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Gauhati High Court · body

2008 DIGILAW 404 (GAU)

Union of India v. Jain Enterprises

2008-06-02

BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. These appeals under Section 23 of the Railway Claims Tribunal Act, 1987 (in short, 1987 Act) by the Union of India represented by the General Manager, N.F. Railways, are directed against the judgments and orders passed by the learned Member, Railway Claims Tribunal, Guwahati Bench, Guwahati directing the railways authority to pay compensation with interest for the loss sustained by the Respondents due to short delivery of the consignment carried by the Railways. The appeals having arisen out of a common question of law, are taken up together for hearing and disposal, as agreed to by the learned Counsel for the parties. 2. The Respondents herein filed applications before the learned Tribunal under Section 16 of the 1987 Act claiming compensation for short delivery of commodities carried by the railways under different invoices and railway receipts under railway risk rates, contending negligence and misconduct on the part of the railways, claims for which, according to the Respondents, were not settled by the railway administration, in spite of service of notices issued under Section 106 of the Railways Act, 1989 (in short the 1989 Act). The railway administration contested the proceedings, amongst Ors., on the ground that after receipt of the notices under Section 106 of the Act, it has verified the claims and having ascertained the amount to which the Respondents are entitled to, paid the same by cheque with the condition that in case offer is not acceptable, the cheques should be returned and the retention and encashment of the cheques would be treated as acceptance of the amounts under the cheques as the full and final satisfaction of their claims. The stand of the railway before the learned Tribunal was that since cheques were retained and encashed by the Respondents, it amounts to acceptance of the condition by conduct and hence the Respondents cannot claim any further amount, even in cases where before encashment the Respondents protested and intimated the railway administration about such protest. 3. The learned Tribunal, relying on the decision of the Apex Court in Bhagawati Prasad Pawan Kumar v. Union of India (2006) 5 SCC 311 , directed payment of compensation with interest to the Respondents without, however, recording any finding as to whether the action of the Respondents in retaining and encashing the cheques amounts to acceptance of the condition, attached to the offer, by conduct. 4. 4. I have heard the learned Counsel for the Appellants as well as the learned Counsel for the Respondents. 5. The learned Counsel for the Appellants referring to the conditions imposed by the letters by which the cheques were sent to the Respondents towards full and final satisfaction of the claims has submitted that since the Respondents were specifically informed by the said communications that in case the cheques are retained and encashed by them, the same would be treated as acceptance of the amounts towards full and final satisfaction of the claims, they cannot claim any further amount as the cheques have been retained and encashed by the Respondents. It has further been submitted by the learned Counsel that the Respondents, in the cases where cheques were received after initiation of the proceedings before the learned Tribunal, having not obtained any permission from the learned Tribunal prior to encashment of the cheques, they by conduct have accepted the conditions under which the cheques were issued by the railway administration and therefore cannot claim any further amount after the cheques were encashed. Referring to the protest letters wherever issued and were filed before the learned Tribunal by the Respondents, it has been submitted that the cheques having been issued with certain conditions the respondents as soon as encashed the cheque, by conduct have accepted such condition. According to the learned Counsel if the Respondents were not satisfied with the amount offered to it, the cheques ought to have been returned to the railway. The same having not been done, according to the learned Counsel, the claim petitions filed by the Respondents are not maintainable. Referring to the provisions of Section 8 of the Indian Contract Act, it is submitted that since the Respondents encashed the cheques, it amounts to acceptance of the proposal of the railway administration that such payment is in full and final satisfaction of the claim of the Respondents. The learned Counsel further submits that even if any protest is made by the Respondents before encashment of the cheques, such protests would not change the legal implications of such encashment. 6. The learned Counsel in support of his contention has placed reliance on a Division Bench judgment of this Court in Bhagawati Prasad Pawan Kumar v. Union of India 2000 (3) GLT 66. 7. 6. The learned Counsel in support of his contention has placed reliance on a Division Bench judgment of this Court in Bhagawati Prasad Pawan Kumar v. Union of India 2000 (3) GLT 66. 