JUDGMENT AND ORDER : 1. Heard Mr. U.K. Nair, the learned Senior Counsel, assisted by Mr. A. Chetry, the learned Counsel appearing for the appellant-NF Railway. Also heard Ms. M. Sharma, learned counsel appearing for the respondent. 2. This appeal preferred under the provisions of section 23 of the Railway Claims Tribunal Act, 1987 is directed against the judgment and order dated 06.05.2009 passed by the learned Railway Claims Tribunal, Guwhati Bench, Guwahati, in Claim Application No. 456/2001. By the impugned judgment, the appellant was directed to pay the applicant a sum of Rs.60,915/- along with interest at the rate of 7.5% per annum from the date of filing of the claim application till realization. The appellant was also directed to pay the cost of application fees of Rs.1,900/- and Legal Practitioner’s fees of Rs.1,550/-. It was ordered that the order would not prejudice the right of the appellant herein to recover the outstanding dues from M/s. Daurala Sugar Works as per law. 3. The facts as revealed from the record is that one M/s. Daurala Sugar Works, as the consignor, had booked a train load of sugar at Daurala with destination at Guwahati to itself. The goods were covered by R.R. Nos. 184048 to 184050 and 466051 to 466986 all dated 21/24.11.2000. Freight was collected on wagon load basis instead of train load basis and, as such, a sum of Rs.60,915/- became refundable by the Railways to the said consignor, i.e. M/s. Daurala Sugar Works. 4. The said consignor i.e. M/s. Daurala Sugar Works, who by booking the consignment to itself also stood in the footing of the consignee. They issued a undated “Letter of Authority cum Disclaimer Certificate”, thereby certifying that the train load sugar consignment under Invoice No. 1 to 39, R.R. Nos. 184048 to 184050 and 466051 to 466986 all dated 21/24.11.2000, total 39 wagons of sugar to the respondent, M/s. Shree Gopal Enterprises, H.M. Market, Fancy Bazar, Guwahati-1 and received the entire consignment money from them. All rights, title, etc. over the said consignment was disclaimed in their favour, inter-alia, also giving the Railway the right to settle claim with them and the right to the said transferee to claim refund from the railway. 5. As stated above, the Railways had collected freight on wagon load basis instead of train load basis and, as such, a sum of Rs.60,915/- became refundable by the Railways. 5. As stated above, the Railways had collected freight on wagon load basis instead of train load basis and, as such, a sum of Rs.60,915/- became refundable by the Railways. The respondent otherwise validly made the claim for such refund. The respondent i.e. M/s. Shree Gopal Enterprises, claiming its right for the refund, made a demand for such refund by their letter dated 16.01.2001 and thereafter served Advocate’s notice dated 08.03.2001. 6. By a letter No. I/6090-6128/N/RF3/FOC/2001 dated 23.08.2001, the Northern Railway authorities informed the respondent- transferee, namely, M/s. Shree Gopal Enterprises, inter-alia, that they were entitled to refund of Rs.60,915/-, but as there was a previous outstanding of Rs.45,738/- payable by M/s. Daurala Sugar Works to the Northern Railway since 1991 and despite reminders, the same had remained unpaid and, as such, the said sum was adjusted against the outstanding dues and balance payment of Rs.15,177/- was being released by two pay orders No. 399333 and 399334 dated 09.08.2000 for Rs.7787/- and Rs.7390/- respectively. The respondent returned the said pay orders as a protest. 7. For claiming the entire refund of Rs.60,915/-, the respondents approached the learned Railway Claims Tribunal, Guwahati Bench, Guwahati and filed their claim application, which was registered as Claim Application No. 456/2001. The appellant on receipt of notice filed their show cause reply, stating that the pending dues of the year 1991 were rightly adjusted. 8. On the basis of pleadings, the following issues were framed by the said learned Tribunal; viz. 1. Whether the legal and valid notice under the Railways Act was served by applicant upon respondent? 2. Whether the application has been signed, verified, filed by a duly competent person on behalf of the applicant? 3. Whether the applicant proves that railway administration over charged railway freight instead of correct freight? 4. To what relief, if any, the applicant is entitled? 5. What order? 6. Whether the respondent proved that they could adjust the amount due from consignor from refundable amount of consignee? 9. In respect of issue No.3, the learned Tribunal decided the issue in favour of the respondent herein, holding that Rs.60,915/- was refundable. 4. To what relief, if any, the applicant is entitled? 5. What order? 6. Whether the respondent proved that they could adjust the amount due from consignor from refundable amount of consignee? 