JUDGMENT : 1. Heard Mrs. U. Chakraborty, the learned Special Senior counsel appointed by the Railways and Ms. M. Sharma, the learned counsel appearing on behalf of the Respondent. 2. This is an appeal under Section 23 of the Railway Claim Tribunal Act, 1987 challenging the order dated 13.09.2011 passed by the Railway Claims Tribunal at Guwahati Bench, Guwahati in Claim Application No. OA.I-15/2009 (Old), OA-I/GHY/2009/0015 (New) thereby allowing the claim of the Respondent/Applicant to the tune of Rs.5,39,398/- along with interest @ 6% per annum from the date of the order. Further to that it was also ordered that the Appellant shall make the payment within 90 days from the date of the said order failing which the amount shall carry interest @ 12% per annum till realization. The Railway Claims Tribunal further directed the Appellant herein to pay proportionate cost of the Application Fee of Rs.5163/- and Legal Practitioner’s Fee of Rs.3000/-. 3. The facts of the instant case in brief is that the Respondent herein as applicant booked a consignment on 25.08.2006 from CGS (Changsari) to DMR (Dharma Nagar) vide Invoice No.01/RR No.364245 of katta wheat. However, in the destination 53,664 Kgs of wheat were delivered short by the Respondent Railways to the Applicant. Notice was issued under Section 106 by the Applicant to the Respondent Railway and thereupon the claim application was filed before the Railway Claims Tribunal, Guwahati Bench claiming an amount of Rs.6,43,968/-. The said amount was calculated @ Rs.1200/- per quintal. 4. The Respondent Railways filed their written statement raising certain objections that the applicant had no cause of action and right to sue as the application was not verified by proper person having authority, that the application filed by Gautam Paul, M. Director without putting his signature in the verification column of the application was not maintainable. In paragraph No.5 of the written statement it was mentioned that the consignment was booked by sender at forwarding station under remarks in the Railway receipt “said to contain, wagon originally booked from GHS to CGS invoice No.1/401729 dated 19.08.2006 subsequently rebooked to DMR vide CCO/MLG’s No.C/63/L/2/DMR/08/P/06(R-B) dated 21/23.08.2006 with original load and seal of 19.08.2006 contents booked under two legs scheme first legs GHS to CGS and second legs Ex.RNY to MOGA. It was further mentioned in the Railway Receipt that the wagons not checked at CGS by Railway staff, no claim will be entertained against shortage and damage to the consignment, Re-weighment at enroute W/B at destination, OR, SWA”. Further to that it has been mentioned that the consignment was booked with the remarks in the Railway Receipt “said to contain, wagon not checked at CGS by Railway staff, no claim will be entertained against shortage and damage to the consignment”, for which the Respondent Railway were not liable for any compensation. It was mentioned that the subject consignment was booked and loaded at owner’s risk under Section 97 of the Railways Act, 1989 and as such the Railways were not liable to pay any compensation. 5. On the basis of the pleadings, as many as 5 issues were framed which were as under : (i) Whether notice served under Section 106 of the Railways Act, 1989 by the Applicant to the Respondent is in time and maintainable ? (ii) Whether the Applicant holds legal title for the claim as applied for ? (iii) Whether the Respondent proves that they have delivered the entire consignment to the Applicant at the destination ? (iv) Whether the Applicant proves that they have received the consignment short at the destination ? (v) Relief or order ? 6. From the impugned judgment, it appears that the Applicant who is the Respondent herein exhibited various documents which were : Exhibit –A1 Copy of Notice dated 10.02.2007 under Section 106 Exhibit –A2 Copy of the Railway Acknowledgement letter dated 27.02.2007 Exhibit –A3 to A6 Xerox copies of True copy of Delivery Book Exhibit –A7 Mutual agreement between the parties regarding the quantum of shortage. Exhibit –A8 Copy of judgment passed by Circuit Bench of RCT/GB in OA No.213/2007 on 12.11.2010. 7. However, the Railway did not file any documents. At this stage, it may be relevant herein to mention that on a perusal of the records which have been send to this Court, it is strange to note that though in the judgment impugned in the instant proceedings, there is a mention of Exhibit-A7 which is the mutual agreement between the parties regarding the quantum of shortage but the said document is not available on record. It is relevant herein to mention that on a specific query being made to the learned counsel for the Applicant, as to whether the said document is available with the applicant, it has been candidly submitted that the Applicant/Respondent herein is not in possession of the mutual agreement between the parties regarding the quantum of shortage which have been purportedly exhibited as Exhibit-A7. 8. The Railway Claims Tribunal decided the said claim proceedings issue wise. The Issue No.1 related to the notice served under Section 106 of the Railways Act, 1989. The Tribunal below held that the said notice was served to the Railway Respondent on time and therefore the claim proceedings were maintainable. As regards the Issue No.2 as to whether the Applicant/Respondent herein held legal title for the claim as applied for, it was observed by the Tribunal below that the Applicant/Respondent herein had the legal title for the claim as applied for. The Issue Nos. 3 and 4 which were of vital relevance and related as to whether the Applicant/Respondent herein was able to prove that they had delivered the entire consignment to the Applicant at the destination and as to whether the Applicant/Respondent herein proved that they have received the consignment short at the destination, the Tribunal below after taking into consideration the provisions of Rule 1579 and Rule 1580 of the IRCM Manual Volume-II of 1991 came to a finding that if there is any transhipment, it is the duty of the Respondent to produce all the documents relating to transhipment, but in the instant case the Respondent Railway had failed to produce any document or evidence to show that the transhipment was done in a proper manner at the transhipment point or to show that the earlier wagon had arrived in good condition with intact seals. Under such circumstances, the Tribunal came to a finding that the Respondent has not proved that there was shortage at the time of loading and in view of non-filing of any of the documents and evidence to prove that the transhipment has been done in proper and correct manner as defined by the Act, the Respondent were held to be liable for the shortage. 