7. The learned Counsel for the Respondents, on the other hand, referring to the various protest letters filed before the learned Tribunal has submitted that it is evident from the said documents that the Respondents retained the cheques without encashment in terms of the letters issued protesting the conditional offer made vide cheques and informed the railway that those cannot he treated as full and final satisfaction of their claims and they would retain the cheque for certain days and encash the same thereafter if the Respondents are not informed about their counter offer and in that case the said amount would be treated as the part payment against their claims. According to the learned Counsel, as the railway did not communicate anything to the Respondents in spite of such protest letters, the Respondents encashed the cheques and, therefore, it is evident that it was not the intention of the Respondents to accept the amounts towards the full and final satisfaction of their claims. Hence, according to the learned Counsel, in view of the protest letters issued by the Respondents, before encashment of the cheques, it cannot be said that the Respondents have accepted the conditions stipulated while issuing the cheques and the encashment of such cheques is acceptance of the proposal of the railways within the meaning of Section 8 of the Indian Contract Act. According to the learned Counsel, in the cases where such cheques were received and encashed by the Respondents during pendency of the proceedings before the learned Tribunal, the Respondents having pursued with the proceeding, after intimating the learned Tribunal about making part payments, cannot be said to have accepted the conditions stipulated while issuing the cheques by the railway administration. The learned Counsel in support of their contentions have placed reliance on the judgment of the Apex Court in Bhagawati Prasad Pawan Kumar v. Union of India (2006) 5 SCC 311 , as well as of the Madhya Pradesh High Court in Union of India v. Gangaram Bhagwandas AIR 1977 MP 215 . 8. The learned Counsel in support of their contentions have placed reliance on the judgment of the Apex Court in Bhagawati Prasad Pawan Kumar v. Union of India (2006) 5 SCC 311 , as well as of the Madhya Pradesh High Court in Union of India v. Gangaram Bhagwandas AIR 1977 MP 215 . 8. It has further been contended by the learned Counsel for the Respondents that even in cases where no protest letters were issued before encashment of the cheques sent by the railways with the conditions attached to it, in view of the fact that such payment was received during pendency of the proceedings before the learned Tribunal, it would not amount to acceptance of conditions attached to the cheques by conduct, as the Respondents continued with the proceedings before the learned Tribunal. The learned Counsel further argues that as in the notice issued under Section 106 of the 1989 Act the railway administration was informed that any payment received by the Respondents less than the amount claimed under the notice would be treated as part payment, therefore, encashment of the conditional cheques issued by the railways without any protest before the encashment of the cheques, which were received during pendency of the proceedings before the learned Tribunal, would not amount to acceptance of the conditions attached to the cheques, by conduct. Therefore, the provisions of Section 8 of the Indian Contract Act cannot be made applicable, submitted by the learned Counsel. 9. In reply to the arguments of the learned Counsel for the Respondents, it is submitted by the learned Counsel for the Appellants that as the proceedings before the learned Tribunal are pending, it cannot be said that the Respondents did not accept the conditions attached to the cheque by conduct by retaining/encashing the same. According to the learned Counsel, when the cheques are retained, even without encashment, it amounts to acceptance of the conditions as well as the amount sent by the cheques as full and final settlement of the claims. According to the learned Counsel, when the cheques are retained, even without encashment, it amounts to acceptance of the conditions as well as the amount sent by the cheques as full and final settlement of the claims. The learned Counsel for the Appellants further submits that imposition of any conditions issued in the notice under Section 106 of the Act of 1989 would not make any difference in the conduct of the Respondent in retaining and encashing the cheques and that too without any protest and it amounts to acceptance of the conditions imposed by the railway administration, while issuing the cheques, by conduct. 10. It has further been argued that the burden is on the Respondents who filed the claim application before the learned Tribunal claiming compensation to prove that they have not accepted the conditions attached to the cheques by conduct, which according to the learned Counsel, the Respondents have failed to do and, therefore, the judgment and orders passed by the learned Tribunal are required to be interfered with. Replying to the arguments of the learned Counsel for the Respondents, it has further been submitted that the Apex Court in Bhagawati Prasad Pawan Kumar (supra) has not held that once the Respondents encashed the cheques sent to them with the conditions stipulated therein, it would not amount to acceptance of the conditions, if before encashment of the cheques the protest is made. It is submitted that in the said case, the Apex Court has refused to give relief to the Appellant therein as it was found that the cheque was encashed by the Appellant which was sent to it with the same conditions as in the present cases. It has further been submitted that the ratio laid down in the Single Bench decision of the Madhya Pradesh High Court in Union of India v. Gangaram Bhagwandas (supra) is not the correct proposition of law, as in the said case the burden was wrongly shifted to the railway administration to show the intention of the Plaintiff that he accepted the cheque in full and final satisfaction of the claim, though, according to the learned Counsel, the burden lies on the claimant to prove his intention of not accepting the cheque in full and final satisfaction of the claim. 11. 