9. In respect of issue No.3, the learned Tribunal decided the issue in favour of the respondent herein, holding that Rs.60,915/- was refundable. In respect of issue No.6, the learned Tribunal by referring to the provisions of Section 74 and 75 of the Railways Act, 1989, held that the said provisions related to transaction covered under the “Railway Receipt” and the liabilities of the consignee/consignor/Railway is considered to be applicable to a particular transaction. It was held that in this case the outstanding for the year 1991 was being adjusted against a future transaction, in which the consignee was getting adversely affected financially without his fault for failure of Daurala Sugar Works in the distant past. It was held that the consignee was put at loss/penalty for which he is not responsible and outstanding dues is not concerned with this particular booking/transaction and, as such, the issue was decided against the respondent herein and resultantly, the appellant was directed to pay the full refundable amount of Rs.60,915/-. 10. The learned Standing Counsel for the Appellant- Railways has submitted that under the provisions of Section 83 of the Railways Act, 1989, the Railways had lien for freight any other sum due and, as such, the appellant had acted within its right to exercise lien on the money found refundable to the respondent. It is submitted that the Railways recognized ‘Railway Receipt’ as a document with which the title over goods passes and, as such, as the respondent was the holder of ‘Railway Receipt’, the Appellant had an indefeasible right to recover its dues from the consignee. In support of his argument, the learned counsel for the appellant has relied on the provisions of section 74 of the Railways Act, 1989. Hence, it is submitted that there was no infirmity in deducting a sum of Rs.45,738/- out of the total refundable amount of Rs.60,915/-, and for refunding the balance amount of Rs.15,177/- by way of two pay orders No. 399333 and 399334 dated 09.08.2000 for Rs.7787/- and Rs.7390/- respectively. 11. Hence, it is submitted that there was no infirmity in deducting a sum of Rs.45,738/- out of the total refundable amount of Rs.60,915/-, and for refunding the balance amount of Rs.15,177/- by way of two pay orders No. 399333 and 399334 dated 09.08.2000 for Rs.7787/- and Rs.7390/- respectively. 11. Per contra, the learned counsel for the respondent has argued in support of the order impugned herein by submitting that by virtue of a valid transfer of the ‘Railway Receipt’ in favour of the respondent by M/s. Daurala Sugar Works, the respondent had stepped into the shoes of consignee by operation of Section 74 of the Railways Act, 1989. Therefore, as per the provisions of Section 83(1), the Appellant-Railways could only realize its demand from the consignor on whom the Appellant had raised a demand. Having raised the demand on M/s. Daurala Sugar Works, the Appellant could not have realized its stale and time-barred claim from the respondent- consignee after the title of goods passed on to the respondent- consignee. 12. Therefore, the point of determination, which has arisen in this appeal are as follows:- (a) Whether the decision by the learned Railways Claims Tribunal, Guwahati Bench, on issue No.6 that outstanding dues is not concerned with the particular transaction is in accordance with law? (b) Whether money found refundable to the consignee can be adjusted against the claim for outstanding freight payable by a consignor in exercise of right of lien over consignment by invoking section 83 of the Railways Act? (c) Whether the impugned judgment and order is sustainable on facts and in law? 13. It would be appropriate to quote the provisions of Section 74 and 83 of the Railways Act, 1989 for appreciating the arguments advanced by the learned Counsels for both sides. “74. Passing of property in the goods covered by railway receipt. — The property in the consignment covered by a railway receipt shall pass to the consignee or the endorsee, as the case may be, on the delivery of such railway receipt to him and he shall have all he rights and liabilities of the consignor. 83. “74. Passing of property in the goods covered by railway receipt. — The property in the consignment covered by a railway receipt shall pass to the consignee or the endorsee, as the case may be, on the delivery of such railway receipt to him and he shall have all he rights and liabilities of the consignor. 83. Lien for freight or any other sum due.—(1) If the consignor, the consignee or the endorsee fails to pay on demand any freight or other charges due from him in respect of any consignment, the railway administration may detain such consignment or part thereof or, if such consignment is delivered, it may detain any other consignment of such person which is in, or thereafter comes into its possession. (2) The railway administration may, if the consignment detained under sub-section (1) is—(a) perishable in nature, sell at once; or(b) not perishable in nature, sell, by public auction, such consignment or part thereof, as may be necessary to realise a sum equal to the freight or other charges:34 Provided that where a railway administration for reasons to be recorded in writing is of the opinion that it is not expedient to hold the auction, such consignment or part thereof may be sold in such manner as may be prescribed. (3) The railway administration shall give a notice of not less than seven days of the public auction under clause (b) of sub-section (2) in one or more local newspapers or where there are no such newspapers in such manner as may be prescribed. (4) The railway administration may, out of the sale proceeds received under sub-section (2), retain a sum equal to the freight and other charges including expenses for the sale due to it and the surplus of such proceeds and the part of the consignment, if any, shall be rendered to the person entitled thereto.” 