Judgment:
P.C. Naik, J.
1. This is an appeal under Section 23(1) of the Railway Claims Tribunal Act, 1987 filed by the Union of India and others against the judgment dated 18-1-1993 passed by the Railway Claims Tribunal, Bhubaneswar, in T. A. No. 289 of 1990.
2. Plaintiff-respondent had filed Money Suit No. 115 of 1989 in the Court of the Subordinate Judge, Rourkela against the Union of India and others for refund of Rs. 1,32,87,749/-, which, according to the plaintiff, had been illegally realised from it by the Railway Administration.
3. The facts giving rise to this appeal are that the plaintiff require imported coal for the Rourkela Steel Plant. The coal was unloaded at Visakhapatnam Port wherefrom it was required to be transported to Rourkela Steel Plant Exchange Yard at Bondamunda where the wagons are placed for the purpose of unloading.
4. It is the plaintiff's case that the shortestavailable route from Visakhapatnam 'to Rourkela is via Viajaynagaram-Tjtlagarh-Sambalpur-Jharsuguda-Rourkela covering a distance of 667 kilometres. The alternative, but longer and dearer route is via Vijay-nagaram-Khurda Road-Kharagpur-Tata-nagar-Chakradharpur-Rourkela covering a total distance of 1082 kilometres. However, in view of a notification issued under Section 27A of the Indian Railways Act, 1890, the Central Government had notified certain routes called 'rationalised routes' over which particular traffic had to be booked and accordingly, in terms of a general order, the coal imported at Visakhapatnam Port for carriage to Rourkela Steel Plant was required to be booked and carried by the longer route covering 1082 kilometers instead of by the shorter route of 667 kilometres. According to the plaintiff, in view of the rationalisation scheme and the general order, it had no choice but to pay freight for the longer route, as booking could not be for carriage over the shorter route.
5. It is the further case of the plaintiff that in or about April, 1987, an officer came to know that some of the rakes booked were despatched to Rourkela by the shorter route (covering a distance of 667 kilometres) though weight charges were recovered for carriage by the longer rationalised route (covering a distance of 1082 kilometres). On further enquiry made at different junctions, it was gathered that during the period 15-4-1986 to 28-11-1986 and 5-1-1987 to 28-2-1987, a large quantity of imported coal booked from Visakhapatnam to Bondamunda had in fact been carried, not by the rationalised route but by the shorter route. On coming to know about the aforesaid fact, alleges the plaintiff, it lodged a demand for refund of the differential amount of Rs. 1,32,87,749/-, but the same was turned down. It is alleged by the plaintiff that though the notice of demand was styled as one under Section 78-B of the Indian Railways Act, 1890, in fact the demand cannot be said to be one under that section as the claim in question is not one which comes within the purview of the said section. On 9-6-1989, notice under Section 80, C. P. C. was sent to the defendants and thereafter, the suit was filed inthe court of the Subordinate Judge, Rourkela, which was registered as Money Suit No. 119 of 1989. However, as in the meantime, the Railway Claims Tribunal Act was enacted and the Railway Claims Tribunal was established at Bhubaneswar, the suit was, in terms of Section 24 of the said Act, transferred to it and was re-numbered as T. A. No. 289 of 1990.
6. The appellants-defendants resisted the claim and denied their liability, inter alia, on the ground that in terms of the rationalisation scheme, the goods had to be carried over the rationalised route and accordingly, freight was charged. It was pleaded that on some occasions due to operational constraints, out of 4900 wagons nearly 2900 wagons had to be carried via the shorter route and this was permissible in view of the decision of the Railway Board to the effect that in respect of the traffic booked by the rationalised route but occasionally carried by the shortest/ cheapest route on account of exigencies of operation, freight charges could be retained by the booked route. It was further pleaded that for want of notice under Section 78-B of the Indian Railways Act, 1890, the suit/claim application was not maintainable. Service of notice under Section 80, C. P. C. was also denied. It was further contended that as the consignments were booked on different dates during the period April, 1986 to November, 1986, the suit filed on 14th of August, 1989 was barred by time. It was also pleaded that as the claim was with respect to different consignments booked on different dates, separate applications were required to be filed as the claims could not be clubbed together. The averment that the defendants had fraudulently suppressed the fact that the coal was carried by the shorter route, was denied.