11. I have considered the submissions of the learned Counsel for the parties and also perused the materials available on record, including the judgments and orders passed by the learned Tribunal. In the present batch of appeals, the railway administration has not disputed the quantity of goods delivered short or damaged and also the rate at which the compensation has been awarded by the learned Tribunal. What the railway administration has contended in the appeals is that the Respondents having retained and/or encashed the cheques issued with conditions attached to it, by conduct have accepted such conditions and, therefore, in view of the provisions contained in Section8 of the Indian Contract Act they are not entitled to any further amount as those cheques were issued in full and final settlement of their claims. The further contention of the railway authority is that such position of law would not be changed even if before retention and/or encashment, protest letters were issued by the Respondents. 12. For better appreciation, Section 8 of the Indian Contract Act, 1872 is reproduced below: 8. Acceptance by performing conditions, or receiving consideration.--Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal. 13. It is a settled position of law that an offer may be accepted by conduct but such conduct would only amount to acceptance if it is clear that the offeree did the act with the intention, which may be actual or apparent, of accepting the offer. In the event any conditional offer is made by an offerer and the conduct of the offeree was such as amounted to unequivocal acceptance of the offer made and there was no reservation in signifying the acceptance by conduct, it must follow that the offer has been accepted by conduct. In the event any conditional offer is made by an offerer and the conduct of the offeree was such as amounted to unequivocal acceptance of the offer made and there was no reservation in signifying the acceptance by conduct, it must follow that the offer has been accepted by conduct. There may be acceptance of offer by silence, if there is no protest from the offeree about the conditions of the offerer and the conduct of the offeree signifies such acceptance of conditions, In the present batch of cases, the cheques with conditions were issued by the railway administration in favour of the Respondents, either before filing of the proceedings before the learned Tribunal or during the pendency and such cheques were retained and encashed by the Respondents, in some cases after issuing the protest letters, in some cases after informing the learned Tribunal about receipt of such cheques and in some cases even without informing the learned Tribunal though cheques were issued and received during pendency of the proceedings before the learned Tribunal. 14. The interpretation of Section 8 of the Contract Act sought to be given by the learned Counsel appearing on behalf of the Appellants was found favour in a Division Bench decision of this Court in Bhagawati Prasad Pawan Kumar (supra) wherein it was held that as the railway in the letter containing the offer had informed the offeree that if the offer made by the cheque was not acceptable to him, the cheque should be returned forthwith, failing which it would be deemed that the offeree had accepted the offer as full and final settlement of the claim, such offer being complete in itself, it was either to be accepted or not to be accepted. It has been observed that in case of acceptance, the cheque would be retained and encashed and in case the non-acceptance cheque is to be returned to the railway office and in either case the course of conduct was indicated in the offer. Therefore, non-acceptance of the offer could only be expressed by returning the cheque and encashment of the cheque would be a conduct on the part of the claimant in performing the conditions as offered leading to the inference that encashment of the cheque was in full and final settlement of claim and it satisfies the ingredients of Section 8 of the Contract Act. The Division Bench has further held that there is no third course open, protest or no protest. 15. The said Division Bench judgment was taken to the Apex Court in Bhagawati Prasad Pawan Kumar (supra) where the Apex Court has held as under: 18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railways made an offer to the Appellant laying down the condition that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the Appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the Appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 7.4.1993. The offer prescribed the mode of acceptance, and by conduct the Appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the Appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a different complexion. In that event, in view of the express non-acceptance of the offer, the Appellant could not be presumed to have accepted the offer. What, however, is significant is that the protest and non-acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An "offeree" cannot be permitted to change his mind after the unequivocal acceptance of the offer. 19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. 19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The Courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the "offeree" was such as amounted to an unequivocal acceptance of the offer made. If the facts of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by conduct. On the other hand, if the evidence discloses that the "offeree" had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act. The Apex Court however, refused to give any relief to the Appellants therein as there was neither any pleading nor evidence on record as to the date when the cheques were received and the date on which the same were sent for encashment. Therefore, it was not possible to record any finding as to whether the letters of protest were written before or after encashment of the cheque. 