JUDGMENT : Heard Mr. D.K. Dey, learned counsel for the appellant as well as Mr. H.P. Barman, learned counsel appearing for the respondent. 2. By filing this appeal under Section 23 of the Railway Claims Tribunal Act, 1987, the appellant has challenged the judgement and order dated 05.08.2010 passed by the learned Claims Tribunal, Guwahati Bench, Guwahati in Application No. 495/07(M-21/04). 3. At the outset it would be relevant to record that this appeal was admitted by order dated 27.05.2009 and since then the Registry of this Court has issuing continuous reminders for requisition the records of the claim case from the learned Railway Claims Tribunal, Guwahati Bench, Guwahati. As the record had not been received, this Court by taking a stern note of the non-compliance of the orders, by the order dated 20.01.2017, directed the Additional Registrar of the Railway Claims Tribunal, Guwahati Bench, Guwahati to appear personally before this Court and to show cause for non-compliance of the orders. The said authority had appeared before this Court and by filing an affidavit submitted that the records were destroyed either by termites/insects or it was destroyed by flood water. On this ground, this Court had caused an inspection to be made by appointing an Advocate as Commissioner for carrying out local inspection to know about the condition of the Railway Claims Tribunal, Guwahati Bench, Guwahati and the Commissioner’s report showed a very bad condition of the court building. Accordingly, this Court issued a notice to the General Manager, N.F. Railway on the matter and now an affidavit has been filed by the General Manager, N.F. Railway, indicating that steps are being taken for maintenance of the RCT building and as the building is more than 60 years old, they are replacing the building with new RCC framed building which was being proposed in PWP 2016-17, but the work was not approved. But the same work was again proposed in PWP 2017-18 and the amount sanctioned for new RCT building is Rs.81.00 lakh and the work is under progress with a target date of completion on 15.08.2018. This aspect is being separately dealt with. This narration has been given only for the purpose of showing that the trial court’s records are not available in this case and they are destroying. 4. The fact in the present case is a short one. This aspect is being separately dealt with. This narration has been given only for the purpose of showing that the trial court’s records are not available in this case and they are destroying. 4. The fact in the present case is a short one. The respondent herein booked a consignment of rice on the basis of a Railway Receipt (R/R) which was issued on “said to contain” basis. On receipt of the goods at the delivery station, as per the assessment delivery report, 9 bags of rice out of 777 bags were delivered in cut, torn and loose condition and weight was found to be 203 Kgs. instead of 675 Kgs. so the shortage was assessed at 997 Kgs. The respondent made a claim in respect of said shortage @ Rs.9 per Kg. The learned Railway Claims Tribunal assessed the value of the rice at Rs. 8 per Kg. and held that the claimant was entitled to Rs.9796/- as the value of consignment, plus a sum of Rs.347/- towards proportionate application fee and Rs.500/- as lump sum Advocate fees. 5. As per the judgment dated 05.02.2008, the learned Tribunal recorded the submission made by the learned counsel for the respondent herein that a sum of Rs.3250/- was paid during the pendency of the claim application. The learned Tribunal held it to be part payment and by applying the ratio of the judgment of the case of Union of India and another vs. M/s. Gangaram Bhagwandas, AIR 1977 MP 2015 allowed deduction of the said amount and therefore, the balance compensation of Rs.5573/- was ordered to be paid. This order is in challenge in the present appeal. 6. The learned counsel for the appellant has produced a letter purported to be a letter dated 31.08.2004, purportedly by which the payment of Rs.3250/- was given to the respondent. It is submitted that the payment of the amount being made before the claim application was filed on 11.10.2004, this payment could not be considered to be a part payment. But it was a payment without any protest and therefore the present claim was maintainable in view of the case of Union of India and Ors. It is submitted that the payment of the amount being made before the claim application was filed on 11.10.2004, this payment could not be considered to be a part payment. But it was a payment without any protest and therefore the present claim was maintainable in view of the case of Union of India and Ors. vs. Jain Enterprises and Ors., reported in 2009 (1) GLT 124, wherein this Court by taking note of the protest and considering the date of cheque and encashment, held that the conduct of the respondent did not amount to acceptance of condition offered and therefore, held that the learned Tribunal had rightly passed the judgment. 7. The learned counsel for the appellant by referring to the said citation has argued that in the present case in hand, it was the duty of the respondent to show that they have lodged a protest before encashing the cheque and the said burden having not been proved, the present appeal is deserved to be allowed. It is further submitted in the case of Union of India (supra), this Court had dissented from the ratio of the case of Gangaram Bhagwandas (supra) and, as such, the impugned order is liable to be interfered with. 8. It is projected that it was the burden of the Railway to prove that the intention of the respondent herein was to accept the cheque in full and final settlement of its claim and in this regard, the Apex Court had relied on the case of Gangaram Bhagwandas (supra). 