7. After hearing the learned counsel for the parties and basing on the pleadings and documents on record, the Tribunal held that the claim could not be rejected for want of notice under Section 78-B as the said provision was not attracted in view of the nature of the claim which was not one for refund of overcharge; that it was not necessary for the plaintiff to issue separate notice for each transaction and that a combined notice covering more than one transaction was proper; that it wassometime in April, 1987 the applicant had, for the first time, learnt that the coal was being carried by a shorter route though freight was charged for carriage by the longer route; that the Railways had in fact issued a notification that the consignment in question would be carried and charged by the rationalised route, i.e. via Kharagpur; that the Railways were not entitled to undue enrichment by retaining the freight for a longer route while actually carrying the goods by a shorter route. Accordingly, accepting the statement, i.e. the details of movements of goods by the shorter route (this was not verified by the Railways though time was granted by the Tribunal), the claim application was allowed. The respondent was directed to pay by way of refund a sum of Rs. 1,32,87,749/- and costs amounting to Rs. 1,51,608.75 towards court-fees and Rs. 1,33,740/- towards counsel's fee. Pendente lite interest at the rate of 12 per cent per annum on the principal sum was also ordered to be paid. Hence this appeal by the respondent.
8. The appellants seek reversal of the impugned judgment on three grounds, namely (i) as the route in question is a notified route under the rationalisation scheme, the Railway Administration was justified in charging freight for the rationalised route and if for operational constraints goods were carried over a route other than the route by which such goods were booked, this would not be a breach of contract giving the consignor the right to recover the differential freight charges; (ii) the claim being for refund of overcharge was not maintainable for want of notice under Section 78-B of the Indian Railways Act, 1890 and that the Tribunal was not right in holding that the notice under Section 78-B was not necessary, as the claim was not for refund of overcharge; and (iii) the award of Rs. 1,33,740/- towards lawyer's fee was illegal and without any basis.
9. Before proceeding further, it would, I feel, be proper to mention that as the claim in question relates to a period prior to the enactment of the Indian Railways Act, 1989, reference is made to the provisions contained in the earlier Act of 1890.
10. In terms of Section 28, the Railway Administration is under a legal and statutory obligation to charge for the carriage of goods equally from all persons at all times at the same rate for the same description of goods transported under the same circumstances. The section reads thus :
'28. Prohibition of undue preference. A railway administration shall not make or give any undue or unreasonable preference or advance to, or in favour of, any particular person or railway administration or any particular description of traffic, in any respect whatsoever, or subject any particular person or railway administration or any particular description of traffic to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.'
However, in 1950 by Act II of 1950, a new Section, namely, Section 27-A was inserted in the Act. Said Sec. 27A reads thus :
'27-A. Power of Central Government to give directions in regard to transport of goods by railway administration. (1) The Central Government may, if in its opinion it is necessary in the public interest so to do, by general or special order, direct any railway administration--
(a) to give special facilities for, or preference to the transport of any such goods or class of goods consigned to the Central Government or to the Government of any State or of such other goods or class of goods, as may be specified in the order;
(b) to carry any goods or class of goods by such route or routes and at such rates as may be specified in the order.
(2) Any order made under Sub-section (1) shall cease to have effect after expiry of six months from the date thereof, but it may be renewed from time to time.
(3) Notwithstanding anything contained in this Act, every railway administration shall be bound to comply with any direction given under Sub-section (1), and any action taken by a railway administration in pursuance of any such direction shall not be deemed to be a contravention of Section 28.'
By this section, power was conferred on the Central Government to give directions in regard to transport of goods by Railway Administration. This provision was enacted with a view to arming the Central Government with powers to give directions for according special facilities, or special treatment in transport of goods or class of goods consigned to the Central Government or the Government of any State, or of such other goods or class of goods that may be specified in the order. This provision also conferred power on the Central Government to give directions for the same purpose for carrying goods or class of goods by such route or routes and at such rates, as may be specified in the order. Power was thus conferred on the Central Government for according special facilities or preferential treatment in the matter of carriage of goods in respect of consignees or class of goods if in the opinion of the Central Government it was necessary so to do in the public interest. In other words, the Railway Administration could not give undue preference to any particular person or particular transaction of traffic but could do so if it was so ordered by the Central Government.
