{"id":11014,"date":"1973-03-30T00:00:00","date_gmt":"1973-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-ms-modi-industries-ltd-on-30-march-1973"},"modified":"2017-04-18T12:27:29","modified_gmt":"2017-04-18T06:57:29","slug":"union-of-india-vs-ms-modi-industries-ltd-on-30-march-1973","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-ms-modi-industries-ltd-on-30-march-1973","title":{"rendered":"Union Of India vs M\/S. Modi Industries Ltd on 30 March, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India vs M\/S. Modi Industries Ltd on 30 March, 1973<\/div>\n
Equivalent citations: 1973 AIR 1281, \t\t 1973 SCR (3) 835<\/div>\n
Author: A Grover<\/div>\n
Bench: Grover, A.N.<\/div>\n
           PETITIONER:\nUNION OF INDIA\n\n\tVs.\n\nRESPONDENT:\nM\/S.  MODI INDUSTRIES LTD.\n\nDATE OF JUDGMENT30\/03\/1973\n\nBENCH:\nGROVER, A.N.\nBENCH:\nGROVER, A.N.\nMATHEW, KUTTYIL KURIEN\n\nCITATION:\n 1973 AIR 1281\t\t  1973 SCR  (3) 835\n 1973 SCC  (1) 781\n\n\nACT:\nIndian Railways Act, 1890 Ss. 26 and 41-Complaint in respect\nof past dues cannot be made under s. 41 before Railway Rates\nTribunal--In such cages. v. 26 of Act is not a bar to a suit\nin civil court and question of reasonableness of charges can\nbe gone into by civil court.\n\n\n\nHEADNOTE:\nBy  agreement dated July 4, 1933 the respondent company\t was\nliable to pay charges for a railway siding at agreed  rates.\nClause\t23 of the agreement laid down that it shall be\topen\nto the Railway Administration on giving six months notice of\nsum  intent, to revise the said charges.. Clause 24  related\nto  termination of the agreement in the event of  nonpayment\nof dues within one month of demand., On March 26, 1949\tthe-\nrailway\t authorities informed the respondent that the  rates\nwere  proposed\tto be increased with effect  from  April  1,\n1949.\tThe  respondent objected\" to the increase  as  being\nagainst clause 23 of the agreement.  By a subsequent  letter\nin September 1951 the Divisional Superintendent of the Rail-\nway  asked the respondent to pay the charges at much  higher\nrates.\t There\twas  prolonged\tcorrespondence\tbetween\t the\nparties\t without the respondent agreeing to pay\t the  higher\nrates  demanded.   On September 29,  1955  the.\t  Divisional\nEngineer  addressed  a letter to  the  respondent  proposing\nrevision  of  the siding charges with effect from  April  1,\n1956  after the expiry of six months according to clause  23\nof the agreement.  These proposed'. charges were much  lower\nthan  the charges demanded by the earlier letters..  On\t May\n17, 1957 the General Manager of the Railway sent a letter to\nthe  plaintiff for payment of Rs. 93,981-8-0 in\t respect  of\nthe  period  December  1  1949 to March\t 31,  1956.  it\t was\nintimated  that on failure to make the said  payment  within\none  month the supply of wagons would be stopped' and  steps\nto determine the agreement would be taken., In May 1957\t the\nrespondent served a notice under s. 80 of the Code of  Civil\nProcedure  and'\t thereafter filed a suit.  The\ttrial  court\npartly\tdecreed\t the suit.  The High, Court  decreed  it  in\ntoto.  In the appeal by certificate to this Court, filed' on\nbehalf\tof the Union of India, the questions that  fell\t for\nconsideration  were  :\t(i)  whether  the  civil  court\t had\njurisdiction  in  view\tof  Ss. 26 and'\t 41  of\t the  Indian\nRailways Act, 1890, to determine the reasonableness; of\t the\ncharges-,  (ii)\t whether  the  courts  below  if  they\t had\njurisdiction  were  justified in holding the charges  to  be\nunreasonable.\nDismissing the appeal,\nHELD  :\t (i) From the facts it appeared that the  rates\t are\nbeing revised and actually enhanced, but then the matter was\nkept  pending and there was exchange of\t correspondence\t and\ndiscussion between the parties from time to time.  