9. Per-contra, the learned counsel for the respondent has stated that it is a matter of record in form of the submissions made before the learned Tribunal that the respondent had informed the learned Tribunal about the receipt of the claim during the pendency of the claim petition and, as such, the burden of proving the contrary had shifted on the appellant. The learned counsel for the respondent has referred to the paragraph 16 of the case of Bhagwati Prasad Pawan Kumar vs. Union of India, (2006) 5 SCC 311 and by referring to Section 8 of the Contract Act, he has submitted that if the payments are made before the institution of the case then the question of protest by the manner of acceptance of proposal can be gone into, but in view of the finding recorded in paragraph 16 of the said case where the Hon’ble Apex Court has relied on the case of Gangaram Bhagwandas (supra), the decision of this Court in Union of India & Ors. (supra) has to be held per incurium. The relevant paragraph 16 is quoted below:- “16. In Union of India and another vs. M/s. Gangaram Bhagwandas, the respondent had filed a suit on January 6, 1970 claiming by way of damages a sum of Rs.504.58 ps. on account of goods being damaged due to negligence and misconduct on the part of the Railways and its employees. While the suit was pending a cheque for Rs.283.05 was sent under cover of a letter dated March 6, 1970 which stated that the amount was being sent in full and final settlement of the claim. The respondent encashed the chque. The High Court on facts found that there was no denying the fact that the plaintiff did not accept the cheque in full satisfaction. It had not passed a receipt in full satisfaction, nor did it send a receipt to the Railways acknowledging receipt of the amount. On the contrary, even after receiving the cheque the respondent prosecuted the suit for the balance of the amount. The Railway had led no evidence to show that the intention of the plaintiff was to accept the cheque in full and final settlement of its claim. On this finding, relying upon the principle laid down in Day vs. Mciea it was held that : "The question was thus primarily one of fact and since the defendant did not choose to lead any evidence on the point nor are there such circumstances brought on the record to lead to the conclusion that the cheque was accepted in discharge of the whole debt, I am unable to come to the conclusion that the acceptance of the cheque amounted to satisfaction of the whole claim." 10. It is submitted that as the payment was made during the pendency of the case, it was not obligation on part of the respondent to submit a protest and therefore, there is no infirmity in the order passed by the learned Tribunal. 11. Having heard the argument advanced by both sides. I have perused the material available on record. In the present case in hand, it is seen that the learned Tribunal has recorded the submission made by the learned counsel for the respondent admitting payment of Rs.3250/- during the pendency of the claim application. The learned Tribunal has also recorded that the payment in the present case had become a part payment and by applying the ratio of case of Gangaram Bhagwandas (supra), the respondent had prayed for the balance amount. The learned Tribunal further recorded the submission made by the learned counsel for the appellant that the amount of Rs.3250/- was paid to the respondent herein as full and final settlement through cheque which was encashed. The finding of the learned Tribunal is as follows: “From the perusal of the record, it is crystal clear that the respondent did not submit any document which could prove that the applicant accepted the cheque amount in full satisfaction. Even after receiving the cheque amount, the applicant prosecuted the claim application for the balance amount. So this inference goes against the respondent. The authority titled (supra) referred by Ld. Counsel for the applicant is applicable from all corners in the present case. Hence, application for balance amount is maintainable.” 12. Therefore, it is evident that the burden of proving the acceptance of cheque in full and final satisfaction was shifted on the appellant. 13. This Court in the case of Union of India & Ors. (supra), had referred to the case of Gangaram Bhagwandas (supra), as well as the judgment of the Hon’ble Apex Court in Bhagwati Prasad Pawan Kumar (supra). As this Court finds that in the previous decision of Union of India & Ors. (supra), the entire aspects have already been gone into. It would be appropriate to quote relevant paragraphs No. 12 to 18. “12. For better appreciation, Section 8 of the Indian Contract Act, 1872 is reproduced below : "8. As this Court finds that in the previous decision of Union of India & Ors. (supra), the entire aspects have already been gone into. It would be appropriate to quote relevant paragraphs No. 12 to 18. “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. 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. 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. 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. 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. 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. 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. 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 of his 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.” 14. In the present case in hand, notwithstanding that the trial court’s records cannot be reconstructed, from the impugned order, it is apparent that there is no record of any protest by the respondent before encashing the cheque. This Court is inclined to take notice of the covering letter by which normally a payment order is made. In a format of the letter by which payments order are issued, the same is found to an intimation that the cheque/pay order should be encashed if it is acceptable towards full and final settlement of the claim and if such amount is not acceptable, the cheque/pay order should be returned along with the objection, if any, and it contains such specific advise that if the cheque/pay order is encashed, it would be deemed that the same was accepted as full and final settlement of the claim and no further claim whatsoever shall be entertained. A copy of such format was produced by the learned counsel for the appellant. 