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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 280 of 1997
Appellant : Union of India, owning South Central
Railway, represented by General
Manager, South Central Railway,
Secunderabad, AP
ig versus
Respondent : M/s Larsen & Toubro Limited,
Awarpur Cement Works, Awarpur,
District Chandrapur
Mr P.S. Lambat, Advocate for appellant
None appears for respondent.
Coram : A.P. Bhangale, J
Dated : 16th December 2009
Judgment
1. By this appeal appellant Union of India prays
for quashing and setting aside of the order dated
31.1.1997 passed by the Railway Claims Tribunal, Nagpur
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Bench, Nagpur in Claim Application No. 13/OA-
III/RCT/NGP/96 whereby the Tribunal ordered refund of
excess amount charged from the applicant in the sum of Rs.
1,81,245/- along with interest at the rate of 9% per annum
from the date of claim application till the date of order
and future interest at the rate of 6% per annum from the
date of order till realisation of amount with
proportionate costs.
2. The Union of India has challenged the order on
the ground that the Tribunal committed error of law in not
taking into consideration the Rationalization Scheme in
force. It is further contended that the Tribunal has
committed an error in interpreting rule 125 (i) (h) of the
Goods Tariff Part-I, Volume-I which is applicable in case
of Rationalization Scheme.
3. In support of the appeal, it is contended that
once the consignments are booked and charged, according to
the Rationalization Scheme laid down by the Government of
India, it is immaterial how the rakes were actually
transported and there is no case for refund of any amount
as no excess freight had been collected. It is contended
that the only responsibility of the appellant is to send
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goods at the destination and the applicant-consignor had
no right to ask how the goods are sent when at the time of
booking it was a contract that goods will be booked as per
rationalization scheme and the freight will be charged
accordingly. According to learned counsel for the
appellant, whether the freights given in rationalization
scheme are correct or not, is the only question which the
Tribunal had to decide and, therefore, according to
learned counsel for the appellant, the Tribunal committed
error to question as to whether the goods were sent by
longer route or shorter route. Learned counsel for the
appellant further submitted that the Tribunal should have
observed as to whether appellant has charged the rates as
per the Rationalization Scheme in force at that time and
there was no question as to how the goods were sent. In
substance, it is the contention of learned counsel for
appellant that the Railway Administration was entitled to
charge as per the Scheme although, in fact, the Railway
had sent the good or transported the goods by shorter
route. It is contended that in view of Section 71 of the
Indian Railways Act, it is for the Central Government, if
it is necessary in public interest, to direct any railway
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administration to carry any goods or class of goods by
such route or routes and at such rates and, therefore, the
claimant/consignor was bound to pay the freight as per
rationalization scheme as he has agreed to pay the freight
accordingly as per the forwarding note filled in by the
claimant/applicant. Thus, it is contended that the
Tribunal exceeded its jurisdiction to order refund.
4. I have perused the impugned order. It appears
that the learned Tribunal
ig did consider the statutory
provisions of Sections 71 and 87 of the Railways Act
before arriving at the conclusion and recording impugned
finding. The conclusion drawn by the Tribunal that it
would not be fair, just or proper to charge freight on
account of the operational convenience via longer route
and then carry the traffic via shorter route. This
conclusion is consistent with rule of equity which we
find in Section 72 of the Indian Contract Act, known as
doctrine against unjust enrichment. Section 72 of the
Contract Act reads thus –
“72. Liability of person to whom money is paid,
or thing delivered by mistake or under coercion.
A person to whom money has been paid, or
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5anything delivered, by mistake or under
coercion, must repay or return it.”
Thus, bearing in mind the rule of equity underlying the
above statutory provision of Section 72 of the Contract
Act, the contentions raised on behalf of the appellant
cannot be accepted as it would not be just and proper to
reverse the findings recorded by the Tribunal which are
based on proper appreciation of legal and equitable
principles. Railway
ig Administration cannot be made an
exception to the principle of equity. It cannot charge
more than what was just and reasonable and unduly enrich
itself. I do not find any perversity in the impugned
order.
13. In the result, appeal is dismissed.
A.P. BHANGALE, J
hsj
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