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2005 DIGILAW 750 (MP)

Indian Potash Ltd. v. Union of India

2005-07-25

A.K.MISHRA, D.C.MAHESHWARI

body2005
JUDGMENT Mishra, J. -- This appeal has been preferred as against order dated 5.2.1996 passed by the Railway Claims Tribunal, Bhopal in Case No. OA-15/94. Appellant had filed the original application in the Railway Claims Tribunal, Bhopal alleging that it had booked 63 wagons of Fertilizers from Bombay to Indore vide RRS No. 621875, 621876 and 621871. Out of these 63 wagons, 3 wagons did not reach the destination and were not delivered. Shortage certificate was issued of three wagons by respondent/ General Manager, Western Railway, Bombay, Railway administration failed to pay the said amount of the losses of three wagons of fertilizers of the appellant through authorized representative preferring the claim on 12.1.1993, 16.1.1993, 9.3.1993, 12.3.1993 and 15.3.1993. Railway Claims Tribunal has dismissed the application as it was not established that any notice was served under section 106 of Railways Act. It was held that notice dated 6.11.1992 which was issued by Jyoti Transport was not relevant as it was not pleaded that Jyoti Transport was agent of the claimant. It was further held that postal receipt regarding sending of notice and acknowledgement regarding service of notice has not been filed by the claimant. We have heard learned counsel for parties and gone through the record of Claims Tribunal. We find that in the claims Tribunal, in the reply, the plea was taken by the railways that applicant is called upon to prove that notice was served as required under section 106 of the Railways Act. Following statement was made in para 4 of the reply. "4. With reference to para 7 of the Application, it is submitted that, alleged notice being mandatory, Applicant is called upon to prove that, Claim Notice under section 106 of the Railways Act, 1989 has been served on the Railway Administration as required under the said Act." An affidavit was filed on behalf of applicant/appellant of Shri R. Parthasarthy, Area Manager, Indian Potash Ltd., Bhopal in which it was mentioned that applicant's agent had preferred claim as against railways on 16.1.1993 and on 29.3.1993 and on 31.7.1993 and 6.9.1993. These letters were filed along with affidavit as Annexures A/5 to A/8. Reading of these letters A/5 to A/8 makes it clear that unequivocal demand was made from Railways to make payment of claim of Rs. 10,57,320/-. These letters were filed along with affidavit as Annexures A/5 to A/8. Reading of these letters A/5 to A/8 makes it clear that unequivocal demand was made from Railways to make payment of claim of Rs. 10,57,320/-. Notice (NS) was given on 16.1.1993, along with it there is a letter dated 16.1.1993 of authority in favour of Jyoti Transport. Another letter (A/6) dated 29.3.1993 was served by Jyoti Transport which is on record in which it was mentioned that it was dispatched by registered post acknowledgment due. There is yet another letter/demand notice (A/7) dated 31.7.1993, A/8 dated 6.9.1993. No counter affidavit was filed on behalf of Railways. In the absence, of filing counter affidavit, it is clear that statement made in the affidavit was not controverted. Apart from that, in the reply para 4 quoted above, it was not specifically pleaded that no demand was raised. Only -it was pleaded that applicant to prove the service of notice under section 106 of Railways Act. When the notices were placed on record, it was for the Railways to file counter-affidavit to show that demand was not raised. It was clearly mentioned in the affidavit that Jyoti Transport was the agent of the claimant/appellant, thus, reason employed that service of notice by Jyoti Transport is of no utility is perverse. In our opinion, the Claims Tribunal has committed grave error of law while dismissing the claim petition on the ground that notice was not served, notice was issued, it is presumed to be served and in the absence of any counter-affidavit, we find that finding of Railway Claims Tribunal is unsustainable, cannot be allowed to stand. Resultantly, the order passed is hereby set aside. Claims Tribunal is directed to adjudicate the claim on merits in accordance with law as far as possible within six months. No costs.