Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 1770 (ALL)

UNION OF INDIA v. JHUNJHUNWALA VANASPATI LTD

2009-04-27

PANKAJ MITHAL

body2009
PANKAJ MITHAL, J, J. ( 1 ) A consignment of edible oil/crude oil was accepted for transportation by the Railways on the basis of dip measurement. However, during the course of transportation it was weighed by motion bridge and on the basis of such weighment the excess load found was subjected to further freight vide demand notice dated 23. 10. 2007. Thus, a dispute having arisen, a suit challenging the demand notice was instituted. The suit was decreed. In appeal preferred by Railways this court on 2. 02. 09 passed the following order. "this is a regular first appeal. Suit filed by the plaintiff respondent has been decreed. On the facts and circumstances keeping in mind the nature of the decree this Court directs that the decree will remain effective in respect to the consignment covered by the notice dated 23. 10. 2007 and that will not apply in respect to any future consignment and as and when a notice is received the respondent may file proper application before this Court for getting the relief in that respect. Admit. Notices meant for respondents has been accepted by Shri S. D. Ojha, Shri V. K. Goel appears for the defendant appellant. Records be summoned at the appellants expense. It is always open for both the parties to file an application before this Court for early listing as and when the record is received and the Court may consider the same. " ( 2 ) NOW the appellants have issued a notice dated 25. 2. 09 demanding additional freight from the respondents in respect of the various subsequent consignments during the period from 29. 10. 07 to 1. 12. 09. Accordingly, the respondents on the strength of the interim order of this court dated 02. 02. 09 has applied for its stay to which counter has been filed. Rejoinder affidavit filed today taken on record. ( 3 ) HEARD Shri V. K. Goel, learned Counsel for the appellants and Shri V. K. Dixit along with Shri S. D. Ojha in support of stay application. ( 4 ) SRI V. C. Dixit, learned counsel for the respondent in support of the stay application has submitted that once the suit has been decreed and the demand on the basis of weighment done through motion bridge was not accepted, it is not proper for the Railways to raise any subsequent demand again on that basis. ( 4 ) SRI V. C. Dixit, learned counsel for the respondent in support of the stay application has submitted that once the suit has been decreed and the demand on the basis of weighment done through motion bridge was not accepted, it is not proper for the Railways to raise any subsequent demand again on that basis. He has relied upon a letter/circular dated 6. 2. 2009, said to have been issued by the Ministry of Railways which provides that weighment of molasses and edible oil should be done through dip measurement method and, therefore, weighment through motion bridge would not be an acceptable mode of measurement to raise any demand for additional freight. ( 5 ) SHRI V. K. Goel, learned Counsel for the appellants submits that with regard to this demand, the respondents have not clearly stated as to whether the goods which were transported or involved in the above consignments were in the form of edible oil or crude oil. It is also not known as to on what basis this additional freight is being charged in as much as there is no averment from the side of the respondents that the weighment was done on the motion bridge. In view of the aforesaid respective submissions of the parties it appears that in so far as the subsequent demand is concerned disputed questions of fact are involved which cannot be effectively dealt with in this appeal at least at the interim stage. Every transaction has to be considered on its own facts, it is therefore, in the interest of both the parties to allow the respondent to make objections to the demand notice dated 25. 2. 2009 before the competent concerned authority of the Railways and to allow the said authority to pass a speaking order thereon. ( 6 ) IN view of the aforesaid facts and circumstances, the stay application is disposed of by permitting the respondent to file objections to the demand notice dated 25. 2. 2009 before the concerned Railway authority within a period of two weeks from today. In the event such objections are preferred, the authority concerned shall consider and decide the same by a speaking order in accordance with law considering the applicability of the latter/circular of the Ministry of Railways dated 6. 2. 2009 and the other relevant facts which may be necessary for the purpose. In the event such objections are preferred, the authority concerned shall consider and decide the same by a speaking order in accordance with law considering the applicability of the latter/circular of the Ministry of Railways dated 6. 2. 2009 and the other relevant facts which may be necessary for the purpose. The decision thereof shall be taken by the authority concerned within a period of three weeks from the presentation of the objections and in the meantime till the said objections are decided, the demand of additional freight under the notice dated 25. 2. 2009 would remain stayed and shall abide by the decision on the objections. ( 7 ) IT is made clear that in case, the objections are not made within the time provided above, the respondent would not be entitled to the interim protection as granted above. Application disposed of. .