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Gauhati High Court · body

2017 DIGILAW 955 (GAU)

Lal Mohan Bharali v. Indian Oil Corporation Ltd.

2017-07-20

ACHINTYA MALLA BUJOR BARUA

body2017
JUDGMENT : Heard Mr. I.H. Saikia, learned counsel for the petitioner. Also heard Mr. S.N. Sarma, learned counsel for the respondent. 2. The petitioner due to his past experience and service rendered to the respondent IOCL was appointed/engaged as an agent for settlement of claims pending with NF Railway authorities on account of partial shortage in transit/missing tank wagons. The said engagement was made by letter dated 08.03.2011 of the respondent IOCL under the signature of its DGL (Zonal Service). The letter of 08.03.2011 provides that due to his past experience and services rendered, the petitioner was engaged as an agent for settling the railway claims on commission basis as per the terms and conditions contained therein. 3. The first condition is that the petitioner will deal and follow-up with claims lodged by the respondent IOCL on account of compensation for partial shortage and refund of excess freight that may have been made by the respondent IOCL, which are pending with the NF Railway authorities. It is provided that the petitioner will obtain payment towards settlement of such pending claims through account paying cheque/documents of adjustment with Railway outstanding dues if any duly issued in favour of the IOCL Ltd. The second condition is that the petitioner will arrange to trace out cases of Missing Tank Wagons from various locations and obtain relevant decantation/interception certificates and other documents and that the intimation for the Missing Tank Wagons will be handed over to the petitioner by the IOCL authorities every month. The third condition is that for short receipt cases, the petitioner will be paid commission @ 8.5% of the settled amount and the commission shall be paid on realization of at least 90% of the original claim amounts. As regards the Missing Tank Wagons, the petitioner will be paid 1,000/- for tracing each tank wagon and the payment will be paid only after submitting the certificate of traced tank wagon and acceptance thereof by the corporation. A further condition is that, as per Condition-5 of the terms and condition, the petitioner will have to provide case wise status of all cases every month for reviewing of their the performance. 4. It was provided that the term of engagement of the said letter was for a period of 2 (two) years. A further condition is that, as per Condition-5 of the terms and condition, the petitioner will have to provide case wise status of all cases every month for reviewing of their the performance. 4. It was provided that the term of engagement of the said letter was for a period of 2 (two) years. During the currency of the aforesaid engagement, the respondent IOCL was required to recover certain amount from NF Railway authorities, which was because of certain double payments made by them in respect of placing of rack for transporting petroleum products. It is stated by the respondent IOCL authorities that for the purpose of placing the concerned rack, the IOCL authorities were required to deposit an amount of Rs.52,16,039/-. Initially, the IOCL had paid the said amount of Rs.52,16,039/- through online payment method. Subsequently, the railway authorities communicated the IOCL that such online had not been received by them. Accordingly, the IOCL authorities made a subsequent payment of the same amount through a bank draft which was duly received by the railway authorities. But later on, it was learnt that the online payment was also received by the N.F. Railway authorities and hence, there was a double payment of the amount of Rs.52,16,039/-. 5. It is the stand of the respondent IOCL that the aforesaid is not a case of excess payment, but on the other hand, it is a case of double payment due to the aforesaid intervening circumstance that had taken place. Accordingly, the IOCL authorities by an application for claim for refund dated 25.04.2011 had claimed the aforesaid double payment of the amount of Rs.52,16,039/-. In this respect, the respondent IOCL had annexed certain communication which is annexed as Annexure-R2 to their affidavit-in-opposition dated 17.09.2012. 6. On perusal of R2 series of the communication, it is noticed that the concerned IOCL authority had been directly dealing with the NF Railway authorities regarding refund of the payment of 52,16,039/-, which had been paid twice by the IOCL authorities. In the said communication, there is no indication that the petitioner was involved in any manner for realizing the aforesaid amount from the NF Railway authorities. 