16. In the instant cases, the railway administration issued the cheques with the following conditions: Please note that the cheque/pay order should be encashed for the amount mentioned therein if acceptable to you towards full and final settlement of the claim. If the amount is not acceptable to you in full and final settlement this Advice of Payment along with the cheque/pay order should be returned to this office under Regd. A/D post along with your objection, if any. If the cheque/pay order is encashed by you, it will be deemed that you have accepted the same in full and final settlement of the claim and no further claim whatsoever shall be entertained. 17. A/D post along with your objection, if any. If the cheque/pay order is encashed by you, it will be deemed that you have accepted the same in full and final settlement of the claim and no further claim whatsoever shall be entertained. 17. In view of the aforesaid position of law as enunciated by the Apex Court, it is evident that even if the railway administration issued any cheque with the aforesaid condition attached to it, if the offeree before encashment of the cheque and immediately on receipt of the same, protested such condition, it would not amount to acceptance of the conditions attached to the cheque, by conduct, for retaining and encashing the cheque. However, if the cheque is retained and encashed by the offeree without any protest then it would amount to acceptance of the offer made by the railway administration by the offeree by conduct. It is the duty of the offeree to prove that by conduct he has not accepted the conditions attached to the cheque. It is not the railway authority who is to prove otherwise, as held by the Madhya Pradesh High Court in Gangaram Bhagwandas (supra). 18. Therefore, the offeree must protest, by positive action, the condition attached to the offer before encashment, even where the cheque is received by the offeree during pendency of the proceeding before the learned Tribunal. The conduct of the offeree in continuing with the proceeding before the learned Tribunal would not be sufficient to hold that the conduct of the offeree is such as it does not amount to acceptance of the conditions. The offeree must before encashment of the cheque protest the conditions imposed and inform the railway administration about its non-acceptance of such conditions. With all respect I am unable to agree with the view expressed by the Madhya Pradesh High Court in Gangaram Bhagwandas case as in that case the burden of proof has been wrongly shifted to the railway administration to substantiate that the offeree by conduct accepted the 'conditions attached to the cheque, though it is the offeree who is to prove that his conduct does not amount to acceptance of the condition. However, in the event, the offeree, who during pendency of the proceeding for recovery of any amount receives any conditional offer and encash the cheque with liberty from the Tribunal/Court, the same would not amount to acceptance of any condition attached to the offer, as the action on the part of the offeree, in that case, would not amount to unequivocal acceptance of the offer made, rather indicative of non-acceptance ofhis offer. The contention of the Respondents that where in the notice issued under Section 106 of the 1989 Act the Railway administration has been informed that any amount less than the amount claimed under the notice shall be treated as part payment and therefore, even if the cheques are encashed without protest, such conduct of the Respondents would not amount to acceptance of the condition attached to the offer, cannot be accepted as the offeree after receipt of conditional offer and before encashment of cheques, must indicate its intention of not accepting the conditions by protesting the same. Merely by intimating the Railway authority about the offeree's intention in the notice under Section 106 of the Act, would not be enough as the conditional offer of payment by the Railway was made subsequent to such notice. 19. In view of the aforesaid discussions, I am unable to accept the submissions of the learned Counsel for the railway administration in that regard so also the submissions of the learned Counsel for the Respondents to the extent indicated above. 20. Having held so, the individual cases would now be discussed, (i) The Respondent in MFA No. 23/2007 claimed compensation before the learned Tribunal in OA No. 17/2002 for short delivery of 352 bags of iodized salt at the destination station which was booked on 8.6.2000 by the railway, the value of which was quantified at Rs. 35,848/-. The railway authority upon receipt of the notices under Section 106 of the Act offered an amount of Rs. 23,510/- by cheque with the conditions, as noticed above, which was encashed by the Respondent No evidence is led by the Respondent to prove issuance of any protest letter before such encashment though it is the burden on the Respondent to prove the same. Hence, the Respondent by conduct has accepted the conditions attached to the offer and therefore, cannot claim any further amount. (ii) The Respondent in MFA No. 39/2007 claimed compensation for Rs. Hence, the Respondent by conduct has accepted the conditions attached to the offer and therefore, cannot claim any further amount. (ii) The Respondent in MFA No. 39/2007 claimed compensation for Rs. 4,11,600/- before the learned Tribunal in OA No. 128/2002 for short delivery of 2058 bags of wheat at the destination station which was booked on 11.5.1999 by the railway. The railway administration after receipt of notices under Section 106 of the Act examined the claim of the Respondent and offered an amount of Rs. 2,40,402/- by cheque with the conditions, as quoted above, which was accepted by the Respondent by conduct as the cheque was retained and encashed by it. No evidence is led by the Respondent as to the date when such cheques were received and encashed though