No effort\nwas  made to enforce the demand made in the various  letters\nand the plaintiff was allowed to make payments according  to\nthe  rates originally agreed.  It was only in May 1957\tthat\nthe respondent was really threatened to make payment of\t the\noutstanding  amount calculated at the revised rates on\tpain\nof  the\t supply of wagons being stopped\t and  the  agreement\nbeing determined.\nAccording to the decisions of this Court it was hardly\topen\nto the respondent to file a complaint under s. 41 of the Act\nwith regard to the.\n836\nReasonableness\tor otherwise of the rates and charges  which\nhad  already 'become due and payable.  The plaintiff had  no\ngrievance  whatsoever with :regard to the charges which\t had\nbeen fixed with effect from April 1, 1956.  By means of\t the\nletter dated September 29, 1955, and therefore there was  no\nquestion  of its filings, a complaint with regard to  those\ncharges.   Its\tgrievance was confined only  to\t the  amount\nwhich  was  being  demanded  on the  basis  of\tthe  revised\nenhanced rates between the period December 1, 1949 and March\n1,  1956.  If that amount bad actually been realised by\t the\nrailway authorities the plaintiff could only file a suit for\nits  refund and could not have laid a complaint under s.  41\nof  the\t Act before the Railway Tribunal.   By\tanalogy\t the\nplaintiff  could not have filed a complaint with regard\t to\nthe  past dues as the Railway Tribunal could not have  given\nany  relief in respect thereof 'following the law laid\tdown\nby this ,Court.\t In this view of the matter apart from other\nquestions  involving  the  validity  of\t clause\t 23  of\t the\nagreement  as also of the notice or intimation of  rates  on\nthe  ground on noncompliance with its terms the suit  ,could\nnot  be\t held barred under s. 26 of the Act  and  the  civil\ncourt could grant the relief claimed. [842H-843P]\nUnion  of  India  v. The  Indian  Sugar\t Mills\tAssociation,\nCalcutta,<\/a>  [1967]  3 S.C.R. 219, Raichand  Amulakh  Shah  v.\nUnion  of  India,<\/a> [1964] 5 S.C.R. 148 and Upper\t Doab  Sugar\nMills  Ltd.  v. Shahdara (Delhi)  Saharanpur  Light  Railway\nCompany Ltd.,<\/a> [1963] 2 S.C.R. 333 at p. 342, referred to.\n(ii) There was no serious infirmity in the reasoning of\t the\nHigh  Court by which it arrived at the conclusion  that\t the\nquestion  of reasonableness of the charges, keeping in\tmind\nthe  'facts  of\t this case, was justiciable.   Nor  bad\t any\njustification  been  shown  'for  reopening  the  concurrent\nfinding\t of the two Courts below that the rates\t which\twere\ndemanded for the period in question were unreasonable.\t The\nsuit was thus rightly decreed. [843E]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1616  of
\n1967.\n<\/p>\n
Appeal\tby certificate from the judgment and order dated  ‘-
\nSeptember  30,\t1966 of the Allahabad High  Court  in  First
\nAppeal -No. 198 of 1960.\n<\/p>\n
Gobind Das and B. D. Sharma, for the appellant.
\nC. B. Agarwala, Uma Mehta, S. K. Bagga, Swreshta Bagga and
\nRam Arora, for the respondent.\n<\/p>\n
The Judgment of the Court was delivered by
\nGROVER,\t J.—This  is\tan  appeal  by\tcertificate  from  a
\njudgment ,of the Allahabad High Court in a suit filed by the
\nplaintiff-respondent   for   an\t  injunction   against\t the
\ndefendant-appellant  restraining it from realizing the\tsum,
\nof Rs. 93,981-8-0 on account of the alleged siding  charges
\nfor  the period December 1, 1949 to March 31, 1956 and\tfrom
\nstopping  the supply of wagons in the railway siding of\t the
\nplaintiff  and further from cancelling the agreement  ,dated
\nJuly 4, 1933 for the aforementioned reason.
\nThe  facts necessary for deciding the appeal may be  stated.