7. In the said communication, there is no indication that the petitioner was involved in any manner for realizing the aforesaid amount from the NF Railway authorities. 7. In the aforesaid background, the petitioner prefers this writ petition for a direction that in terms of the letter dated 08.03.2011, the petitioner be paid his commission @ 8.5% of the claim amount, which according to the petitioner amounts to Rs.4,00,786/-. In this respect, the petitioner relies upon a letter dated 13.09.2011 of the petitioner, which is addressed to the respondent IOCL, wherein, it is stated that the petitioner is pleased to forward an adjustment letter No. PNO/TA/FGO/256/62/IOC dated 13.09.2011 for Rs.47,15,139/- as issued by the authorities of the NF Railway. By the said letter, the petitioner has also annexed a bill for a commission for the aforesaid amount of Rs.4,00,786/- along with the detailed particulars duly signed by him. The petitioner also relies upon the contents of the minutes of the meeting held in the chamber of the CM(SP) dated 07.03.2012 of the respondent Indian Oil Corporation. In the said minutes, which was signed by the CM(SP) along with the petitioner as well as one S.K Roy, it has been provided that recently two major claims had been settled at Maligaon amounting to Rs.52,16,039.00 and Rs.31,28,875.00. It was stated that these cases were adequately followed up by the Guwahati based Agent, being the petitioner and the bills for realization of the said claim has been submitted by the agent. 8. Accordingly, it was provided that the agent be released an amount of Rs.4,00,787/- immediately. Although the minutes contained the claim of the petitioner for the commission with regard to an amount of Rs.31,28,875/-, it is stated by the parties that the said amount had been duly paid by the respondent authorities and the claim as regard the said amount is not a subject matter of this writ petition. On the other hand, it is the case of the petitioner that the claim of Rs.4,00,787/- for realizing the amount of Rs.52,16,039.00 had not been paid by the respondent IOCL. 9. Apart from the minutes of the meeting dated 07.03.2012 and the letter dated 13.09.2011, no further materials has been produced by the petitioner indicating that the petitioner had duly engaged himself in realizing the aforesaid amount of Rs.52,16,039/-. 9. Apart from the minutes of the meeting dated 07.03.2012 and the letter dated 13.09.2011, no further materials has been produced by the petitioner indicating that the petitioner had duly engaged himself in realizing the aforesaid amount of Rs.52,16,039/-. The claim of the petitioner for the said compensation has been dealt with by the respondent IOCL in paragraph-7 of the affidavit-in-opposition dated 17.09.2012. In paragraph-7, it has been stated that getting the refund of the amount of Rs.52,16,039/- was not achieved at the instance of the writ petitioner, but the same vigorously pursued by the Accounts Department as well as other officials of respondent IOCL. It has been further stated that as per the work order dated 08.03.2011, the petitioner was required to follow up the matter and inform the respondent company about the developments of the claim and unless the said steps are taken by the petitioner no commission is payable. It had been further been stated that as per the work order, the writ petitioner was entitled for commission specifically mentioned in paragraph-3 of the work order dated 08.03.2011, which was accepted by him without any objection. It is the specific case of the respondent IOCL that the refund involved in the present case was only for a double payment, which had been made by the respondent IOCL for placing of certain railway rack. According to the respondent IOCL, as per the engagement letter dated 08.03.2011, the petitioner is not entitled to the aforesaid amount of Rs.4,00,786/-. Further the respondent authorities in paragraph-6 of the affidavit-in-opposition, by referring to the Annexure-R2 series communication states that it was the concerned officers of the respondent IOCL who were directly dealing with the railway authorities for refund of the aforesaid amount of Rs.52,16,039/-. In reply to the averments of paragraph-6 of the affidavit-in-opposition, the writ petitioner denies that the officers of the IOCL pursued the matter with the railway authorities for recovery of the amount and further stated that Annexure-R2 series of letters were issued at the instance of the writ petitioner. 10. Apart from the said statement, nothing further had been stated that the petitioner was actually involved in the process of obtaining the refund. 