it is an admitted position of fact that such cheque was received and encashed. It has also not been proved as to whether any protest letter was issued by the Respondent to the railway authority protesting the conditions attached to the offer though the burden lies on the Respondent to prove the same and as such, the Respondent by conduct has accepted the conditions attached to the offer and hence, cannot claim any further amount. (iii) The Respondent in MFA No. 47/2007 claimed compensation of Rs. 13,300/- before the learned Tribunal in OA No. 225/2000 for short delivery of 119 bags of iodized salt booked on 12.5.1999 by the railway. The Respondent accepted the cheque dated 28.11.2001, with the conditions, for Rs. 7,971/- and encashed the same. Such payment was received during the pendency of the proceedings before the learned Tribunal. The Respondent though filed an application before the learned Tribunal on 11.9.2006 for passing a decree for the balance amount of Rs. 5,429/-, the record does not reflect obtaining any leave from the learned Tribunal before encashment of such cheque. The Respondent also did not prove issuance of, any protest letter before encashment of such cheque, on the other hand, after above 5 years of receipt of the cheque, filed the application before the learned Tribunal for passing a decree for the remaining amount. The conduct of the Respondent amounts to acceptance of the conditions under which the cheque was issued and hence, it cannot claim any further amount. The conduct of the Respondent amounts to acceptance of the conditions under which the cheque was issued and hence, it cannot claim any further amount. (iv) OA No. 273/01, was filed by the Respondent in MFA No. 55/2007 before the learned Tribunal claiming an amount of Rs. 21,026/- for short delivery of 6482 kgs of rice which was booked for carriage on 10.4.1998. It is on record that before filing the application before the learned Tribunal the railway offered an amount of Rs. 43,794/- vide cheque dated 23.6.2000 with the conditions as quoted above and on receipt of the same, the Respondent immediately on 29.6.2000 protested about the conditions imposed in the cheque and intimated the railway authority that it will hold the cheque for, 15 days and claimed the balance amount within 15 days, otherwise it would be treated as part payment against their claim and would encash thereafter. The cheque was thereafter encashed on 31.7.2000 i.e. after expiry of' 15 days from the date of receipt of such protest letter by the railway administration on 4.7.2000. The Respondent having protested the conditions imposed while issuing the cheque, cannot be said to have accepted the conditions and its conduct of such encashment would not amount to acceptance of the conditions under which the cheque was issued. The Respondent, therefore, is entitled to the amount of Re. 11,651/- as has been ordered by the learned Tribunal. (v) In MFA No. 61/2007 the railway has challenged the order of the learned Tribunal dated 27.4.2007 awarding compensation of Rs. 5,540/- passed in OA No. 591/2000, on the basis of the allegation that the consignment of Chatti masur booked on 6.7.1998 was short delivered at the destination station by 1134 kgs. In the said case also during pendency of the Original Application the railway issued the cheque with the conditions on 21.2.2001. On receipt of such cheque and before encashment, the protest letter dated 28.2.2001 was issued intimating the railway administration to pay the balance amount, otherwise it would be treated as part payment against the claim, which though was received by the railways, the Respondent was not intimated anything and the cheque was encashed thereafter. The conduct of the Respondent in this case also does not amount to acceptance of the conditions attached to the offer, so as to disentitle them from realizing the balance amount. The conduct of the Respondent in this case also does not amount to acceptance of the conditions attached to the offer, so as to disentitle them from realizing the balance amount. The learned Tribunal, therefore, has rightly passed the order of compensation. (vi) The Respondent in MFA No. 64/2007 filed OA No. 105/2000 claiming compensation of Rs. 71,000/- for short delivery of 7100 kgs. of rice, consignment of which was booked on 23.2.1998. In this case also the railway offered an amount of Rs. 45,185/- by cheque dated 11.11.1999 with the conditions, which was immediately objected to by the Respondent by letter dated 11.11.1999 itself which was received by the railway administration on 18.11.1999 and after waiting for 10 days for payment of the balance amount the said cheque was encashed on 23.12.1999. The Respondent in this case also could prove by adducing evidence that by conduct it has not accepted the conditional offer of the railway administration. Hence, the learned Tribunal has rightly directed the railway administration to pay the amount of Rs. 10,599/- with interest vide judgment dated 1.3.2007. (vii) OA No. 40/2000 was filed by the Respondent in MFA No. 68/2007 praying for compensation of Rs. 9,757/- being the balance unpaid amount of the cost of 3500 Kgs. of wheat delivered in the destination station in damaged condition, contending that out of 140 bags of wheat booked from G.D. to NBQ on 16.7.1998, 100 bags of wheat were found in damaged condition at the destination station and after granting assessment delivery, 3500 kgs of wheat was found to be in damaged condition, the price of which was Rs. 28,000/-. According to the Respondent, after receipt of the notices issued under Section 106 of the Act, the railway authority paid an amount of Rs. 18,243/- vide cheque dated 3.12.1999 with the condition to which it immediately on 4.12.1999 protested and thereafter, upon expiry of the time given to the railway authority to pay the balance amount, the cheque was encashed on 27.12.1999. The learned Tribunal passed the order for payment of compensation of Rs. 6,012/- with interest and costs. It appears from the materials available on record that the conditional cheque was issued on 3.12.1999, on receipt of which the Respondent on 4.12.1999 protested and such protest letter was received by the railway authority on 8.12.1999. The Respondent could also prove the encashment of such cheque on 27.12.1999. 