Hanuman Pd. Sharma vs Union of India (UOI)

I.A. Ansari, J.—This appeal has been preferred u/s 23 of the Railway Claims Tribunal Act, 1987, praying, for setting aside the order, dated 19.8.1998 passed by the learned Railway Claims Tribunal, Guwahati, in Application No. Misc. 4/97.

The facts giving rise to this appeal according to the appellant may in brief be stated as follows

(i) A consignment of 150 bags and 260 packets of rice was booked under Invoice No. 38/061-1267 dated 7.5.1993 from Gorakhpur Railway Station to Silchar for being delivered to the appellant which is a partnership firm at Kalibari Road, Silchar. The consignment got diverted and reached its destination after inordinate delay. The rice having been damaged on transit the appellant served the respondent with a notice dated 11.7.1993 u/s 106B of the Railway Act demanding Rs. 11,151,00 as compensation for damage caused to 1593 Kgs of rice @ Rs. 7.00 per Kg. The appellant kept pursuing the matter by sending reminders the last one having been sent on 9.2.1996 but the Railways remained silent. However after the period of limitation was over the railway (i.e., respondent) sent to the appellant a cheque No. F-081488 dated 12.12.1996 for Rs. 5905.00 vide its letter dated 19.12.1996 and informed the respondent accordingly. As the respondent did not pay to the appellant balance unpaid amount the appellant instituted Application No. 4/97 aforementioned praying for recovery of Rs. 5346.00 as amount:

(ii) As the claim petition was filed beyond the period of limitation, a prayer u/s 17 of the Railway Claims Tribunal Act, 1987, was made before the learned Tribunal seeking admittedly, condonation of delay of about 8 months 13 days in making the claim. The respondents filed its objection resisting the claim of the appellant. Upon hearing both sides, learned Tribunal passed an order, on 19.8.1998, holding to the effect that no sufficient reason for condonation of delay in filing the claim application Misc Case No. 4/97 aforementioned was accordingly dismissed with direction to the parties to bear its own cost. Aggrieved by this order, the appellant has preferred this appeal.

I have carefully perused the relevant records including the impugned order. I have heard Mr. H. P. Barman, learned counsel for the appellant, and Mr. J. Singh, learned counsel appearing for the respondent.

In support of appellant''s case, Mr. Barman has submitted that the appellant cannot be made responsible for lodging his claim application after expiry of the period of limitation because the appellant was according to Mr. Barman waiting for favourable settlement from the end of the respondent, but the respondent eventually sent a cheque dated 12.12.1996, for an amount of Rs. 5,905 only. The appellant was thus, contends Mr. Barman, prevented by sufficient cause from instituting its claim within time but the learned Tribunal submits Mr. Barman arbitrarily rejected the prayer for condonation of contention. Mr. Barman has placed reliance on Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, and Madras Port Trust Vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s, and submitted that instead of denying applicant''s prayer for condonation of delay on technical ground learned Tribunal ought to have decided the matter on merit. Mr. Barman pleads that the impugned order in the facts and circumstances of the case be set aside and the learned Tribunal be directed to dispose of the claim application on merit.

Controverting the above submissions made on behalf of the appellant Mr. J. Singh has submitted that the claim application reveals no reasons for justifying delayed making of claim application by the appellant. That apart Mr. Singh submits the respondent has sent the said cheque to the appellant along with a letter wherein it was clearly mentioned that if the said amount of Rs. 5,905 was not acceptable to the appellant in full and final settlement of its claim the cheque should be returned forthwith hut the appellant retained the cheque encashed the amount and then filed long after expiry of the period of limitation the present claim application demanding payment of the alleged balance amount of compensation. In such circumstances submits by Mr. Singh the claimant is barred from making any further claim for realisation of the alleged disputed claim amount Mr. Singh in support of his contention has drawn this Court''s attention to a decision of this Court reported in AIR 1973 SC Gau. 111 (The Union of India v. Rameshwarlal Bhagchand).