11. In exercise of powers under Section 27-A, the Central Government admittedly framed a scheme for transportation of certain class of goods over particular routes. This was known as the 'rationalisation scheme' and in order to make it effective, some specific routes for carriage of specific goods were notified. The routes so notified were termed as the 'rationalised routes'. Accordingly, coal imported at Vizagapatnam Port had to be carried over the longer and dearer rationalised route, i.e. via Vijaynagaram-Khurda Road-Kharagpur-Tatanagar-Chakradharpur-Rourkela covering a total distance of 1082 kilometres, though the shorter and cheaper route, i.e. via Vijay-nagaram - Titlagarh - Sambalpur - Jhar-suguda - Rourkela covering a total distance of 667 kilometres, was admittedly available. As, in view of the rationalisation scheme, goods could not be carried over a route other than the rationalised route, goods of the respondent had to be booked for being carried over -the rationalised route, freight was assessed and charged for a distance of 1082 kilometres and recovery of freight was made accordingly. Thus, what was recovered from the respondent was the exact freight for 1082 kilometres. In other words, no amount in excess of what was payable as freight for 1082 kilometres was recovered from the respondent. This is the admitted position,
12. In order to appreciate the contention that the claim could not be entertained for want of notice under Section 78-B of the Indian Railways Act, 1890, it is necessary to refer in brief to the said provision, which reads thus :
'78-B. Notification of claims to refunds of overcharges and to compensation for losses. A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non-delivery of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf--
(a) to the railway administration to which the animals or goods were delivered to be carried by railway, or
(b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred,
within six months from the date of the delivery of the animals, or goods for carriage by railway :
Provided that any information demandedor inquiry made in writing from, or anycomplaint made in writing to, any of therailway administrations mentioned above byor on behalf of the person within the saidperiod of six months regarding the nondelivery or delay in delivery of the animals orgoods with particulars sufficient to identifythe consignment of such animals or goodsshall, for the purposes of this section,' bedeemed to be a claim 16 the refund orcompensation.'
What this section provides for is, apart front claim fop compensation for the loss, a claim for refund of over charge to a person in respect of animals or goods carried by the Railways:
The condition precedent for making such a refund is that the person should have preferred a claim in writing for such overcharge or compensation within six months of the date of delivery of the animals or goods for being carried by the Railway. Thus, before it can be said that the claim is not maintainable for want of notice under Section 78-B, it will be necessary to ascertain as to whether or not what is being claimed is a refund of overcharge or something else. For this purpose, it becomes necessary to ascertain the meaning of the word 'overcharge', or in other words, to know what is an 'overcharge'.
13. The respondent's claim for refund is based on the ground that though the goods were booked for being carried over the longer and dearer rationalised route, they were, in fact, for a period of about nine months and a half carried over the shorter and cheaper route though it was charged and had paid the freight for the longer and dearer rationalised route. The claim in substance is for refund of the differential amount. The question, therefore, is whether or not this amount is 'overcharge' as contended by the appellants.
13-A. The word 'overcharge' has not been defined in the Act, Therefore, the common parlance meaning has to be taken to explain its meaning. In common parlance, the simple meaning of 'overcharge' is anything charged in excess of what is actually to be charged for a particular thing; Taking this to be the meaning of 'overcharge', it has to be seen as to whether the claim of the respondent is or is not for refund of overcharge. Admittedly, the goods were booked for being carried over the rationalised route which covers a distance of 1082 kilometres. It is neither the respondent's case nor the appellants' case that what was charged towards freight was in excess of what was payable for the distance of 1082 kilometres. In other words, the respondent was not 'overcharged' because no freight in excess of what was payable for 1082 kilometres was realised.