10. Apart from the said statement, nothing further had been stated that the petitioner was actually involved in the process of obtaining the refund. With regard to the averments of paragraph-7 in the affidavit-in-opposition of the IOCL, the writ petitioner in Paragraph-7 of the affidavit-in-reply again vehemently denies the contents thereof and accordingly, quotes the content of the letter dated 08.03.2011. Thereafter, it is stated that in view of the concerned condition of the work order, the authorities in the IOCL are duty bound to pay the commission for settlement of the claim of the petitioner. It is stated that the authorities all along paid the commission payable to the writ petitioner for various claims for refund of freight charges and therefore, in the instant case also, the respondents are required to pay the claim for refund of freight, which was made twice due to the negligence of the authorities. 11. Upon giving a due consideration to the aforesaid stand of the respective parties as presented orally as well as in their pleadings and also accompanying annexures thereto, it is noticed that it is the specific case of the respondent IOCL that the present claim being a claim for freight charges, which were paid twice by the IOCL, the same is not covered by the terms of engagement of the letter dated 08.03.2011. According to the IOCL authorities the engagement letter dated 08.03.2011 was only with respect to partial shortage in delivery and refund of any excess freight that may have been paid for such partial shortage. The instant case is a case where the same amount was paid twice because of certain intervening circumstance and therefore, is not a case of any excess freight being paid for partial shortage in delivery and on the other hand, it is a case where freight was paid twice because the railway authorities at some point of time was of the view that they had not received the online payment which was already made. 12. From the reply of the writ petitioner in paragraph-7, it is noticed that the said stand of the IOCL had not been controverted in the required manner. Further a reading of the letter dated 08.03.2011 also indicates that the engagement was for refund of excess freight already paid for partial shortage in delivery, which are pending before the railway authorities. 13. Further a reading of the letter dated 08.03.2011 also indicates that the engagement was for refund of excess freight already paid for partial shortage in delivery, which are pending before the railway authorities. 13. It is also noticed that there is a substantial difference in the duties to be performed for obtaining refund of excess freight in a case of partial shortage in delivery and that of obtaining a refund where the freight charges were paid twice. In case of obtaining refund of excess freight in a case of shortage of delivery, the actual shortage would have to be proved and established by the person making the claim and hence there may be a necessity of engaging an agent. But in case of double payment, the same would be based on records and hence requirement of an agent to obtain the refund of the excess payment may not be there. 14. In such view of the matter, this Court is of the view that the claim of the writ petitioner made in the instant case for the commission for obtaining the refund of Rs.52,16,039/- would have to be substantiated by specific material to indicate that the writ petitioner by his own effort had obtained the refund. 15. It is also noticed that apart from the letter dated 13.09.2011, which is annexed as Annexure-II Page-35 to the writ petition and the minutes dated 07.03.2012 which is annexed as Annexure-15 page 42 to the writ petition, no further materials has been produced by the petitioner to substantiate that the petitioner had pursued the matter with the railway authorities for obtaining the refund. It is also noticed that the minutes of the meeting dated 07.03.2012 states that the bill for realizing the claim had been submitted by the petitioner, but Annexure-7 of the letter dated 25.04.2011 indicates that the same was directly submitted by the IOCL authorities and not by the writ petitioner. Further it is also noticed that although as per the letter of engagement dated 08.03.2011, the petitioner was required to provide case wise status of cases every month for reviewing the performance, but no such document has been produced by the petitioner pursuant to the said requirement of the engagement letter of 08.03.2011, which would indicate that the petitioner had provided any status of the present claim to the respondent authorities every month. The absence of such case wise status is also a indication that the petitioner had failed to substantiate that he had pursued the claim with the railway authorities for refund of the amount of Rs.52,16,039/-. In view of the above, this writ petition is devoid of any merit and is accordingly dismissed.