\nBy means of an agreement dated July 4, 1933 the\t plaintiff
\nentered\t into an agreement with the Secretary of  State\t for
\nIndia-in-Council  through  the agent of\t the  North  Western
\nRailway (now represented
\n837<\/span>
\nby the Union of India) whereby it was agreed that the former
\nshall  Jay a railway siding from Begamabad Station  Yard  of
\nthat  railway  for enabling the plaintiff to  carry  on\t its
\nbusiness  at its, premises.  Clause 13 of the agreement\t was
\nas follows :-\n<\/p>\n
\t      “Freight\tfor  all classes of  goods  will  be
\n\t      charged  upto  and  from\tBegumabad   Station.
\n\t      Railway Receipts and invoices shall be  issued
\n\t      to and from the station only and in accordance
\n\t      with the rates from time to time published  in
\n\t      the Goods Traffic Books of this Railway  Admi-
\n\t      nistration will make the following charges  in
\n\t      each  direction  from every  wagon  loaded  or
\n\t      empty  in\t or removed from the lines A  and  B
\n\t      mentioned in clause 15 below
\n\t      (1) Per 4 wheeled wagon Re. One.\n<\/p><\/blockquote>\n
\t      (2) Per 6 wheeled wagon Re. One and annas
\n\t\t\t eight
\n\t\t    (3) Per 8 wheeled wagon Re. two.”
\n\t      Clause 23 of the agreement provided
\n\t      “Notwithstanding\tanything  laid down  in\t the
\n\t      foregoing clauses of this Agreement, it  shall
\n\t      be  open\tto  the\t Railway  Administration  on
\n\t      giving  six months notice of such\t intent,  to
\n\t      revise the charges laid down in clauses 8, 12,
\n\t      13 and 19 of this Agreement”.\n<\/p><\/blockquote>\n
Clause\t24  related to termination of the agreement  in\t the
\nevent of non payment of dues within one month of demand.  On
\nMarch  26,  1949 the Divisional Superintendent of  the\tE.P.
\nRailway (successor in interest of the North Western Railway)
\ninformed  the plaintiff that the rates were proposed  to  be
\nincreased  with\t effect from April 1,  1949,  the  increased
\ncharges being mentioned in that letter.\t As this  intimation
\nwas  not in accordance with clause 23 of the  agreement\t the
\nplaintiff   refused  to\t agree\tto  the\t  increase.    Other
\nobjections  were ‘also raised, one of the  objections  being
\nthat   the   charges   were   excessive.    The\t  Divisional
\nSuperintendent\taddressed  another letter on  May  18,\t1949
\ninforming  the plaintiff that with effect from\tDecember  1,
\n1949  the charges mentioned therein would be made.   A\tgood
\ndeal   of   correspondence  and\t discussions   between\t the
\nrepresentatives of the plaintiff and the railway authorities
\ntook  place  and  by  a\t letter\t dated\tJuly  20,  1951\t the
\nDivisional Superintendent intimated that the revised  siding
\ncharges\t in  force from December 1, 1949  were\tpurely\tpro-
\nvisional  and  were  subject  to  revision.   Meanwhile\t and
\nsubsequent to the above date the required tests were made to
\ndetermine  the\tcharges.  In September 1951  the  Divisional
\nSuperintendent\twrote  to  the\tplaintiff  that\t the  siding
\ncharges should be, paid with effect
\n838<\/span>
\nfrom December 1, 1949 to September 30, 1951 at the following
\nrates :-\n<\/p>\n
  (i) Per 4 wheeled wagon\t    Rs.\t    51-\n  (ii) Per 6 wheeled wagon\t    Rs.\t    7\/8\/-\n  (iii) Per 8 wheeled wagon\t    Rs.\t     10\/-\n<\/pre>\n
The   plaintiff\t protested  against  what  was\tcalled\t the
\nexorbitant nature of the charges and made it clear that\t the
\nletter\tof September 1951 did not comply with clause  23  of
\nthe  agreement and that the charges were  unreasonable\tand
\ncould  not  be\tlegitimately  made.   Another  letter  dated
\nOctober\t 26\/November  6,  1951 was sent\t by  the  Divisional
\nSuperintendent\tsaying that the siding charges to be  levied
\nwith effect from first October 1951 were being assessed\t and
\nwould be intimated to the plaintiff and meanwhile it  should
\n,continue  to  pay  the charges demanded in  the  letter  of
\nSeptember 1951 provisionally.  The Divisional Superintendent
\naddressed another letter dated November 27, 1951  explaining
\nthe  result of the test and the actual cost of the  shunting
\netc.   A  demand was made’ that the revised  siding  charges
\nshould\tbe paid from December 1949 to September 30, 1951  at
\nRs. 4\/- per 4 wheeler, Rs. 6\/per 6 wheeler and Rs. 8\/- per 8
\nwheeler.  The plaintiff, however. did not pay the  increased
\nrates  demanded.   On  September  29,  1955  the  Divisional
\nSuperintendent addressed a letter to the plaintiff proposing
\nrevision  of  the siding charges with effect from  April  1,
\n1956  after the expiry of six months according to clause  23
\nof  the\t ,agreement.   The  charges  as\t demanded  were\t  as
\nfollows:–\n<\/p>\n
     (i) 4 wheeled wagon Rs. 1 20\/-\n<\/p><\/blockquote>\n
     (ii) 6 wheeled wagon     Rs. 2 -10\/-\n     (iii) 8 wheeled wagon    Rs 3 501-\n<\/pre>\n
On  May 17, 1957 the General Manager of the Railway  sent  a
\nletter\tto the plaintiff for payment of the, amount  of\t Rs.
