1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.143 OF 1992. J.H. Gokuldas Brothers Company, Jalgaon. .. PETITIONER. VERSUS The Union of India and ors. .. RESPONDENTS. ... Shri A.S. Bajaj, Advocate for Petitioner. Shri S.L. Kulkarni, Advocate for R.No.2 (absent). ... CORAM : S.S. SHINDE,J. RESERVED ON: 07.01.2010. PRONOUNCED ON: 08.01.2010. PER COURT: 1. This petition takes exception to the order dated 15th March, 1991 passed by the Railway Claims Tribunal Nagpur Bench in Claim Case No. 50/OA-1/RCT/NCP/90. 2. The brief facts of the case are as under: 2 The petitioner herein filed an application before the Railway Claims Tribunal, Nagpur Bench, under Section 16 of the Railway Claims Tribunal Act against the respondents. The petitioner alleged that they had booked coal in four wagons Ex-Chirimiri to Amalner and Pachora vice invoice No.P-1 R/R No.34288. Booking date was 5.4.1984 and actual date of loading was 2.4.1984. The wagons were bearing Nos.SC 61091, WR 71412, SE 90579 and SR 33778. The coal was dispatched in four wagons out of which coal of two wagons bearing Nos.SE 61091 and WR 71412 containing 57.600 and 55.500 M.Tonnes was not delivered to the petitioner. The value of the shortage was shown as Rs.57,000/-. 3. The petitioner further alleged that the petitioner had served notices under Section 78-B of the Railways Act on 27.6.1984, 2.7.1984 and 2.8.1984 to the Chief Claims Superintendent, Western Railway Zone and Chief Claims Superintendent, Central Railway Zone at Bombay Churchgate and Bombay V.T., Respectively. The Central Railway Zone had acknowledged the receipt 3 of notice on 21.8.1984 vide file No.CER/PC/BSL/789/85 and Western Railway Zone on 19.3.1986 vide letter No.CL/COAL/2506/84. The petitioner further alleged that as per the demand of the respondents for the settlement of the claim, documents were supplied by post. The petitioner had to issue various letters to the respondents to pay the claim amount, and the respondents vide letter dated 9.10.1987 had acknowledged the liability to pay the claim amount. 4. The case of the petitioner is that as the respondents were neglecting to pay the claim amount, the petitioner issued a notice under Section 80 of the Code of Civil Procedure to the respondents on 9.3.1989. The copy of the notice and acknowledgment receipt were also filed. The firm registration certificate of the partnership firm was also filed along with the application. It is alleged that the said consignments were to be delivered at Amalner. However, before the arrival of the wagons at Bhusaval, the petitioner had moved the Divisional Railway Manager, Central 4 Zone, Bhusaval to divert two wagons to Pachora railway station. The Divisional Railway Manager after scrutinizing the railway receipt, senders bill, xerox copies of permits, was pleased to order to divert two wagons of coal to Pachora on 6.4.1984. These wagons were not arrived at Pachora or the delivery of the steam coal was not given to M/s Mansinka Industries Limited. The petitioner learnt that the goods were consumed by Chalisgaon Loco Shed. The petitioner had already paid the price for the said coal to the consignor Western Coal Fields Limited as per the weight mentioned in the railway receipts. 5. It is the case of the petitioner that therefore, the petitioner had claimed Rs.57,000/- for the said short delivery of coal. 6. The petitioner alleged that on 9.10.1987 the respondent No.2 acknowledged the conditional liability for payment, hence the application was filed within three years from 9.10.1987 i.e. within the prescribed period of limitation. The petitioner had also stated that the railway 5 authorities indulged into correspondence and went on asking for certain documents etc. and also sent inspector for verification of the claim and as such due to this, the cause of action got extended from time to time. The petitioner however, prayed for condonation of delay, if any, caused in filing the claim petition. 7. The respondents appeared in the matter and contested the claim of the petitioner on merits as well as on the point of limitation. 8. The Railway Claims Tribunal took up the point of limitation as preliminary issue and has decided the said issue against the petitioner and as such, dismissed the application of the petitioner for claim of compensation vide its order dated 15.3.1991. 9. Being aggrieved by the impugned order dated 15.3.1991, the petitioner has filed this writ petition. 10. The learned Counsel for the petitioner 6 submitted that the learned Tribunal has not at all considered that the respondents are the agencies of Union of India and when the said agencies go on continuing correspondence for settling of the claim, the period required for such negotiations has to be excluded while considering the limitation. The Government cannot be given advantage of such tactics to defeat the legal and rightful claims of the citizens. It is further submitted that assuming without admitting that there was delay in filing the claim, sufficient cause was shown to condone the delay. It is further submitted that the letter written by the railways dated 9th October, 1987 amounts to acknowledgment and also gives fresh limitation for filing the claim. It is further submitted that the tribunal has taken a technical approach in the matter and has not at all adhered to the principles of natural justice. It is further submitted that the tribunal committed an error in deciding the matter basically on the preliminary point of limitation without deciding the petition on merits. 