1 fa512-97-j. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO.512 OF 1997 Union of India, ] represented by the General Manager ] .. Appellant of Central Railways, C.S.T., ] (Orig. Respondent) Bombay – 400 001. ] V/s. Metropolitan Traders Pvt. Ltd. ] R.P.L. House, 3rd Floor, ] .. Respondent 15, Walchand Hirachand Marg, ] (Orig. Applicant) Mumbai – 400 038. ] ..... Mr. A. N. Samant for the appellant. None for the respondent. ..... CORAM : A. S. OKA, J. DATE : MARCH 21, 2011. ORAL JUDGMENT :- Heard the learned counsel appearing for the appellant. None appears for the respondent. The appellant-Union of India through the General Manager of Central Railways has taken an exception to 2 fa512-97-j. the judgment and order dated 31st January, 1997 passed by the Railway Claims Tribunal. 2. The case of the respondent is that the consignment containing bags of cement was entrusted to Railways on 5th June, 1994. At the time of delivery, it was found that the consignment was damaged by rain water. The valuation of the damaged cement was approximately Rs.37,900/-. After service of notice under Section 106 of the Railways Act, a claim was filed. One of the main defence of the appellant was that a cheque in the sum of Rs.23,862/- was sent to the respondent in full and final settlement of the claim and as the said cheque was accepted, no amount is due and payable by the appellant. The Tribunal did not accept the said defence and proceeded to pass an order directing the appellant to pay a sum of Rs.13,038/- to the respondent with interest at the rate of Rs.12% per annum from the date of filing of the claim application. 3. After having heard the learned counsel appearing for the appellant, I find no merit in the Appeal except the rate of interest awarded by the Tribunal. The fact that the appellant remitted a sum 3 fa512-97-j. of Rs.23,862/- by a cheque to the respondent itself suggests that the appellant has accepted that the consignment was damaged. It was necessary for the appellant to lead evidence to show that aforesaid amount was accepted by the respondent in full and final settlement of the claim of the respondent. The case of the respondent was that the said amount was accepted under protest towards part of its claim. The Tribunal held that no evidence was adduced by the appellant to prove that the respondent accepted the amount in full and final settlement. Thus, the impugned order has been passed only in respect of the balance amount of Rs.14,038/-. Considering the fact that substantial amount of Rs.23,862/- was paid by the appellant, the tribunal has committed an error by awarding interest at the rate of Rs.12% per annum. The interest deserves to be fixed at the rate of 6% per annum. Hence, Appeal is disposed of by passing the following order: :: O R D E R :: i. The impugned Judgment and Order dated 31st January, 1997 is modified to the extent that interest payable on the sum of Rs.14,038/- will be at 4 fa512-97-j. the rate of 6% per annum from the date of filing of the application instead of 12% per annum. ii. Rests of the impugned order is confirmed. iii. Appeal is partly allowed with no order as to costs. iv. As far as withdrawal and/or disbursement of the amount deposited in this Court with interest accrued is concerned, Registrar Judicial-I will pass appropriate order for withdrawal after hearing the parties. JUDGE