1 fa900-90j. rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 900 OF 1990 Union of India, through the General Manager, Central Railway. .. Appellant V/s. Girish Trading Co., Bombay .. Respondent ..... Mr. A. N. Samant for the appellant. Mr. R. V. Govilkar for the respondent. ..... CORAM : A.S.OKA, J. DATE : AUGUST 3, 2011. ORAL JUDGMENT : Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondent. The challenge in this Appeal is to the Judgment and order dated 28th September, 1990 passed by the learned Member of the Railway Claims Tribunal. The respondent is the applicant. The respondent filed a claim against the appellant Railway for grant of compensation. The case made out by the respondent in the claim application was that under the Railway receipt dated 8th July, 1986 a consignment containing 248 bags of rice was booked from Jakhat to Wadi Bunder at Mumbai having approximate value Rs.99,200/-. According to the case of the respondent, the consignment was received for sale on commission for which the respondent had 2 fa900-90j. paid a sum of Rs.60,000/- to the consignor. The consignment was received at Wadi Bandar in a damaged condition. As per the Assessment Certificate dated 1st July 1986, two bags were found having shortage and 226 bags were damaged by water. Notice under Section 78(B) of the Railways Act, 1890 was served on 10th July, 1986. Claim of Rs.20,168/- was made therein on the basis of the Assessment Certificate. According to the case of the respondent, the appellant on flimsy grounds repudiated the claim on 4th August, 1986. According to the case of the respondent, the Chief Claims Officer of the Railways by letter dated 3rd August, 1989 informed the respondent not to file a suit as the Additional General Manager of Central Railway, on receiving statutory notice had ordered special investigation in the case. A reliance has been placed on letter dated 11th October, 1989 sent by the Chief Claims Officer of the appellant by which the claim was again repudiated. The respondent by letter dated 19th October, 1989 sought review of the case and suggested that a reference of the case be made to the Joint Legal Advisors, Ministry of Law, Bombay. The claim made by the respondent in the claim application was in the sum of Rs.21,185/-. A written statement was filed by the appellant denying the claim. The Tribunal framed various issues including a issue regarding bar of limitation. The Tribunal proceeded to allow the claim application by granting compensation of 3 fa900-90j. Rs.21,185/- with interest at the rate of Rs.12% per annum from the date of filing of claim petition till the realization. 2. The learned counsel appearing for the appellant submitted that the respondent did not adduce any legal evidence before the Railway Claims Tribunal. He submitted that though the Tribunal has purported to mark the documents produced by the respondent as Exhibits, the said documents were not proved in accordance with law. He submitted that the claim application was clearly barred by law of limitation. He submitted that the limitation cannot be extended on the basis of the correspondence made by the respondent. He submitted that it was a case of no evidence. The learned counsel appearing for the respondent supported the impugned judgment and order. The learned counsel appearing for the appellant submitted that in any case, the Tribunal could not have granted interest at the rate of 12% per annum and the interest will have to be reduced. 3. I have considered the submissions. I have perused the record. Perusal of the Roznama maintained by the Tribunal shows that the claim application was fixed for filing of an affidavit of evidence on 12th June, 1990. It appears that the respondent was relying upon the letter dated 3rd August, 1989 in support of the claim. The Roznama of 12th June, 1990 records that an 4 fa900-90j. application was filed by the respondent for production of relevant file. On 28th June, 1990, the appellant admitted letter dated 3rd August, 1989. Accordingly, the application made by the respondent on earlier date was not pressed. The Roznama dated 28th June, 1990 records that the respondent filed three affidavits and closed the evidence. On the next date i.e. on 10th June, 1990, the appellant filed affidavit dated 2nd April, 1990 of its officer and therefore, the case was adjourned for arguments. Roznama of the proceedings dated 5th September, 1990 records that the advocates for both the parties were present and documents produced by the appellant as well as the documents produced by respondent were marked as Exhibits. The Roznama dated 5th September, 1990 shows that none of the parties objected to marking of documents as exhibits. The exercise of marking the documents as exhibits was made in presence of both the parties and, therefore, it appears that the documents were marked as exhibits by consent. Therefore, the objection of the appellant that the documents are not proved cannot be sustained. 4. The first point canvassed by the appellant is of bar of limitation on which issue No.3 was framed. In the claim application, the respondent had prayed for condonation of delay of 38 days. The Assessment Certificate was issued on 1st July, 1986 and the claim application was filed on 8th November, 1989. 5 fa900-90j. Therefore, the Tribunal observed that the delay was in fact of 68 days. Respondent relied upon Exhibit-'P-13' which was letter dated 3rd August, 1989 sent by the Chief Claims Officer of the appellant. The said letter was admitted by the appellant. In the said letter, the Chief Claims Officer stated that the enquiry in the case was in progress to collect some more documents required for taking final decision. Therefore, a specific request was made to the respondent not to precipitate the matter by filing a suit only to save limitation. In the said communication it was specifically stated that the Railway administration shall not take plea of bar of limitation. As pointed out earlier, the appellant specifically accepted the genuineness of the said letter. In view of the contents of the letter, the Tribunal has rightly accepted the case of condonation for delay. 5. As far as the title to the goods is concerned, the documents produced by the respondent were exhibited virtually by consent of the parties. On this aspect, the Tribunal has recorded a finding on the basis of the documents which are marked as exhibits. The Tribunal has considered the exhibited documents. The Claims Tribunal after considering the documents, held thus: “...... These documents except Exh.P-2 have not proved the title of the plaintiff to the suit claim. Exh.P-2 the sale patti contains a reference of payment of Rs.60,000/- to the consignor by Demand Draft No.459255 dated 6 fa900-90j. 13.6.1986 of State Bank of India, Masjid Bunder Branch, Exh. D-2 the Railway Receipt shows that the sender is Shiv Shankar Rice and General Mills and the consignee is 'Self'. On the back side of Railway Receipt that Company has made an endorsement to the effect “Please deliver to M/s Girish Trading Co.” and further endorsement by the Girish Trading Co. to Nirmal Bros. Though these endorsements do not prove that they are for valuable consideration, Exh. P-2 shows that the applicant passed Rs.60,000/-. The applicant, a partner of Girish Trading Co. in his affidavit had paid Rs. 60,000/- to sender by Bank Draft. No doubt he an agent can sue if he shows ownership or interest in the goods.” 6. The learned Member therefore came to the conclusion that the respondent was an endorsee for consideration of Rs.60,000/- therefore, the locus of respondent to file claim was accepted. Therefore, the Tribunal proceeded to grant compensation in terms of the assessment certificate and hence no fault can be found with the approach of the Tribunal. 7. The Tribunal has awarded interest at the rate of 12% per annum. There was no agreement between the parties to pay interest at any particular rate. The Tribunal has power under Section 34 of the Code of Civil Procedure, 1908 to grant interest. In view of mandate of Section 34, the interest could not have exceeded the rate of 6% per annum and to that extent the impugned Judgment and order will have to be modified. 8. Hence, I pass the following order: 7 fa900-90j. :: O R D E R :: i. The impugned Judgment and Order is modified. The rate of interest will be 6% per annum instead of 12% per annum. ii. Appeal is partly allowed on the above terms with no order as to costs. iii. The respondent shall be permitted to withdraw the compensation amount as per the modified Award. The balance amount shall be paid over to the appellant. (A.S.OKA, J.)