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2007 DIGILAW 2161 (ALL)

Mukesh Agarwal v. Railway Claims Tribunal

2007-08-17

PRAKASH KRISHNA

body2007
JUDGMENT : PRAKASH KRISHNA, J. 1. F.A.F.O. No. 75 of 2002 is u/s 23 of Railway Claims Tribunal Act, 1987 and is directed against the order dated 19.4.1999, passed by Railway Claims Tribunal, Ghaziabad Bench, Ghaziabad in Application No. TA/I/141/97/BSC Lucknow Bench's No. OC-93-01187. The Railway Claims Tribunal has rejected the claim preferred by the Appellants herein. 2. It has been stated at the Bar that the controversy involved in both the appeals are identical, therefore, for the sake of convenience, only the facts of F.A.F.O. No. 75 of 2002 are hereby noted. 3. Mukesh Agarwal and M/s. New Paramount Potteries, the Appellants herein, filed the claim petition on the allegations that a consignment of Coal Grade-I was booked vide Railway Receipt No. 013906 dated 27.8.1992 from Amrit Nagar to Khurja City. The consignee was M/s. New Paramount Potteries. The consignment was to be delivered to M/s. New Paramount Potteries through M/s. Mahavir Coal Trading Company. The consignment did not reach the destination, therefore, after serving a notice u/s 106 of the Railways Act, the aforestated petition was filed for grant of compensation of Rs. 47,485.81. The said claim petition was contested on number of pleas including that the claim petition is not maintainable as M/s. Mahavir Coal Trading Company is an unregistered firm, besides other pleas raised in the written statement. On the pleadings of the parties, following four issues were framed: 1. Whether the applicant has title to prefer the claim in question ? 2. Whether the claim application is not maintainable as claimed by the Respondent ? 3. Whether legal and valid notice u/s 106 of the Railways Act, 1989, was served on the Respondent ? 4. To what relief, if any, is the applicant entitled? 4. The Tribunal under issue Nos. 1 and 2 held that the application in the present form wherein Mukesh Agrawal was applicant No. 1 in his individual capacity duly joined with M/s. New Paramount Potteries is not maintainable. Under issue No. 3 it was found that notice on behalf of the applicant No. 1 was served within the statutory limit. In view of the findings recorded under issue Nos. 1 and 2, the claim petition was dismissed by the order under appeal. 5. Under issue No. 3 it was found that notice on behalf of the applicant No. 1 was served within the statutory limit. In view of the findings recorded under issue Nos. 1 and 2, the claim petition was dismissed by the order under appeal. 5. Before proceeding further, it may be noted that initially the claim petition was filed by Mukesh Agrawal but at the subsequent stage M/s. New Paramount Potteries was impleaded as applicant No. 2. 6. Challenging the findings recorded under issue Nos. 1 and 2, the learned Counsel for the Appellants submits that the original railway receipt was intentionally withheld by the Railway Administration and as such, an adverse inference should be drawn against the Railway. The contention is that original railway receipt was handed over to Mukesh Agrawal authorising him to take delivery of consignment after its arrival. It was further submitted that there is voluminous evidence on record to show that Mukesh Agrawal was authorised to file the present petition and as such, the Tribunal was not right in holding that M/s. Mahavir Coal Trading Company only have right to prefer the claim petition in question. 7. Sri Vinod Swaroop, learned senior advocate, on the other hand, supports the order of the Railway Claims Tribunal and submits that the claim petition is not maintainable for the reason that M/s. New Paramount Potteries was impleaded subsequently after expiry of period of limitation for filing the claim petition and as such, the claim petition at the instance of M/s. New Paramount Potteries is liable to be rejected being barred by time. 8. Considered respective submissions of the learned Counsel for the parties and perused the record. 9. It is not in dispute that M/s. New Paramount Potteries is consignee. It is also not in dispute that M/s. New Paramount Potteries is a proprietorship concern. M/s. Mahavir Coal Trading Co. is a partnership firm but the said firm is unregistered one. The case of the claimants is that the disputed railway receipt was endorsed in favour of Mukesh Agrawal in his individual capacity as well as partner of M/s. Mahavir Coal Trading Co. to receive the disputed consignment. It was submitted that evidence by way of affidavit etc. is there to prove the endorsement in favour of Mukesh Agrawal. 10. The original Railway receipt is in possession of Railway Administration as it was collected by an Inspector. to receive the disputed consignment. It was submitted that evidence by way of affidavit etc. is there to prove the endorsement in favour of Mukesh Agrawal. 10. The original Railway receipt is in possession of Railway Administration as it was collected by an Inspector. The Tribunal directed production of the original Railway receipt but the Respondents have failed to bring the same on record. In this view of the matter, the Tribunal was justified in drawing an adverse inference against the Railway for non-production of the Railway receipt. It is not in dispute that original Railway Receipt was taken away by an Inspector of the Railway. The Tribunal was of the view that a deliberate attempt was made to shift the title from M/s. Mahavir Coal Trading Co. to Mukesh Agrawal in his individual capacity. 11. Looking to the pleadings of the parties, the said finding of the Tribunal cannot be said to be incorrect. 