15. From the above, it is apparent that the Railways authority had normally issued the aforesaid covering letter together with the cheque/pay order to the claimant. Therefore, it must be assumed that letter in the usual format has been issued in the present case to the respondent. The objection or protest by the respondent has not been produced before the learned Tribunal nor has the copy of the same been filed in the present appeal. This Court is bound by the ratio of the case of Union of India and Ors. (supra), and therefore, the contrary view cannot be take in the present case in hand. There is nothing on record to show that the respondent had filed any protest. This Court is of the opinion that an offeree before encashment of the cheque must lodged a protest by a positive action even where the cheque is received by the offeree during the pendency of the proceedings before the learned Tribunal. As this Court is bound by the observation made by this Court in paragraph 18 of the case of Union of India & Ors. As this Court is bound by the observation made by this Court in paragraph 18 of the case of Union of India & Ors. (supra), this Court is of the view that the impugned judgment passed by the learned Railway Claims Tribunal, directing payment of further compensation cannot be sustained. This Court finds in the case of Bhagwati Prasad Pawan Kumar (supra), the Hon’ble Apex Court has held in paragraph 19 to 21 is as follows: “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 disclose 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. 20. Coming to the facts of this case if the appellant, before encashing the cheques, had sent the communication dated August 20, 1993, it could perhaps be argued that by retaining but not encashing the cheques, it did not intend to accept the offer made in the letter of the Railways dated April 7, 1993. At the same time if the evidence disclosed that it encashed the cheques and later sent a protest, it must be held that it had accepted the offer unconditionally by conveying its acceptance by the mode prescribed, namely by retaining and encashing the cheques, without reservation. Its subsequent change of mind and consequent protest did not matter. 21. In the instant case there is neither pleadings nor evidence on record as to the date on which the cheques were received and the date on which the same were sent for encashment. Its subsequent change of mind and consequent protest did not matter. 21. In the instant case there is neither pleadings nor evidence on record as to the date on which the cheques were received and the date on which the same were sent for encashment. It is, therefore, not possible to record a categoric finding as to whether the letters of protest were written after encashing the cheques or before encashing the cheques. It was for the appellant to plead and prove that it had not accepted the offer and had called upon the Railways to pay the balance amount. This it must have done before encashing the cheques. If the appellant encashed the cheques and then wrote letters of protest to the Railways, it cannot be held that it had not accepted the offer by conduct, because at the time when it sent the cheques for encashment, it had not conveyed its protest to the offerer. In the absence of any pleading or evidence to establish that the encashment of the cheques was subsequent to the protest letters by the appellant, it is not possible to hold that by encashing the cheques the appellant had not adopted the mode of acceptance prescribed in the letters of the Railways dated April 7, 1993. In the absence of such evidence it must be held that by encashing the cheques received from the Railways, the appellant accepted the offer by adopting the mode of acceptance prescribed in the offer of the Railways.” 16. Therefore, by applying the ratio of the said case of Bhagwati Prasad Pawan Kumar (supra), this Court is inclined to hold that it was the duty of the respondent to plead and prove that it had not accepted the offer and had called upon the Railway to pay the balance amount. The Hon’ble Apex Court has categorically held in paragraph 21 of the case of Bhagwati Prasad Pawan Kumar (supra), that a protest of not accepted must be done before enchasing the cheque. Therefore, this Court is of the view that the case of Bhagwati Prasad Pawan Kumar (supra), which is cited by the learned counsel for the respondent, does not help him. 17. In view of the binding precedent of previous decision of the case of Union of India & Ors. Therefore, this Court is of the view that the case of Bhagwati Prasad Pawan Kumar (supra), which is cited by the learned counsel for the respondent, does not help him. 17. In view of the binding precedent of previous decision of the case of Union of India & Ors. (supra), this Court is of the view that the impugned judgment dated 05.02.2008 passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati is not sustainable. The respondent has not protested before encashment of the cheque, as such, it has to be held that such payment was received without any protest as full and final payment of the claim and the burden disproving the same cannot be shifted on the appellant. Accordingly, this appeal stands allowed and the impugned judgment dated 05.08.2010 passed by the learned Claims Tribunal, Guwahati Bench, Guwahati in Application No. 495/07(M-21/04) is set aside. 18. The parties are left to bear their own cost.