1 FA.838.93 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 838 OF 1993 Union of India. ... Appellant Versus Indian Farmers Fertilizers Co-operative Limited. ... Respondent ----- Mr. A.N.Samant for the Appellant. Mr. R.V.Govilkar for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 29 th June, 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the parties. 2 The challenge in this appeal is to the judgment and order dated 28 th June, 1993 passed by the Railway Claims Tribunal, Bombay Bench. 3 The Respondent filed a Civil Suit in the Court of Civil Judge (Senior Division) at Mehsana on 21 st September, 1988. The case made out in the Civil Suit was that the Respondent had booked a consignment 2 FA.838.93 of one metre gauge rake of pooled Urea ex-Marmagoa Harbour to Kanpur Central Goods under the Invoice dated 14 th November, 1985. It is contended that freight on this rake was recovered at 115 Class (train load). It is contended that at the destination, Chief Goods Superintendent, Coopergunj, Kanpur wrongly raised and recovered charges of Rs.25,197/-. It was contended that the said charges were recovered by wrongly considering the minimum rate condition of the train load on MG for 800 Metric Tonnes instead of existing weight condition for train load for 650 Metric Tonnes in force from 15 th March, 1987. A claim for refund was made by the Respondent to the Chief Commercial Superintendent Northern Railways. The suit was filed for recovery of the refund amount together with interest thereon at the rate of 12% per annum from 18 th January, 1986. 4 It appears that on the basis of the provisions of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as “the said Act of 1987), on establishment of the Railway Claims Tribunal at Ahmedabad, the suit was transferred to the Railway Claims Tribunal at Ahmedabad. 3 FA.838.93 The suit was treated as an Application by the Tribunal. By order dated 25 th July, 1991, the learned Members of the Tribunal held that the Bench at Ahmedabad had no jurisdiction to try, hear and dispose of the application and therefore, the record and proceeding of the application was transferred to the Railway Claims Tribunal at Bombay for hearing and final disposal. Accordingly, the application has been decided by passing the impugned judgment and order. 5 Operative part of the impugned judgment and order reads thus: “O R D E R The Respondents are ordered to pay Rs.25,197/- to the Applicants together with interest on the amount @ 12% per annum from the date of the suit till realisation and costs. Scheduled of costs be prepared.” 6 The learned counsel appearing for the Appellant pointed out that the suit was filed against the Union of India through the North Eastern Railway. He pointed out the averments made in the plaint. He submitted that going by the averments made in the plaint, the Bench of 4 FA.838.93 the Railway Claims Tribunal at Bombay had no jurisdiction to entertain the claim application as admittedly, the charges were recovered from the Respondent by the Chief Goods Superintendent of North Eastern Railways at Kanpur, which is a place outside the local jurisdiction of the Tribunal at Bombay. He placed reliance on the relevant Rules, which define the jurisdiction of the various Benches of the Railway Claims Tribunal including the Bench at Bombay. He submitted that the issue of jurisdiction goes to the root of the matter. He submitted that the impugned judgment and order is nullity as the Bench of the Tribunal at Bombay had no jurisdiction. He submitted the fact that the Tribunal at Bombay has no jurisdiction is very apparent from the averments made in the plaint filed by the Respondent. He pointed out the averments made in paragraph No.4 of the plaint in that behalf. Thus, his submission is that the impugned judgment and order is vitiated on account of inherent lack of jurisdiction in the Railway Claims Tribunal, Bench at Bombay. He urged that the interest granted by the Tribunal is excessive. The learned counsel appearing for the Respondent supported the impugned judgment and order. 5 FA.838.93 7 I have given careful consideration to the submissions. I have perused the record of the Railway Claims Tribunal. The record shows that the learned Civil Judge (Senior Division) at Mehsana passed an order by which he transferred the the suit to the Railway Claims Tribunal at Ahmedabad in accordance with the provisions of the said Act of 1987. 8 The suit was transferred to the Ahmedabad Bench of the Railway Claims Tribunal, which was numbered as Claim Application No. 1199 of 1990. The Appellant applied for grant of time to file written statement. However, the written statement was not filed. On 12 th July, 1991, an application was made by the Presenting Officer of the Appellant contending that the Tribunal at Ahmedabad had no jurisdiction to try the claim application. Therefore, the Tribunal framed a preliminary issue of jurisdiction by order dated 17 th July, 1991. By the judgment and order dated 25 th July, 1991, the Ahmedabad Bench decided the preliminary issue of jurisdiction. In paragraph No.10 of the judgment and order, it was held by the Bench at Ahmedabad that the said Bench had no jurisdiction to entertain the application. In paragraph No.11 of said judgment and 6 FA.838.93 order, the Ahmedabad Bench observed that the Respondent had a choice either to get the application heard in the Tribunal at Bombay inasmuch as the consignment was booked at Goa, or in the Tribunal at Lucknow where the amount was recovered. A specific finding of the Bench at Ahmedabad is that the Bench at Bombay had jurisdiction over the State of Goa. It was held that as the consignment was booked at Goa, the said Tribunal had jurisdiction. Therefore, the Tribunal gave an option to the Respondent to elect and accordingly, the Bench at Ahmedabad passed an order directing the transfer of the application to the Railway Claims Tribunal, Bench at Bombay for hearing and final disposal. As pointed out earlier, the objection to the jurisdiction was raised by the Appellant and after hearing the Appellant, the aforesaid order was passed by the Bench at Ahmedabad. The said order of the Bench at Ahmedabad holding that the Bench at Bombay had jurisdiction was not subjected to challenge by the Appellant. 