12. Perused copy of the application filed u/s 16 of the Railway Claims Tribunal Act. There are only seven paragraphs under the heading 'Facts of the case'. In para 4 thereof, only this much is stated that Mukesh Agrawal is a partner of M/s. Mahavir Coal Trading Co. and thus, he is legally entitled to receive the payment of the claim in this case. No where in the said application it has been stated that the endorsement was made in favour of Mukesh Agrawal in his individual capacity. A reading of the said application clearly shows whatever title Mukesh Agarwal had in respect to the disputed consignment has been pleaded in para 4 thereof. The learned Counsel for the Appellants could not refer any other paragraph to show the pleadings with regard to the title of Mukesh Agrawal. Paragraph 4 states only this much that Mukesh Agrawal is a partner of M/s. Mahavir Coal Trading Co. It is also not disputed, as indicated above that M/s. Mahavir Coal Trading Co. is an unregistered partnership firm. In view of Section 69(2) of the Partnership Act, such a suit or claim for recovery of amount by and on behalf of an unregistered firm is clearly barred. In this view of the matter, the Tribunal was fully justified in recording its finding under Issue Nos. 1 and 2 that the application in the present form on behalf of Mukesh Agarwal is not maintainable. In this view of the matter, the Tribunal was fully justified in recording its finding under Issue Nos. 1 and 2 that the application in the present form on behalf of Mukesh Agarwal is not maintainable. But that is not the end of the matter. 13. The claim petition was filed on behalf of Mukesh Agrawal as well as by M/s. New Paramount Potteries. Sri Vinod Swaroop, learned senior counsel for the Respondents states that M/s. New Paramount Potteries is a proprietorship firm and was consignee of the goods in question. The Railway receipt was in the name of M/s. New Paramount Potteries. The order under appeal does not give any reason or finding as to why the claim petition was not maintainable on behalf of the newly added applicant No. 2 namely M/s. New Paramount Potteries. This aspect of the matter was overlooked by the Railway Claims Tribunal and, therefore, it needs decision by it. 14. At this juncture, Sri Vinod Swaroop, learned senior counsel pointed out that initially M/s. New Paramount Potteries was not one of the applicants and it was added subsequently, according to him after the expiry of period of limitation. What would be the effect of subsequent impleadment of M/s. New Paramount Potteries is left open for the decision by the Tribunal, if so raised by the Respondents. Copy of the order permitting the impleadment of M/s. New Paramount Potteries has not been included in the paper book and in the absence of relevant material, it is not appropriate to adjudicate upon by this Court. 15. It was also argued on behalf of the Respondents that no notice was given by M/s. New Paramount Potteries or Mukesh Agrawal. On perusal of written statement filed by the Respondents, it appears that no such plea was pleaded therein or pressed before the Tribunal. Pleadings, if any, in this regard can be found in para 20 of the written statement wherein only this much has been pleaded that notice u/s 106 of the Indian Railways Act is illegal and not maintainable in law. The said para is wholly vague. It cannot be said that it was pleaded by the Respondents that the claim petition is not maintainable on behalf of the applicants in absence of notice to be given by them. The said para is wholly vague. It cannot be said that it was pleaded by the Respondents that the claim petition is not maintainable on behalf of the applicants in absence of notice to be given by them. In this facts and circumstances of the case, plea of requisite notice as required u/s 106 of the Railways Act was given up. 16. Upshot of the above discussions is that in the absence of any specific plea regarding lack of notice on behalf of the applicants, it shall be presumed that the Respondents have waived the notice required u/s 106 of the Railways Act. 17. The question of notice thus, shall not be gone into by the Tribunal after remand and the said issue stands concluded in favour of the Appellant No. 2. 18. Whether notice was served by Mukesh Agrawal or not, does not survive in view of the above finding that Mukesh Agrawal was not entitled to file the claim petition in his individual capacity. 19. It was also argued that since M/s. New Paramount Potteries is a proprietorship concern, the claim petition should have been filed in the name of the proprietor. The said objection is technical in nature and at the most, it amounts misdescription of the party. No prejudice has been caused to the Respondents by the alleged misdescription and as such, the said argument is rejected. However, it shall be open to M/s. New Paramount Potteries to file an appropriate application for correction of its description before the Tribunal and if such an application is filed, the Tribunal shall pass appropriate orders thereon, permitting the correction. 20. In view of the above discussion, it is expedient to remand the matter to the Railway Claims Tribunal for fresh decision in the light of the observations made above. The Railway Claims Tribunal shall decide as to whether the claim petition is maintainable at the instance of M/s. New Paramount Potteries. It shall also consider the plea, if so raised, that the claim petition is barred by time as M/s. New Paramount Potteries was impleaded as applicant No. 2 after expiry of period of limitation for filing the claim petition. If the aforesaid two issues are decided in favour of the claimants/Plaintiffs, then the Tribunal shall consider the question of grant of relief, if any, to which M/s. New Paramount Potteries is found to be entitled. 21. If the aforesaid two issues are decided in favour of the claimants/Plaintiffs, then the Tribunal shall consider the question of grant of relief, if any, to which M/s. New Paramount Potteries is found to be entitled. 21. Both the appeals are allowed in part. The judgment and orders in both the Claim petition Nos. TA/I/141/97/BSC Lucknow Bench's No. OC-93-01187 and TA/I/668/ 97/BSC Lucknow Bench's No.OC-93-01023 are hereby set aside and the matter is restored back to the file of the concerned Claims Tribunal for afresh decision in the light of the observations made above. 22. No order as to costs.