6,012/- with interest and costs. It appears from the materials available on record that the conditional cheque was issued on 3.12.1999, on receipt of which the Respondent on 4.12.1999 protested and such protest letter was received by the railway authority on 8.12.1999. The Respondent could also prove the encashment of such cheque on 27.12.1999. In view of the above, the Respondent could prove that it did not accept the conditions attached to the cheque and hence, the learned Tribunal has not committed any illegality in passing the order directing payment of compensation. (viii) The Respondent in MFA No. 74/2007 filed OA No. 957/99 claiming an amount of Rs. 9,422/- for short delivery of 3380 kgs of wheat, the consignment of which was booked by the railway on 16.7.1998, after deducting Rs. 17,618/- received by it vide cheque dated 6.12.1999. In the said case also the railway administration upon receipt of the notice under Section 106 of the Act vide cheque dated 2.11.1999 made a conditional offer of Rs. 17,618/- which was immediately protested by the Respondent by issuing the letter dated 2.11.1999 which was received by the railway administration on 4.11.1999. The Respondent thereafter on 16.11.1999 encashed the cheque having not received any reply from the railway administration. The learned Tribunal on the basis of such factual foundation has directed payment of the amount of Rs. 5,804/- to the Respondent. The said order in view of the aforesaid facts and circumstances cannot be termed as illegal as the Respondent could prove that by conduct it has not accepted the conditions attached to the offer. (ix) The Respondents in MFA No. 75/2007 filed OA No. 387/2000 claiming a sum of Rs. 68,380/- as compensation for the short delivery and damage caused to the extent of 304 bags of cement, the consignment of which was booked on 18.7.1999. During pendency of the proceedings before the learned Tribunal the railway administration made a conditional offer vide cheque dated 16.11.2000 for Rs. 33,354/- and the learned Tribunal without recording any finding relating to the conduct of the Respondent in accepting and encashing such cheque has awarded an amount of Rs. 15,286/-. It is an admitted position of fact that such cheque dated 16.11.2000 was encashed. The Respondent, however, did not adduced any evidence whatsoever to show that he has objected to such conditions imposed by the railway before encashment of the cheque. 15,286/-. It is an admitted position of fact that such cheque dated 16.11.2000 was encashed. The Respondent, however, did not adduced any evidence whatsoever to show that he has objected to such conditions imposed by the railway before encashment of the cheque. The record also does not reflect obtaining any leave of the learned Tribunal before encashment of such cheque by the Respondent, though it is the burden of the Respondent to prove his conduct. Hence, the Respondent cannot claim any further amount having accepted the conditions by conduct attached to the offer. (x) OA No. 51/2000 was filed by the Respondent in MFA No. 82/2007 before the learned Tribunal claiming compensation of Rs. 12,000/- for short delivery of 120 bags of iodized salt containing 70 Kgs. in each bag booked by the railway on 13.8.1998. The railway on receipt of notices under Section 106 of the Act issued the Pay Order dated 29.10.1999 for Rs. 4,992/- with the conditions attached to it. The Respondent immediately on receipt of the Pay Order protested in writing, which was received by the railway administration on 22.11.1999 and the cheque was encashed after expiry of the time given to the railway administration i.e. on 6.12.1999, to pay the balance amount. The learned Tribunal in this case also has rightly directed payment of the balance amount with cost as the Respondent could prove that he has not accepted the conditions attached to the offer. (xi) The Respondent in MFA No. 86/2007 filed OA No. 590/2000 claiming an amount of Rs. 49,000/-. for short delivery and damage of 4701 kgs. of rice, the consignment of which was booked on 19.4.1998. The railway administration on receipt of the notices under Section 106 of the Act offered an amount of Rs. 32,201/- vide cheque dated 13.2.2001, during pendency of the proceedings before the learned Tribunal. The Respondent could prove before the learned Tribunal that it has immediately on receipt of such cheque with conditions attached to it protested in writing vide communication dated 14.2.2001 which was received by the railway administration on 16.2.2001 and claiming the balance amount. The cheque was thereafter encashed by the Respondent. The Respondent therefore could prove that encashment of the cheque does not amount to acceptance of the offer with the conditions attached to it made by the railways. Hence, the learned Tribunal has rightly awarded the amount of Rs. The cheque was thereafter encashed by the Respondent. The Respondent therefore could prove that encashment of the cheque does not amount to acceptance of the offer with the conditions attached to it made by the railways. Hence, the learned Tribunal has rightly awarded the amount of Rs. 7,553/- with interest and cost. (xii) The Respondent in MFA No. 87/2007 filed OA No. M49/2000 claiming an amount of Rs. 21,800/- for the short delivery of 2725 kgs. of wheat, the consignment of which was booked on 30.9.1997. The learned Tribunal vide