\n93,981-8-0  representing the difference between the  amounts
\ndue  from  December  1,\t 1949 to March\t31,  1956.   It\t was
\nintimated  that on failure to make the said  payment  within
\none month the supply of wagons would be stopped and steps to
\ndetermine  the\tagreement would be taken.  In May  1957\t the
\nplaintiff served a notice under s. 80 of the Civil Procedure
\nCode  to be defendant and ,.hereafter in October  1958\tthe
\nsuit out of which the appeal has arisen was filed.
\nOut of the issues framed by the trial court on the pleadings
\nof the parties the following need be mentioned
\n\t      (1)   “Whether  the enhancement of the  siding
\n\t      charges  by  the\tdefendant  is\tunjustified,
\n\t      exorbitant and illegal ?\n<\/p>\n
\t      8 39
\n\t      (2)   Whether the demand of Rs. 93,981-8-0  by
\n\t      the defendant is illegal ?\n<\/p>\n
\t      (3)   Whether the court has no jurisdiction to
\n\t      try the suit ?”\n<\/p>\n
On  issue.   No.  1 the trial court held  that\tthe  charges
\ndemanded were unjustified and exorbitant.  It was held\tthat
\nout  of\t the  demand of Rs. 93,981-8-0 the  demand  for\t Rs.
\n22,111-3-0  was\t illegal.  On issue No. 4  the\ttrial  court
\nexpressed the view that it had jurisdiction to try the\tsuit
\nin respect of that portion of the claim whereby the legality
\nof  the\t enhanced  siding charges  had\tbeen  challenged  on
\naccount of being in violation of clause 23 of the  agreement
\nbut it had no jurisdiction to try the suit in respect of the
\nsecond\tground whereby the enhanced siding charges had\tbeen
\nchallenged as unjustified and exorbitant.
\nThe  plaintiff appealed to the High Court and the  defendant
\nfiled cross objections.\t The High Court affirmed the finding
\nof the courts below that the enhancement made by the Railway
\nAdministration\twas highly unjustified and exorbitant.\t But
\nit  did\t not accept its finding about the  legality  of\t the
\nenhancement and also on the question of the jurisdiction  of
\nthe  civil  court.  The appeal was consequently\t allowed  in
\ntoto and the cross objections were dismissed.
\nThe  principal\tquestion which has been agitated  before  us
\nrelates to the jurisdiction of the civil court to  determine
\nthe  reasonableness of the charges.  A\tsubsidiary  question
\nhas  been  raised  that assuming the  civil  court  had\t the
\njurisdiction,  whether\tthe courts below were  justified  in
\nholding\t that  to  be  unreasonable.   For  the\t purpose  of
\ndetermining  the question of jurisdiction we shall  have  to
\nexamine the relevant provisions of the Indian Railways ,Act,
\n1890, hereinafter called the ‘Act’.  Section 3 contains\t the
\ndefinitions.  Clauses 11 and 13 defining the words “traffic”
\nand rates” are as follows –\n<\/p>\n
\t      “(11) “trafic” includes rolling stock of every
\n\t      description as well as passengers, animals and
\n\t      goods;\n<\/p><\/blockquote>\n
\t      (13) “rate” includes any fare, charge or other
\n\t      payment  for  the carriage of  any  passenger,
\n\t      animal or goods”;\n<\/p><\/blockquote>\n
Chapter V headed “traffic facilities” commences with S.\t 26.