14. Point of determination No. (a): (14.1) From a plain reading of the provisions of Section 74 quoted above, it is apparent that the property in the consignment covered by the ‘Railway Receipt’, passes over to the endorsee on delivery of such ‘Railway Receipt’. (14.2) In the present case, the respondent got the consignment endorsed to them by delivery of the consignment notes to them, which was accompanied by a declaration written by the consignor i.e. M/s. Daurala Sugar Works. (14.2) In the present case, the respondent got the consignment endorsed to them by delivery of the consignment notes to them, which was accompanied by a declaration written by the consignor i.e. M/s. Daurala Sugar Works. Hence, the respondent herein would have all the rights and liabilities of M/s. Daurala Sugar Works, who was both the consignor and consignee. They had booked the consignment of sugar to self. Therefore, by operation of section 74 of the Railways Act, 1989, this court has no hesitation to hold that along with the rights over the property, the liability attached to the said consignment was also shifted on the respondent. (14.3) As per the provisions of Section 83 of the Railways Act, it is provided that if the consignor, the consignee or the endorsee fails to pay on demand any freight or other charges due from him in respect of any consignment, the railway administration may detain such consignment or part thereof or, if such consignment is delivered, it may detain any other consignment of such person which is in, or thereafter comes into its possession. Therefore, the provisions of Sub- section (1) of Section 83 of the said Act envisages lien over two distinct class of consignment, (i) one which is the particular consignment, and (ii) if such consignment has been delivered, on any other consignment that comes into the possession of the Railways. (14.4) The meaning and purport of the said provisions of Section 83(1) is to enable the Railways to exercise its lien on any consignment which may belong to (i) the consignor, (ii) the consignee, and (iii) the endorsee, if such person fails to pay its dues on demand. (14.5) Therefore, the first point of determination No. (a) is answered in the negative and in favour of the Appellant-Railways by holding that the lien on ‘consignment’ as envisaged in Section 83 of the Railways Act, 1989 does not cover only a particular transaction, but the lien of the Railways over any consignment, including the one covered by particular transaction or concerning any other present or future consignment, stands live so long as it is enforceable against the consignor or the consignee as the case may be for the concerned Railway’s past recoverable dues. (14.6) Consequently, the observation made by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati, in respect of issue No.6 to the effect that “These sections are related to transaction covered under the railway receipt and the liabilities of the consignor/consignee/Railway is considered to be applicable to a particular transaction” and “In view of this, the consignee has been put to loss for which he is not responsible and outstanding dues is not concerned with this particular booking/transaction.”, are not sustainable, being contrary to the provisions of section 83(1) of the Railways Act, 1989. 15. Point of determination No. (b) and (c) are taken up together. (15.1) Now it is to be examined that whether the claim, which relates to the demand by the Northern Railways for the year 1991, and that too in respect of M/s. Daurala Sugar Works could have been lawfully deducted from the refund payable to the respondent. (15.2) In this case, the appellant had not approached any court of law for claiming recovery of money. It adjusted its outstanding claim from money found refundable to M/s. Daurala Sugar Works. (15.3) In the opinion of this Court, if recovery of any money becomes barred by limitation, it would mean that the law of limitation bars the remedy through court and, as such, the claim cannot be enforced through a court of law, but merely because recovery of money is not possible through court, it does not ex-facie extinguish a debt. (15.4) In this case the appellant was trying to initiate any proceeding to recover a time barred debt through court. However, under the special law, i.e. the Railways Act, 1989 the provisions of section 83 provide that the Appellant- Railways would continue to retain its lien over the consignment against its freight due either under the particular transaction or for any transaction that may have occasioned in the past. The provisions of section 83 of the Railways Act, 1989 does not provide for any prescribed period of limitation to limit the period of time when the lien of the concerned Railways over the consignment/goods transported through Railways would end. The provisions of section 83 of the Railways Act, 1989 does not provide for any prescribed period of limitation to limit the period of time when the lien of the concerned Railways over the consignment/goods