Having heard both sides and upon perusal of the relevant records. I find that under Clause (e) of para 7 at page 3 of the claim application the appellant has merely stated that after preferring its claim for Rs. 11,151,00, it perused its claim by several reminders the last reminder being on 9.2.1996 and when the respondent sent the cheque aforementioned the same was placed under protest by its letter dated 19.12.1996. The appellant, thus, notice, assigned no reasons whatsoever as to why it did not lodge the claim application within the period of limitation which admittedly expired as early as on 8.6.1996. According to the appellant''s own statement made under Clause (e) para 7 at page 3, it sent its last reminder on 9.2.1996. There is absolutely no indication in the claim application that the appellant made any further correspondence with the respondent after 9.2.1996 seeking either settlement of its claim or demanding payment of its alleged dues. Situated thus there is no escape from the conclusion that so far as the claimant was concerned the chapter of its demand for damages stood closed on and from 9.2.1996 and it was for this reason that no convincing reason was assigned by the appellant as to why it did not file its claim application on or before 8.6.1996.

In fact the record reveals that it was only after receiving the cheque as late as on 12.12.1996 (i.e., long after due date of limitation expired) that the appellant re-opened the chapter of its time-barred demand. The appellant thus exhibited no alertness vigilance and/or anxiety to recover its alleged dues within the period pf limitation.

Coupled with the above, it is also worth noticing that the respondent while forwarding the said cheque to the appellant sent a letter stating to the effect that the said cheque was being for warded to the appellant in full and final settlement of the claim and if the said offer was not acceptable to the appellant the cheque be returned forthwith. The appellant it appears from the record retained the cheque with it and brought it to the notice of the respondent that if the balance amount was not remitted to it within 15 days the appellant will institute a civil suit for recovery of the aforesaid amount. It is clear that the said letter of offer of the respondent had not given to the appellant any option to retain the cheque in partial satisfaction of its claim rather the said letter of the respondent contained a conditional offer the offer being either to accept the cheque in full and final satisfaction of its claim or return the cheque if this offer was not acceptable. Far from acting on this conditional offer the appellant suddenly revived its time-barred claim encashed the cheque in contravention of the offer made by the respondent and demanded payment of balance of the alleged compensation amount.

In the above view of the matter the law laid down in AIR 1973 Gau. 111 (supra), I find squarely applies to the facts of the case at hand and I see no reason to deviate from the law so laid down I, therefore, hold that the appellant was not justified in the facts and circumstances of the present case to encash the cheque and thereafter proceed to institute claim application seeking recovery of its time-barred claim for the alleged balance amount because Section 8 of the Contract Act does not permit such a conduct.

I may pause here to point out that the case at hand is a classic case covered by the provisions of Section 8 of the Contract Act which makes provisions for one of the modes of acceptance of a proposal Section 8 lays down that performance of the condition of a proposal or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal is an acceptance of proposal. In fact though Sections 7 to 9 of the Contract Act describe various modes in which proposals may be accepted Section 8 provides for acceptance of a proposal by conduct as against other modes of acceptance such as verbal or written communication contemplated by Sections 7 and 9.

In the case at hand when appellant received after expiry of the period of limitation a condition offer from the respondent to either accept the cheque in full and final satisfaction of the appellant''s claim or return the same forthwith to the respondent the appellant was undoubtedly left with only two options as contemplated u/s 8 of the Contract Act, one option being to accept the offer and encash the cheque and the other option being to return the cheque and forget the whole episode because the appellant''s claim was in any case, time-barred. The appellant it appears, chose not to accept the offer. In such a case, the only course left for the appellant was to return the cheque and forget if I may reiterate the whole chapter which stood closed almost 6 months before the offer was so made by the respondent. Amazingly enough, the appellant decided if I may say so to have the cake and eat it too which Section 8 as discussed above, does not envisage and/or permits. Had the appellant received the cheque before the period of limitation had expired and had then the appellant encashed cheque and yet demanded payment of remaining alleged unpaid dues the matter would have perhaps been a little different.

It is no doubt true that both the cases cited by Mr. Barman, namely, the Anantnag (supra) and the Madras Port Trust (supra) directs courts to adopt a liberal approach towards prayer made for condoning delay, particularly, if the just claim of an individual stands pitted against the technical plea of limitation raised by governments or public authorities. However, in the face of the facts of the case at hand, when the appellant appears to have revived the claim long after the expiry of period of limitation by attempting to take advantage of the said conditional offer of settlement received by it (appellant) after about 6 months of the expiry of the period of limitation. I am firmly of the view that the principles laid down by the Apex Court, in these two cases aforementioned cannot be made applicable.

In short in the face of the facts and attending circumstances of the present case I find that the appellant has not been able to make out any case which would have warranted the learned Tribunal to condone delay in making the claim application.

In the result and for the foregoing reasons this appeal is disallowed and the impugned order is maintained. No order as to costs.

Sent back the case record with a copy of this judgment and order.