9. 9. It was further opined that as the Respondent Railway has not submitted the Transit Report, Seal and Card Labels, in absence of which it cannot be conclusively proved by the Respondent Railway that the wagons were received in SRI condition and also the Respondent Railway failed to prove that the shortage of the consignment was not due to negligence on the part of the Railways during transit. The Tribunal observed in its order that during the final hearing, both the parties mutually accepted 50364 Kgs as the quantum of shortage and on the basis thereof, Issue No.5 was decided and the Applicant was awarded an amount of Rs.5,39,398/-as the compensation alongwith the interest @ 6% per annum from the date of the order through Bank Account. Further to that, it was directed that if the Respondent Railway failed to make the payment within 90 days from the date of this order, the said amount shall carry interest @ 12% till realization. Apart from that, the Respondent Railways were also directed to pay the proportionate cost of Application Fee Rs.5163/-and Legal Practitioner’s Fee Rs.3,000/-. 10. At this stage, it may be relevant herein to mention that pursuant to the said judgment and order passed by the Railway Claims Tribunal an application was filed on 23.12.2011 seeking review of the judgment and order dated 13.09.2011. In the said application, it was mentioned that certain new facts had come to light upon discovery of a copy of communication dated 21.08.2006 and a certified copy of the Railway Receipt duly certified by the Chief Goods Supervisor, Dharma Nagar, N. F. Railway. It was stated that from the communication dated 21.08.2006, it would transpire that the Applicant who is the Respondent herein had written a letter to the Respondent Railway with a request to rebook the subject consignment to DMR to meet the urgent market demand. In the said letter, the Applicant has given a written undertaking that they will not claim any shortage or damage to the consignment. Further to that, it was mentioned that it was in response to the said request made in the communication dated 21.08.2006 by the Applicant, the consignment was directed to be rebooked vide message dated 24.08.2006 issued by the Chief Claim Officer, Maligaon and the same was directed to be rebooked to DMR vide Invoice No.1/R.R. No.A/364245 dated 25.08.2006. Further to that, it was mentioned that it was in response to the said request made in the communication dated 21.08.2006 by the Applicant, the consignment was directed to be rebooked vide message dated 24.08.2006 issued by the Chief Claim Officer, Maligaon and the same was directed to be rebooked to DMR vide Invoice No.1/R.R. No.A/364245 dated 25.08.2006. It is also relevant herein to mention that there was an application for condoning the delay in filing the review application as there was a delay of 54 days. 11. The Railway Claims Tribunal vide an order dated 07.03.2012 rejected the said application on merit as well as on the question of limitation. On merit, it was stated that the Respondent Railway failed to reflect what kind of fraud was committed by the Applicant or anyone else in as much as from the perusal of the record of OA shows that no way any fraud was committed by the Applicant that the Applicant has himself given the undertaking that the Applicant would not claim any compensation against any shortage. Further to that, the Respondent Railway also failed to produce (1) RR, (2) Original letter of the Applicant where there was some commitment from the Applicant at the contest stage. As regards the delay, the Tribunal observed that the Respondent has failed to explain the delay for which the said application was rejected. It is under such circumstances that the instant appeal was filed under Section 23 of the Railway Claims Tribunal Act, 1987 challenging the original judgment and order as well as the order passed in the review application. 12. I have heard the learned counsel for the parties and perused the materials on record. From a perusal of the claim application, it shows that the apart from the application, Vakalatnama and the Demand Draft, a copy of notice dated 10.02.2007, a copy of the shortage/damage certificate dated 20.01.2007 and copy of the Acknowledgement letter dated 27.02.2007 was attached alongwith the claim application. There is no other document which would have shown as to how many bags of katta wheat were loaded by the Applicant. Even the Railway Receipt, a copy of which is given to the Applicant at the time of loading was also not enclosed to the claim proceedings. There is no other document which would have shown as to how many bags of katta wheat were loaded by the Applicant. Even the Railway Receipt, a copy of which is given to the Applicant at the time of loading was also not enclosed to the claim proceedings. The Railway Claims Tribunal while deciding the application had relied upon Rule 1579 and Rule 1580 in IRCM Manual Volume-II of 1991 but for applying the said Rules, it was then also necessary that the Applicant who was the consignee should prove that the Railway Receipt and also shows that the proviso to Section 65 was not applicable. The Tribunal below did not at all take into consideration the said aspect of the matter. The entire decision of the Tribunal below to hold that there was a shortage of 50364 Kgs was based upon some purported mutual agreement between the parties. It appears from the contents of the impugned order that the Exhibit-A7 is the mutual agreement between the parties regarding the quantum of shortage. However, surprisingly the said document is not a part of the record. As the said documents were produced by the Applicant during the course of the Railway Claims Tribunal proceedings, this Court made a specific query upon the learned counsel appearing on behalf of the Respondent who was the Applicant in the claim proceedings as regards the existence of Exhibit-A7. However, the learned counsel appearing on behalf of the Applicant/Respondent herein submits that the Applicant is not in possession of the said Exhibit-A7. Taking into consideration that the Court below had decided the entire claim proceedings on the basis of a document which does not exist or for that matter is not a part of the records, this Court has no other option but to set aside the judgment and order dated 13.09.2011 passed in OA.I-15/2009 (Old), OA-I/GHY/2009/0015 (New). 13. In view of the setting aside of the said judgment and order dated 13.09.2011 the challenge to the order dated 07.03.2012 passed in the Review Application No.36/2011 has become redundant. 14. In view of the above observations, the instant appeal stands allowed. 15. The Registry is directed to return the LCR to the Tribunal below.