\nAccording  to that section except as provided in the Act  no
\nsuit  shall be instituted or proceedings taken for  anything
\ndone  or any omission made by the Railway Administration  in
\nviolation or contravention of any provision of that Chapter.
\nSection\t  27   (1  )  places  a\t duty\ton   every   Railway
\nAdministration\tto afford all reasonable facilities for\t the
\nreceiving,  forwarding\tand delivering of traffic  upon\t and
\nfrom the several railways belonging to or worked
\n840<\/span>
\nby  it and for the return of the rolling stock.\t Section  29
\nis as follows :-\n<\/p>\n
\t      S.29  (1)\t “The  Central\tGovernment  may\t  by
\n\t      general  or  special  order  fix\tmaximum\t and
\n\t      minimum  rates for the whole or any part of  a
\n\t      railway and prescribe the conditions in  which
\n\t      such rates will apply.\n<\/p><\/blockquote>\n
\t      (2)   The\t Central Government, may, by a\tlike
\n\t      order, fix the rates of any other charges\t for
\n\t      the  whole  or  any  part\t of  a\trailway\t and
\n\t      prescribe\t the conditions in which such  rates
\n\t      of charges shall apply.\n<\/p><\/blockquote>\n
\t      (3)   Any\t   complaint\tthat\ta    railway
\n\t      administration   is  contravening\t any   order
\n\t      issued  by the Central Government\t under\tsub-
\n\t      section (1) shall be determined by the Central
\n\t      Government”..\n<\/p><\/blockquote>\n
Section 34 relates to the constitution of the Railway  Rates
\nTribunal for the purpose of discharging functions  specified
\nin Chapter V. Sections 39     and  40 give the\tjurisdiction
\nand powers of the Tribunal, Section 41\tto the extent it  is
\nmaterial may be reproduced :-\n<\/p>\n
\t      S.41 (1)\t “Any\tcomplaint  that\t a   railway
\n\t      administration-<\/p><\/blockquote>\n
\t      (a)   is contravening the provisions of s.  28
\n\t      or\n<\/p>\n
\t      (b)   is\tcharging  for the  carriage  of\t any
\n\t      commodity between two stations a rate which is
\n\t      unreasonable or\n<\/p>\n
\t      (c)   is\tlevying\t any other charge  which  is
\n\t      unreasonable,
\nmay  be, made to the Tribunal, and the Tribunal\t shall\thear
\nand  decide  any  such\tcomplaint  in  accordance  with\t the
\nprovisions of this Chapter”.\n<\/p>\n
\t      (
\n\t      2<\/span>
\n\t      )
\n\t       ……………………………………………
\n.\n<\/p>\n
\t      (3)   In the case of a complaint under  clause\n<\/p>\n
\t      (b)  or  clause  (c) of  subsection  (1),\t the
\n\t      Tribunal\tmay fix such rate or charge-  as  it
\n\t      considers reasonable :\n<\/p>\n
\t      Provided
\n\t      that …………………………………..\n<\/p>\n
\t      (4)……………………\t   ”\n<\/p>\n
on  behalf of the appellant the bar created by the s. 26  to
\nthe  jurisdiction of ordinary courts has been  invoked.\t  It
\nhas  been  argued that s. 29(2) postulates the\tfixation  of
\nrates  of  charges other than those contemplated  by  sub-s.
\n(1).\tIf   there  is\tany  grievance\tthat   the   railway
\nadministration is levying a charge which is unreasonable  it
\nwill be covered by S. 41 (1) (c) and there-\n<\/p>\n
841<\/span><\/p>\n
fore,\tonly  a\t complaint  can\t be  made  to  the   railway
\nadministration\tin  that matter.  The  jurisdiction  of\t the
\ncivil  court will be barred because  exclusive\tjurisdiction
\nhas  been  conferred  on  the  Railway\tRates  Tribunal\t for
\ndetermining whether the charge being levied is unreasonable.
\nAccording to the High Court Chapter V has nothing to do with
\ncharges\t which are payable under a contract.   The  validity
\nand interpretation of clause 23 of the agreement between the
\nparties\t was  a matter for the interpretation of  the  civil
\ncourt and could not possibly be barred by s. 26 of the\tAct.
