1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.242 OF 2003 Ashok Sahakari Sakhar Karkhana Limited., Ashoknagar, Tal. Shrirampur, Dist. Ahmednagar. ...PETITIONER (Original Plaintiff) VERSUS Union of India, Owing & represented by the Central Railway Administration (Summons to be served by R.P.A.D. on the General Manager, Central Railway Bombay V.T. ...RESPONDENT (Original Defendant) ... Mr.S.D.Kulkarni, Advocate, for the petitioner. Mr. S.M.Kulkarni, Advocate for the respondent. ... CORAM: K.U. CHANDIWAL, J. DATE :4th Feb.,2010 *** PER COURT : 1. Heard. The return of plaint being Special Civil Suit No.25/1992, on the file of learned Civil Judge, Senior Division, Shrirampur, 2 by the learned Judge, by order dt.18.2.1995, and confirmation of the same by the learned Additional District Judge, Shrirampur, in Miscellaneous Civil Appeal No.92/1995, dt. 19.7.2002, is questioned by the plaintiff Ashok Sahakari Sakhar Karkhana Ltd., Ashoknagar ( for short "ASSK."). 2. In order to stress his submissions, Mr.S.D.Kulkarni, Counsel for the original plaintiff ASSK, has taken recourse to judgment of this Court (Coram: N.V.Dabholkar, J.) dt. 19.6.20803 in Civil Revision Application No. 1035/1995 between the same parties. According to Mr.Kulkarni, the issue in respect of jurisdiction was earlier agitated by Union of India and this Court has held that the Civil Court has jurisdiction to entertain the suit. 3. In paragraph No.2 of the said order, this Court referred that Special Civil Suit No.65/1993 was filed by ASSK Ltd. seeking a decree for Rs. 56,434/- with costs and future interest against the defendants (Union of India). It was observed that such claim gave rise as claim of Railways was in contravention to the agreement dt. 23.5.1961. No such eventuality centres in present proceedings. 4. Now, reverting to the prayers in the 3 present case, it is apparent, the plaintiff states - " The ASSK prays that the letter and Bills calling upon ASSK to pay maintenance charge bills may be declared to be illegal and ineffective beyond the scope of RRT's - Madras order dated 30/8/82 as well as the siding Agreement dated 23.5.1961." Taking into consideration this prayer and the pleadings in the plaint. The plaintiff was raising objection about maintenance charge bills issued by Railways which, according to it, was beyond scope of R.R.T. Madras order dt. 30.8.1982. 5. In the plaint paragraph no.4 plaintiff contemplated that the defendant took unilateral decision to increase maintenance charges which is in breach of the conditions mentioned in clause No.9(2)(b) of the agreement. It is further contended that, ASSK observed that Railways charge excessive maintenance charges. In paragraph No.6, it is stated that the amount of Rs.20,164.95 was unreasonable levy of maintenance charges which were reduced by R.R.T. but, R.R.T., by its letter and order dt.23rd April 1982, has held that maintenance charges should be near about the actual expenses incurred. The demand of the bill for Rs.77,040.64 was not in 4 accordance with the guidelines incorporated in the R.R.T. judgment, was canvassed by the plaintiff before the learned Judge. 6. The controversy revolved to recovery of payment of maintenance charges towards the service charges while the plaintiff, by virtue of the reliefs, indicated here-in-above, restricted the same on remittance of Court fees for Rs. 26,000/-. This aspect seeking jurisdiction, is not explained anywhere in the plaint or during the course of submissions. 7. The powers of fixation of rate in the light of Section 36 of the Railways Act are with the Tribunal and the amount if recovered in excess can be refunded to the parties, if it is so satisfied. The terminology in the agreement entered by the plaintiff with the Railway Administration, demonstrates that the powers vest in the Railways to recover the charges and to what extent. Considering these aspects, it cannot be said that both the Courts erred in rejecting the contention of the plaintiff about ouster of the Civil Court's jurisdiction. 8. The first appellate Court had the opportunity to refer to the judgment in the matter of Jaipur Udyog Ltd. Vs. Union of India ( A.I.R. 1975 S.C. 1056). The observations are 5 as under: "Appellant had taken siding line connecting their factory with the main railway line. They filed a complaint before the Railway Rates Tribunal against the Railway administration for unreasonable charges levied by the Administration. The tribunal reduced the charges but on the revision revoked its earlier order. Held that in the circumstances of the case, the order of revocation of the previous order was the only choice left to the Tribunal. The order was proper and it was not necessary to remand the matter back to the Tribunal. " 9. The first appellate Court rightly found that the relief sought by the plaintiff will be within the bracket of Section 33 of the Railways Act. Any complaint against the Railway Administration about the charges or levy of unreasonable charges can be set forth in terms of Section 37 of the Railways Act. 10. The provisions of Section 43 of the Railways Act, 1989, expressly bars jurisdiction of the Court in respect of the matters in which the Tribunal is empowered to deal with or decide in terms of Chapter VII thereof. Since plaintiff had agreement dt.25.6.1961, the plaintiff was bound to pay towards maintenance charges and necessary repairs, as was agreed upon. 6 11. The filing of the suit and the prayers here-in-above reflected, necessarily oust the jurisdiction of the Civil Court. Both the Courts were justified in directing return of the plaint. No interference. The correctness in the order is writ large. Civil Revision Application is dismissed. Rule discharged. [K.U. CHANDIWAL, J.] agp/242-03cra