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PETITIONER: BIRLA CEMENT WORKS

       Vs.

RESPONDENT: G.M., WESTERN RAILWAYS & ANR.

DATE OF JUDGMENT02/01/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1995 AIR 1111            1995 SCC  (2) 493  JT 1995 (2)    59        1995 SCALE  (1)386

ACT:

HEADNOTE:

JUDGMENT: 1.  The petitioner is a manufacturer of 60 cement  at  Chittorgarh in Rajasthan.   It  had  transported cement  to various destinations through  railway  carriages. Prior to 3.5.1989, the petitioner got the cement transported through  meter gauge from the railway siding  at  Chanderia. After conversion into broad gauge the railway siding was  at Difthkola Chittor Broad Gauge Rail Link.  In consequence  34 kilometers’  distance  was added to  levy  freight  charges. Thereafter,  between  May-June,  1989 and  March,  1990  the petitioner had, various consignments, booked and transported the  cement  to diverse destinations and  paid  the  freight charges.   Later,  on January 21, 1991, the  petitioner  has sent  a notice to the Western Railway under Section 78-B  of the  Indian  Railway  Act, 1890,  (for  short,  ’the  Act’), claiming   refund  of  different  amounts.   Since  it   was rejected, on 23.12.1991 the petitioner laid the claim  under s.  16  of  the Act before the Railway  Claims  Tribunal  at Jaipur,  which by its Order dated 25.11.1992, dismissed  the petition  holding  as being barred under s.78B of  the  Act. When  it was challenged in Civil Appeal No.84/93  and  batch the  Single  Judge  of the High Court  by  his  order  dated 25.1.1994  dismissed the same.  On further appeal  No.76/94, the  Division  Bench by order dated  3.10.94  confirmed  the same.  Thus, these Special Leave Petitions. 2.   The  principal contention raised by the  petitioner  is that  it  had  discovered  the  mistake  when  the   railway authorities have confirmed by their letter dated  12.10.1990 that they have committed mistake in charging excess  freight on  wrong  calculation of distance.  The  limitation  starts running from the date of discovery of mistake and, therefore stands excluded by operation of s.17(1)(c) of the Limitation Act, 1963 Act 21 of 1963 and that s.78-B has no  application to  the facts in this case. In consequence, the  High  Court and  the Tribunal have committed error of law  in  rejecting

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the claim for refund.  We find no force in the contention. 3.   Section  17(1)(c)  of the Limitation Act,  1963,  would apply  only to a suit instituted or an application  made  in that behalf in the civil suit.  The Tribunal is the creature of the statute.  Therefore, it is not a civil court nor  the Limitation  Act has application, even though it may be  held that  the  petitioner discovered the  mistake  committed  in paying  ’over  charges’ and the limitation is not  saved  by operation of s.     17(1)(c) of the Limitation Act. 4.   Section  78-B of the Act provides that a  person  shall not  be entitled to refund of over-charge or excess  payment in respect of animals or goods carried by railway unless his claim to the refund has been preferred in writing by him  or on  his  behalf to the railway administration to  which  the animals  or  goods were delivered to be carried  by  railway etc. within six months from the date of the delivery of  the animals  or goods for carriage by railway.  The proviso  has no application to the facts of this case.  An over charge is also a charge which would fall within the meaning of  s.78-B of  the  Act.  Since the claims were admittedly  made  under s.78-B  itself but beyond six months, by operation  of  that provision in the section itself, the claim becomes barred by limitation.  Therefore, the Tribunal and the High Court have rightly concluded that the petitioner is not entitled to the refund of the amount claimed. 5.   We  do not find any ground for our   interference  with the orders challenged in S.L.Ps. The Special Leave Petitions are accordingly dismissed.                              62