judgment and order dated 20.4.2007 awarded compensation of Rs. 8,388/- with interest and costs. It appears from the record that during pendency of the proceedings before the learned Tribunal, the railway issued a cheque dated 3.11.2000 for Rs. 13,244/- with the conditions, which was immediately protested by the Respondent vide communication dated 6.11.2000 which was received by the railways, advising the railway to pay the balance amount. The Respondent after expiry of 15 days from the date of receipt of such protest letter by the railway encashed the cheque on 30.11.2000. The materials available on record therefore prove that the Respondent did not accept the conditions attached to the cheque and hence, its conduct of encashment of such cheque would not amount to acceptance of the conditions. Hence, the learned Tribunal has rightly passed the order of compensation. (xiii) OA No. 23/2001 was filed by the Respondent in MFA No. 97/2000 claiming compensation of Rs. 1,610/- for short delivery of 10 bags of cement, consignment of which was booked on 15.2.1998. It is evident from the materials available on record that during pendency of the proceedings before the learned Tribunal the railway vide Pay Order dated 31.10.2001 made a conditional offer of Rs. 1,124/- to the Respondent which was admittedly encashed by the Respondent. It appears from the record that the Respondent before encashment of such cheque did not obtain any leave of the learned Tribunal for encashment. The Respondent did not adduce any evidence before the learned tribunal relating to issuance of any protest letter protesting the conditions attached to such Pay Order. Therefore, encashment of the Pay Order, which was issued with conditions, amounts to acceptance of such conditions attached to such Pay Order, in the absence of any proof contrary thereto. The Respondent did not adduce any evidence before the learned tribunal relating to issuance of any protest letter protesting the conditions attached to such Pay Order. Therefore, encashment of the Pay Order, which was issued with conditions, amounts to acceptance of such conditions attached to such Pay Order, in the absence of any proof contrary thereto. The learned Tribunal without taking into consideration that aspect of the matter has directed payment of the balance amount with interest and cost, which cannot be sustained in law. (xiv) The Respondent in MFA No. 98/2007 filed OA No. 475/01 before the learned Tribunal claiming an amount of Rs. 98,078/- for short delivery of 13603 kgs of wheat out of the consignment booked on 1.12.2000. It appears from the materials available on record that the railway administration on receipt of the notices under Section 106 of the Act offered an amount of Rs. 74,844/- vide cheque dated 13.6.2002 with conditions on receipt of which the Respondent immediately on 18.6.2002 protested and demanded the balance amount. The Respondent thereafter encashed the cheque for Rs. 74,844/- after the time given to the railway to make the payment of the balance amount. In the said protest letter dated 18.6.2002 it was made known to the railway that in case the reply is not received by the Respondent it would treat such offer to be the part payment against its claim. The cheque was thereafter encashed, it is evident from the aforesaid factual position as reflected in the record that the Respondent did not accept the conditions attached to the offer as it has immediately protested the same and, therefore, the conduct of the Respondent in encashing the cheque does not amount to acceptance of the conditions. The learned Tribunal, therefore, has rightly directed the railway administration to pay the balance amount with interest and cost. (xv) The Respondent in MFA No. 99/2007 filed OA No. 205/2000 before the learned Tribunal claiming an amount of Rs. 6,402.85 contending that 309 bags of iodized salt was short delivered by the railway, the value of which was Rs. 26,156.85. The railway on receipt of the notices under Section 106of the Act paid an amount of Rs. (xv) The Respondent in MFA No. 99/2007 filed OA No. 205/2000 before the learned Tribunal claiming an amount of Rs. 6,402.85 contending that 309 bags of iodized salt was short delivered by the railway, the value of which was Rs. 26,156.85. The railway on receipt of the notices under Section 106of the Act paid an amount of Rs. 19,754/- vide Pay Order dated 29.10.1999 and Cheque dated 3.12.1999 with conditions and the said Pay Order and cheque were encashed after issuing protest letter and giving time to the railway administration to pay the balance amount The Respondent by producing the necessary documents proved that on receipt of the Pay Order and cheque it immediately protested vide letters dated 29.10.1999 and 4.12.1999 about the conditions and informed the railway to pay the balance amount, otherwise such amount would be treated as part payment against its claim. The cheque and the Pay Order were encashed on 23.12.1999 i.e. after 10 days from the date of receipt of the protest letter by the railway. That being the position, the learned Tribunal has rightly directed payment of the balance amount to the Respondent with interest and cost as the Respondent could prove that its conduct in encashing the Pay Order and the cheque does not amount to the acceptance of the conditions attached to the offer. (xvi) The Respondent in MFA No. 100/2007 filed OA No. 403/2000 claiming an amount of Rs. 15,372/- being the balance of the value of 154 bags of iodized salt delivered short by the railway, out of the consignment booked on 23.3.1999, by deducting a sum of Rs. 6,761/- which was received by cheque with conditions. The Respondent in the said proceedings has proved that on receipt of the cheque for Rs. 6,761/- dated 11.7.2000 he immediately issued a protest letter on 21.7.2000 which was received by the railway