7 11. The learned Counsel for the petitioner placed reliance on the reported judgment of the Apex Court in the case of N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123 to contend that the words “sufficient cause” under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. The learned Counsel also invited my attention to the provisions of Section 17 of the Railway Claims Tribunal Act, 1987 and submitted that sub-section (2) of the said section enables the tribunal to entertain the claim even after the period specified under sub-section (1) of the said section, if sufficient cause is shown for not making the application for claim within specified period. Therefore, the learned Counsel for the petitioner invited my attention to the pleadings in the petition, grounds taken therein and annexures thereto and submitted that the writ petition may be allowed. 12. Though the respondents are served, none appears for the respondents when the matter is taken up for final hearing. 8 13. I have heard the learned Counsel for the petitioner at length, also perused the pleadings in the petition, grounds taken therein and I am of the considered view that the petitioner failed to show sufficient cause before the tribunal and has not properly explained the delay caused in filing the application for claim. The provisions of section 17 of the Railway Claims Tribunal Act, 1987 reads, thus: “17. Limitation.- (1) The Claims Tribunal shall not admit an application for any claim- (a) under sub-clause (i) of Cl.(a) of sub-section (1) of Sec. 13 unless the application is made within three years from the date on which the goods in question were entrusted to the railway administration for carriage by railway; (b) under sub-clause (ii) of Cl. (a) of sub-section (1) or, as the case may be, sub-section (1-A) of Sec.13 unless the application is made within one year of occurrence of the accident; 9 (c) under Cl.(b) of sub-section (1) of Sec. 13 unless the application is made within three years from the date on which the fare or freight is paid to the railway administration: Provided that no application for any claim referred to in sub-clause (i) of Cl. (a) of sub-section (1) of Sec. 13 shall be preferred to the Claims Tribunal until the expiration of three months next after the date on which the intimation of the claim has been preferred under Sec.78-B of the Railways Act. (2) Notwithstanding anything contained in sub-section (1) an application may be entertained after the period specified in sub-section (1) if the applicant satisfies the Claims Tribunal that he had sufficient cause for not making the application within such period.” 14. Perusal of the provisions of sub-section (1) of Section 17 of the said Act would show that the application has to be filed within three years from the date on which the goods in question were entrusted to the railway administration for carriage by railway. In the instant case, as per the pleadings in the petition, the goods were 10 entrusted to the railway administration for carriage by railway on 5th April, 1984. Therefore, as per the provisions of sub-section (1) of section 17 of the said Act, the Limitation to file application for claim was available to the petitioner till 4th April, 1987. Admittedly, the petitioner has filed the application on 26th March, 1990. The application filed by the petitioner is beyond the period of limitation as prescribed under sub-section (1) of Section 17 of the said Act. 15. It is true that the words “sufficient cause” under Section 5 of the Limitation Act should receive liberal construction so as to advance substantial justice. In the instant case, the petitioner herein issued notices to the respondents about the consignments on 27.6.1984, 2.7.1984 and 2.8.1984. Thereafter, on 9.10.1987 the petitioner received letter from the railway authority. On perusal of the para 2 of the petition, it appears that the petitioner received the letter dated 9.10.1987 from the respondents. Nothing has been stated in the petition as to 11 what steps were taken by the petitioner during the period from 9th October, 1987 till 9th March, 1989 and, therefore, there is no explanation offered by the petitioner for this period of 16 months and 9 days. Therefore, the aforesaid period remains unexplained by the petitioner. After all, sufficient cause is to be shown or demonstrated by the petitioner. Since the aforesaid period remains unexplained by the petitioner, in my considered view, the tribunal has rightly rejected the prayer of the petitioner for condonation of delay caused in filing the application for claim. From perusal of the impugned judgment and order, I do not think that it calls for any interference by this Court. 16. Hence, the petition is devoid of any merits and it stands dismissed. Rule stands discharged. [ S.S. SHINDE, J ] ... PLK/*