9 After the transfer of the case to the Tribunal at Bombay, a written statement was tendered alongwith an application for setting aside 7 FA.838.93 the earlier order passed by the Tribunal to proceed ex-parte against the Appellant. It appears from the record that the said application was allowed subject to payment of costs of Rs.150/- by the Appellant. The said order was passed on 22 nd October, 1992. The claim application was posted for payment of costs on 1 st December, 1992. Thereafter, the application was fixed on 21 st December, 1992 and 12 th January, 1993. On 12 nd January, 1993, after finding that cost amount was not paid, an order was passed by the Tribunal that the written statement of the Appellant cannot be accepted. I have perused the written statement, which is on record which was not accepted by the Tribunal. In the said written statement, there is no specific plea raised regarding the local jurisdiction of the Tribunal at Bombay. Only a vague statement has been made in paragraph No.14 that the similar cases of IFFCO are already under process of finalization by the Tribunal and a contention has been raised regarding jurisdiction in those cases. However, even the said vague contention could not have been considered by the Tribunal as the written statement was not taken on record due to default committed by the Appellant in payment of cost amount. 8 FA.838.93 10 As far as plea of bar of territorial jurisdiction is concerned, the Apex Court in the case of Hira Lal Patni Vs. Kali Nath [AIR (1962) Supreme Court 199] held that it is well settled that an objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. The Apex Court further observed that the issue of competence of a Court to try a case goes to the root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. It was further held that an objection as to local jurisdiction can always be waived. 11 Now turning to the facts of the case in hand, on the basis of the objection to local jurisdiction raised by the Appellant before the Tribunal at Ahmedabad, a finding was recorded by the Tribunal after hearing the Appellant that the Railway Claims Tribunal at Bombay had jurisdiction to entertain the application and therefore, under the order of the Bench at Ahmedabad, the claim application was transfered to the Bench at Bombay. There is nothing on record to show that the said order was challenged by the Appellant. As state earlier, as the record goes, the 9 FA.838.93 objection to the territorial jurisdiction of the Bench at Bombay was not raised by the Appellant. The fact that the order dated 25 th July, 1991 passed by the Bench at Ahmedabad was not challenged, shows that the said objection to the jurisdiction of the Tribunal at Bombay was waived by the Appellant. As pointed out earlier, the law is that the objection to the local jurisdiction of the Court or Tribunal is not at par with the objection to inherent jurisdiction and the objection to local jurisdiction can be always waived. In the facts of the case, the said objection was waived. There is one more aspect of the matter. Perusal of the true copy of the impugned judgment and order, which is annexed to the appeal shows that the advocate representing the Appellant was present. The impugned judgment and order shows that no such objection regarding jurisdiction was raised even orally. This is another indication to show that the said objection was waived by the Appellant. 12 Hence, it is not open for the Appellant now to raise a contention that the Tribunal at Bombay had no jurisdiction and the said contention is rejected. 10 FA.838.93 13 The only other point argued by the Appellant is regarding grant of interest at the rate of 12% per annum. The Apex Court has held that though there is no provision in the Railways Act to grant interest, the Tribunal can always invoke provisions of the Interest Act and Section 34 of the Code of Civil Procedure, 1908 for grant of interest. Even by invoking Section 34 of the said Code, interest could not have been granted at the rate exceeding 6% per annum. Hence, to that extent, the impugned order will have to be modified. 14 Hence, I pass the following order: i. The impugned judgment and order is confirmed subject to modification that rate of interest will be 6% per annum instead of 12% per annum ; ii. It is clarified that the rest of the impugned judgment and order is confirmed ; iii. Out of the amount deposited by the Appellant, the amount payable to the Respondent in terms of the modified impugned judgment and order together with interest accrued on the same be paid over to the Respondent. Balance, if any, be refunded to 11 FA.838.93 the Appellant ; and iv. The appeal is partly allowed on above terms with no order as to costs. [ A.S.OKA, J ]