSION, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:



                         JUDGMENT

Heard on the question of admission.

This appeal under Section 23(1) of the Railway Claims

Tribunal Act, 1987 (hereinafter referred to as 'the Act' for

short) has been filed against the judgment dated 06.10.2016

passed by the Railway Claims Tribunal (hereinafter referred

to as 'the Tribunal' as short), by which application preferred

by the appellant under Section 17(2) of the Act has been

dismissed as not maintainable on the ground of the same

being barred by limitation viz., delay of 18 years i.e., 6594

days in filing the original claim application under Section 16

of the Act for refund of freight charges.

2. Facts leading to filing of this appeal briefly stated

are that according to the appellant between the period from

1991 to 1995, excess freight was charged from the appellant

by the respondent. The appellant instead of resorting to the

remedy provided under the Act, filed a writ petition before

this court. The aforesaid writ petition was dismissed on

merits by learned single judge of this court vide order dated

01.08.2001. Being aggrieved, the applicant filed an appeal

before the division bench viz., W.A.No.7314/2001, which was

dismissed by a bench of this court vide judgment dated

18.11.2002. Thereupon, the appellant filed a Special Leave

Petition before the Supreme Court the appellant sought leave

of the court to withdraw the appeal with liberty to seek

redress under Section 16 of the Act. Thereupon, the

aforesaid Special Leave Petition was dismissed as withdrawn

by the Supreme Court by an order dated 27.08.2015. After a

period of more than 1 1/2 year, the petitioner filed an

original application along with an application seeking

condonation of delay under Section 17(2) of the Act. The

aforesaid application has been dismissed by the tribunal on

the ground that no sufficient cause for condonation of delay

has been made out. In the aforesaid factual background, this

appeal has been filed.

3. Learned counsel for the appellant submitted that

the tribunal ought to have appreciated that there was

sufficient cause for condonation of delay in filing the original

application. It is also submitted that the expression 'sufficient

cause' has to be construed liberally so as to advance the

cause of justice. It is also urged that in the instant case is

not a case, where the appellant was sleeping over its rights

and therefore, the delay irrespective of the length of delay

deserves to be condoned in the facts of the case. In support

of aforesaid submissions reliance has been placed on

decisions of the Supreme Court in N BALAKRISHNAN

VERSUS M.KRISHNAMURTHY', (1998) 7 SCC 123.

4. We have considered the submissions made by

learned counsel for the appellant and have perused the

record. Admittedly the excess freight was recovered from the

appellant between the period from 1991 to 1995. The

appellant had a statutory remedy of filing an original

application before the tribunal under Section 16 of the Act.

However, instead of resorting to the aforesaid remedy, the

petitioner approached this court by filing the writ petition,

which was dismissed on merits by learned single judge of this

court by an order dated 01.08.2001. Admittedly, the

aforesaid order was upheld by a division bench of this court

vide judgement dated 18.11.2002 and the writ appeal

preferred by the appellant was dismissed. The appellant

thereupon filed a Special Leave Petition. The relevant extract

of the order dated 27.08.2014 passed by the Supreme Court

reads as under:

After arguing the matter at considerable length, learned counsel for the appellant- Corporation seeks leave to withdraw this appeal reserving liberty for the appellant- Corporation to seek redress under Section 16 of the Railway Claims tribunal Act, 1987 before the Railway Claims Tribunal.

           This     appeal     is   accordingly    dismissed   as
     withdrawn.

The appellant - Corporation shall, subject to all just exceptions including limitation, be free to seek redress before the tribunal, in accordance with law. We make it clear that we express no opinion about the maintainability of any such claim petition or the defences that may be open tot eh Railways if the same is eventually filed. We make it further clear that in case the claim petition is eventually filed before the tribunal, the tribunal shall, while deciding the case in accordance with law, remain uninfluenced by any observation made on the merits of the case

or any finding recorded by the High Court in the impugned judgment.

5. Thus, it is evident that the Supreme Court has

kept the issue of limitation open. However, it is pertinent to

note that the explanation offered by the appellant while

explaining the delay in paragraph 4 and 5 of the affidavit

filed on behalf of the appellant in support of condonation of

delay reads as under:

In the present case, any delay in filing the application is attributable to legitimate efforts of the applicant in approaching the South Central Railway to seek an amicable resolution of the dispute. The applicant did not wish to burden this Hon'ble Tribunal by filing a claim in respect of each of the numerous instances where the South Central Railway adopted unujustified practices. The applicant instead sought to achieve a more long lasting solution in respect of the then continuing unjustified actions of the South Central Railway - as borne out by the numerous correspondences exchanged between the parties during this time.

The delay is also attributable to the applicant's bonafide pursuit of proceedings before the Hon'ble High Court and Supreme Court in respect of the

same subject matter. The applicant's efforts to seek a more permanent relief in respect of its then continuing claims must be recognized and given due weight by this Hon'ble Tribunal in exercising its discretion.

6. From perusal of the aforesaid explanation, it is

evident that the aforesaid explanation is not satisfactory. It is

relevant to note that the special leave petition was withdrawn

by the appellant on 27.08.2014, whereas, the original

application under Section 16 of the Act along with an

application for condonation of delay was filed before the

tribunal after a period of one year and 10 months. No

explanation has been offered by the appellant for filing the

original application before the tribunal after an inordinate

delay of 18 years except by contending that the writ petition

and the writ appeal was pending before this court as stated

supra. Therefore, the said petition and writ appeals were