transported through Railways would end. (15.5) Therefore, in the opinion of this Court, only because a claim is not enforceable through a court of law, no legal bar is created to prevent the Railways for adjustment of its dues receivable from the money payable to the consignee, even if such money relates to a subsequent period after the lapse of the period of limitation has expired. The said opinion also comes with a rider as explained hereinafter. (15.6) In the present case in hand, the Appellant- Railways did not exercise its right of lien over any consignment/goods that was being transported at any of the three stages, i.e. (i) loading of consignment, (ii) transportation of consignment, and (iii) delivery of consignment. The appellant has not been able to show any document by which the Appellant- Railways had put the respondent herein to a notice in respect of any lien that existed on the consignment/goods covered by the ‘Railway Receipt’ either before or at the time of making the delivery of goods. (15.7) Therefore, at the time of taking delivery of goods covered by the ‘Railway Receipt’ in question, the respondent, either as a consignee or as an endorsee from M/s. Daurala Sugar Works, did not have any notice of the existence of any lien that might be standing against or in respect of the said particular consignment. Hence, at the time when the Appellant-Railways had decided to enforce their lien, neither there was any consignment/goods available, nor such lien was sought to be exercised on any consignment as envisaged under section 83 of the Railways Act, 1989 by detaining any consignment. (15.8) Moreover, even at the time of delivering the consignment to the respondent, the Railways had not put the respondent to notice that the Railways were reserving their right of lien over the consignment that was being delivered against dues receivable by them. (15.9) Thus, instead of any consignment, there existed only the claim for money refundable to the respondent on account of excess freight charged when the right of lien was exercised. (15.9) Thus, instead of any consignment, there existed only the claim for money refundable to the respondent on account of excess freight charged when the right of lien was exercised. Upon reading the provisions of Section 83 of the Railways Act, 1989 it appears that the Legislature in all its wisdom did not deem it fit to keep the lien of the Railways alive in respect of money payable to the consignor/consignee on account of refund. In this present case in hand, the appellant- Railways has not been able to successfully demonstrate that the ‘refundable money’ and ‘goods’ are both covered by the provisions of Section 83 of the Railways Act, 1989.Therefore, the right of lien was not exercised before the consignment was delivered to the respondent, who was a third party-consignee. (15.10) This Court is unable to accept that the refund on account of excess freight charged is deemed to be covered by the meaning of ‘consignment’ as per the provisions contained in Section 83 of the Railways Act, 1989. (15.11) But if the Railways had exercised its right over the consignment covered by the ‘Railway Receipt’ by putting the consignee to notice before delivering such consignment to the effect that it was reserving its right to recover the same from such consignment, only then the Railways would have continued to exercise its lien over the consignment by virtue of demand made on the consignee because as per the provisions of section 74 of the Railways Act, the consignee or the endorsee also takes the liabilities of the consignor. (15.12) The second point of determination No.(b) is answered in the negative and against the appellant by holding that in the present case in hand, the money found refundable to the consignee cannot be adjusted against the claim for outstanding freight payable by a consignor in exercise of right of lien over consignment by invoking section 83 of the Railways Act, 1989. (15.13) In view of the discussions above, except for the decision on issue No.6 as mentioned in paragraph 14.6 above, the order passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati, in Claim Application No. 456/2001 is found sustainable on facts and in law, although for reasons different from one arrived at by the learned Railway Claims Tribunal as indicated above. Hence, the third point of determination No.(c) is also answered in the affirmative and against the appellant by holding that the impugned judgment and order is sustainable on facts and in law. 16. Accordingly, this appeal stands dismissed. In terms of the judgment and order impugned herein, the respondent is found to be entitled to the full claim of refund amounting to Rs.60,915/- together with interest @ 7.5% per annum till realization. The appeal stands dismissed with cost. Counsel’s fee for this appeal is assessed at Rs.5,000/-.The interim order passed earlier in connection with M.C. No. 172/12 arising out of this MFA 224/10 shall stand vacated. 17. Return back the LCR. 18. This court reiterates the observation made by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati that the order would not prejudice the right of the appellant herein to recover the outstanding dues from M/s. Daurala Sugar Works as per law.