administration on the same day and thereafter on 16.8.2000, encashed the cheque when the railway administration did not pay the balance amount. The Respondent by producing such materials before the learned Tribunal proved that it has not accepted the conditions attached to the offer and therefore, its conduct of encashment of the cheque does not amount to acceptance of the conditions attached to the offer. The learned Tribunal, therefore, has rightly directed the railway administration to pay the amount of Rs. 10,580/- with interest and cost. The learned Tribunal, therefore, has rightly directed the railway administration to pay the amount of Rs. 10,580/- with interest and cost. (xvii) The Respondent in MFA No. 114/2007 filed OA No. M-39/2001 claiming an amount of Rs. 5,563/- for short delivery of 75 bags of 50 kgs each of iodized salt, out of the consignment booked on 19.11.1997, after deducting an amount of Rs. 3,338/- received by it vide conditional cheque dated 11.7.2001. The record reveals that the Respondent received the cheque for Rs. 3,338/- dated 11.7.2001 and immediately on receipt of the same issued the protest letter in writing on 18.7.2001 which was received by the railway administration on 23.7.2001, requesting the railway authority to pay the balance amount and further intimating that in case no reply is received within 15 days, the cheque would be treated as part payment against its claim. The cheque was thereafter encashed. It is, therefore, evident that the Respondent could prove that his conduct of encashment of the cheque does not amount to acceptance of the conditions attached to the offer. The learned Tribunal, therefore, has rightly passed the order directing the railway administration to pay an amount of Rs. 2,287/- with interest and cost vide its judgment and order dated 11.6.2007. (xviii) OA No. 567/2000 was filed by the Respondent in MFA No. 139/2007 before the learned Tribunal claiming an amount of Rs. 7,788/- being the balance of the value of 182 bags of iodized salt of 50 kg each, out of the consignment booked on 30.6.1999, being the short delivery, contending that the railway administration upon receipt of the notices under Section 106 of the Act offered an amount of Rs. 8,366/- vide cheque dated 19.10.2000 'with the conditions, which was immediately protested by the Respondent by issuing the protest letter dated 6.11.2000, which was received by the railway administration on 7.11.2000 and the said cheque was encashed on 22.11.2000, i.e. after expiry of 15 days time given to the railway administration to pay the balance amount. The learned Tribunal directed the railway administration to pay the amount of Rs. 5,029/- with interest and cost. From the materials available on record it is evident that the Respondent could prove the issuance of protest letter as well as the date of receipt of the cheque and also the date of encashment. The learned Tribunal directed the railway administration to pay the amount of Rs. 5,029/- with interest and cost. From the materials available on record it is evident that the Respondent could prove the issuance of protest letter as well as the date of receipt of the cheque and also the date of encashment. The conduct of the Respondent, therefore, does not amount to acceptance of such conditions attached to the offer. The learned Tribunal, therefore, has rightly passed the judgment and order challenged in the appeal. (xix) The Respondent in MFA No. 143/2007 filed OA No. 84/2000 before the learned Tribunal claiming an amount of Rs. 15,404/- as compensation for short delivery contending that 3373 kgs. of rice was damaged in transit, the value of which was Rs. 33,730/- and out of which an amount of Rs. 18,326/- has been paid by the railway vide conditional cheque dated 11.11.1999 and the Respondent immediately on receipt of the cheque issued the protest letter dated 11.11.1999 which was received by the railway administration on 18.11.1999. It was contended that the cheque was encashed on 2.12.1999 after expiry of the time given by the Respondent in the protest letter to the railway administration for payment of the balance amount. The learned Tribunal directed the railway administration to pay an amount of Rs. 7,126/- with interest and cost. Considering the materials available on record, it appears that the Respondent could prove that the conditions attached to the offer made vide cheque dated 11.11.1999 has not been accepted by the Respondent as it has issued the protest letter and the cheque was encashed 10 days after the receipt of such protest letter by the railway administration. The conduct of the Respondent, therefore, does not amount to acceptance of the conditions attached to the offer so as to disentitle it from claiming the balance amount. The learned Tribunal therefore, in my opinion, has rightly passed the judgment and order impugned in this appeal. 21. In view of the aforesaid discussion, the MFA Nos. 55/2007, 61/2007, 64/2007, 68/2007, 74/2007, 82/2007, 86/2007, 87/2007, 98/2007, 99/2007, 100/2007, 114/2007, 139/2007 and 143/2007 are dismissed, affirming the judgments and orders passed by the learned Tribunal. The MFA Nos. 23/2007, 39/2007, 47/2007, 75/2007, and 97/2007 are allowed by setting aside the impugned judgments and orders passed by the learned Tribunal. In view of the aforesaid discussion, the MFA Nos. 55/2007, 61/2007, 64/2007, 68/2007, 74/2007, 82/2007, 86/2007, 87/2007, 98/2007, 99/2007, 100/2007, 114/2007, 139/2007 and 143/2007 are dismissed, affirming the judgments and orders passed by the learned Tribunal. The MFA Nos. 23/2007, 39/2007, 47/2007, 75/2007, and 97/2007 are allowed by setting aside the impugned judgments and orders passed by the learned Tribunal. Keeping in view the facts and circumstances of the appeals, the parties are directed to bear their own cost in the appellate stage.