\nSection\t 41  (1) (c) has no application\t to  an\t enhancement
\nalready made in the purported exercise of the right under  a
\ncontract.\n<\/p>\n
Now  section  26  only bars the institution  of\t a  suit  or
\nproceedings  for  anything  done or  any  omission  made  in
\nviolation  or contravention of any provision of\t Chapter  V.
\nSection\t 29(2)\tempowers the Central Government to  fix\t the
\nrates  of any other charges by a general or  special  order.
\nIn  view of the language of s. 41 (1) (c) if it\t is  assumed
\nthat  the  rates cannot be unreasonable and if\tthe  Central
\nGovernment  fixes unreasonable rates it may be\tpossible  to
\nsay  that there has been a contravention or violation of  s.
\n29(2).\tBut such fixation of rates under that provision\t has
\nto be by a general or special order.  It has been  suggested
\nthat  a\t communication\tmade under a  contract\tcannot\tfall
\nwithin the meaning of the word “order” as contemplated by s.\n<\/p>\n
29. Prima facie, there may be some difficulty in acceding to
\nthe contention of the learned counsel for the appellant that
\nany part of s. 29 will cover a revision of rates made by the
\nrailway\t authority  in terms of a contract  but\t the  matter
\nseems  to stand concluded by the decision of this  Court  in
\nUnion  of  India  v. The Indian\t Sugar\tMills-\tAssociation,
\nCalcutta<\/a>()  according  to which it is  immaterial  that\t the
\ncharges being levied by the railway administration arise  as
\na result of a voluntary agreement.  The real difficulties in
\nthe  way  of  the appellant are two fold;  firstly,  if\t any
\nquestion arises about the validity of a clause of a contract
\nthat  will be entertainable by a civil court.  As laid\tdown
\nin Raichand Amulakh Shah v. Union of India<\/a> (2) the  Railways
\nTribunal  has  no jurisdiction to decide whether  the  rules
\nempowering  the railway administration to levy a  particular
\ncharge are ultra vires or whether the railway administration
\ncollected  amounts  in excess of the charges  which  it\t can
\nlegally\t levy under a rule.  In Upper Doab Sugar Mills\tLtd.
\nv.  Shahadara  (Delhi)\tSaharanpur  Light  Railway   Company
\nLtd.<\/a>(,’) two main points arose; one was whether the  Railway
\n,Tribunal  had\tjurisdiction to entertain the  complaint  as
\nregards\t the  reasonableness  of  the  rates  prior  to\t the
\ninstitution of the complaint
\n(1) [1967] 3 S. C. R. 219.    (2) [1964] 5 S. C. R. 148.
\n(3) [1963] 2 S. C. R. 333 at p. 342.\n<\/p>\n
6-L797SupCT\/73
\n842<\/span>
\nand  the  other\t was whether it had  jurisdiction  to  grant
\nrefund\tfor the aforesaid period.  This is what was said  by
\nDas Gupta J.\n<\/p>\n
\t      “The words “charging” in cl. (b) and “levying”
\n\t      in  cl. (c) were used in the one and the\tsame
\n\t      sense.  We find it impossible to agree however
\n\t      that  they were used to include  “collecting”.
\n\t      It  appears to be clear that if the  intention
\n\t      of  the legislature was to give  the  Tribunal
\n\t      jurisdiction  over  complaints  in  connection
\n\t      with  charges  ,already made  the\t legislature
\n\t      would have used the words “has charged and  is
\n\t      charging”\t  and  would  not  merely  say\t “is
\n\t      charging”.   Special  jurisdiction of  such  a
\n\t      nature  would  be given clearly and  the\tvery
\n\t      fact  that  the words “has charged”  have\t not
\n\t      been  used is sufficient ground for  ,thinking
\n\t      that it was not the legislature’s intention to
\n\t      give the Tribunal jurisdiction over complaints
\n\t      in  connection with charges made in the  past.
\n\t      In our opinion, the words “is charging” in cl.\n<\/p><\/blockquote>\n
\t      (b)  and\t“is  levying” in  cl.  (c)  must  be
\n\t      construed to mean “is demanding a price at the
\n\t      present time for services to be rendered”.\n<\/p><\/blockquote>\n
Coming to the facts of the present case it is apparent\tthat
\none of the main questions involved was whether clause 23  of
\nthe  contract  between the parties was not void\t because  it
\ncontravened  s.\t 29  of the Indian  Contract  Act.   Another
\nquestion  which had to be investigated was whether a  proper
\nnotice regarding the enhancement of rates had been given  in
\naccordance  with the terms of the said agreement.  From\t the
\nfacts which have been stated it appears that the rates\twere
\nbeing revised and actually enhanced, but then the matter was
\nkept  pending and there Was exchange of\t correspondence\t and
\ndiscussion  between-  the  parties from time  to  time.\t  No
\neffort\twas made to enforce the demand made in\tthe  various
\nletters\t and  the  plaintiff was allowed  to  make  payments
\naccording  to the rates originally agreed.  It was  only  in
\nMay  1.957 that the plaintiff was really threatened to\tmake
\npayment of the outstanding amount calculated at the  revised
\nrates on pain of the supply of wagons being stopped and\t the
\nagreement being determined.  It is somewhat surprising\tthat
\nin  September  1955 the rates which were revised  were\tvery
\nmuch  less-than\t those\twhich were demanded  for  the  prior
\nperiod.\t The position thus remained in a flexible state\t and
\nthere  is  a  good deal of substance in\t the  submission  on
\nbehalf of the plaintiff-respondent that a complaint was\t not
\nfiled under S. 41 of the Act because the rates which  “,were
\nbeing  paid  and  actually accepted were  the  same  as\t the
\ncontractual  rates  and not the revised or  enhanced  rates.
\nAccording to the decisions of this Court referred to before,
\nit was hardly open to the plaintiff to file a complaint with
\nregard\tto the reasonableness or otherwise of the rates\t and
\ncharges which had already become due
\n843<\/span>
\nand payable.  The plaintiff had no grievance whatsoever with
\nregard to the charges which had been fixed with effect\tfrom
\nApril  1,  1956 by means of the letter dated  September\t 29,
\n1955  and  therefore there was no question of its  filing  a
\ncomplaint  with regard to those charges.  Its grievance\t was
\nconfined only to the amount which was being demanded on\t the
\nbasis  of  the revised ,enhanced rates\tbetween\t the  period
\nDecember  1,  1949 and March 1, 1956.  If  that\t amount\t had
\nactually  been\trealised  by  the  railway  authorities\t the
\nplaintiff  could only file a suit for its refund  and  could
\nnot have laid a complaint under s. 41 of the Act before\t the
\nRailway\t Tribunal.  By analogy the plaintiff could not\thave
\nfiled  a complaint with regard to past dues as\tthe  Railway
\nTribunal could not have given any relief in respect  thereof
\nfollowing the law laid down by this Court.  In this view  of
\nthe  matter  appart  from  other  questions  involving\t the
\nvalidity  of  clause  23 of the agreement ,as  also  of\t the
\nnotice\tor intimation of enhancement of rates on the  ground
\nof non-compliance with its terms the suit could not be\theld
\nbarred\tunder  S. 26 of the Act and the\t civil\tcourt  could
\ngrant the relief claimed.\n<\/p>\n
     We\t have  not been shown any serious infirmity  in\t the
\nreasoning  of  the  High Court by which it  arrived  at\t the
\nconclusion that the question   of  reasonableness   of\t the
\ncharges, keeping in mind the  facts   of  this\t case,\t was
\njusticiable.   Nor  has\t any justification  been  shown\t for
\nreopening  the\tconcurrent finding of the two  courts  below
\nthat  the rates which were demanded for the period in  ques-
\ntion were unreasonable.\t The suit was thus rightly decreed.
\nThe  appeal fails and it is dismissed; but we make no  order
\nas to costs.\n<\/p>\n
G.C.\t\t\t    Appeal dismissed.\n844<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India vs M\/S. Modi Industries Ltd on 30 March, 1973 Equivalent citations: 1973 AIR 1281, 1973 SCR (3) 835 Author: A Grover Bench: Grover, A.N. PETITIONER: UNION OF INDIA Vs. RESPONDENT: M\/S. MODI INDUSTRIES LTD. DATE OF JUDGMENT30\/03\/1973 BENCH: GROVER, A.N. BENCH: GROVER, A.N. MATHEW, KUTTYIL KURIEN CITATION: 1973 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-11014","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India vs M\/S. 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