14. To appreciate the meaning of 'over-charge' as illustration from the facts of the present case would, I feel, be appropriate. Say, for example, 'A' had booked the coal forbeing carried by the shorter route covering a distance of 667 kilometres but freight was charged from him for the longer route covering a distance of 1082 kilometres. Here, since the coal was booked to be carried by the shorter route, freight 'ought to have been determined accordingly. So, any amount recovered from 'A' towards freight in excess of what was legally payable for the distance of 667 kilometres would be an 'overcharge' because what was recovered from him was over and above what was actually payable for the distance of 667 kilometres over which goods were booked. Alternatively, if 'A' had booked the goods over the longer route covering a distance of 1082 kilometres and freight was charged for such distance but carriage was over the shorter route covering distance of 667 kilometres, in such a situation, if 'A', on coming to know that though he had booked the goods to be carried over the longer route and had paid the freight accordingly yet as the goods' were carried over the shorter route, claims for a refund, this claim would not be one for 'overcharge' for the simple reason that he had booked the goods by a particular route and paid the freight that was payable for that distance. The claim of the respondent in the present case is of a like nature. Thus, under no stretch of imagination can it be said that its claim is for refund of over-charge. The contention of the learned counsel for the appellants that the claim made by the respondent for refund of overcharge, therefore, must fail.
15. To put it differently, it is not the respondent's case, that freight charged in excess of what was prescribed for a particular distance was recovered and that it wants refund of such excess charge. What in fact it claims is that the Railway Administration had collected such charges illegally and unreasonably because the goods' booked over the longer route for which freight was paid were, in breach of the contract of carriage carried over a shorter route and as such, it was entitled to a refund of the differential freight.
16. In view of the above finding that what was claimed by the respondent, was not a refund of an 'overcharge', it follows, that anotice under Section 78-B(Section 106 of the new Act) was not required to be served before filing the claim. The Tribunal was, therefore, right in entertaining the claim.
17. Having come to a conclusion that the claim of the respondent is not for a refund of overcharge, it may be relevant to find out as to what is the nature of his claim. In my view,' the provisions of Section 72 of the Indian Contract Act, 1872 provide the answer. This provision reads thus :
'72. Liability of person to whom money is paid or thing delivered by mistake or under coercion.-- A person to whom money has been paid, or anything delivered, by mistake or under coercion must repay or return it.'
This section in general implies that if a person pays money under a mistake or under coercion, he is entitled to recovery of such money unless he has at any time waived his claim or has been estopped by reason of conduct by which the payee has altered his position by parting with the money. It is now well settled by the Supreme Court in Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf, AIR 1959 SC 135, that this section in terms does not make any distinction between 'a mistake of law' and 'a mistake of fact', as the term 'mistake' has been used without any qualification or limitation whatever and comprises within its scope 'a mistake of law' as well as 'a mistake of fact'. Thus, if one party under a mistake, whether of fact or of law, pays to another party money which is not due by contract or otherwise, that money must be re-paid. In other words, subject to certain limitations, this section embodies the doctrine of equitable restitution. While dealing with this provision, it was held in Pannalal Sukh Nanda Prasad v. Union of India, Delhi, AIR 1956 Vindh Pra 26, that where tax could not be levied at a rate higher than that provided in the schedule of Taxation Act, a suit for recovery of excess money brought under Section 72 of the Contract Act on the ground that it was paid under a mistake, was maintainable. Similar would be the case if the amount is paid under 'coercion'' which word in the context of Section 72 is to be taken in its ordinary sense meaning 'compulsion', because therespondent had no alternative than to book its coal to be carried over the rationalised route, i.e. the longer and dearer route.
18. In this background, one may consider the respondent's claim. Admittedly, the rationalisation scheme is framed in exercise of powers conferred on the Central Government by Section 27A(1)(b) which provides that the Central Government may, if in its opinion it is necessary in the public interest so to do by general or special order, direct any Railway Administration to carry any goods or class of goods on such route or routes at such rates as may be specified in the order. Any order issued under this provision would, therefore, have the force of law, as it would be binding both, on the Railway Administration and also the consignor of the goods or class of goods that are specified in the order. In other words, the consignor will not have any choice of a particular route but will be obliged to book the specified goods or a class of goods over a particular route termed as 'rationalised route' and he will be required to pay the freight accordingly. Thus, though the goods in the instant case were carried over a route covering a distance of 667 kilometres, the respondent was obliged under either a mistake of fact that the goods would be carried over the rationalised route or under coercion because unless it paid the freight for the longer but dearer route, his goods, the coal would not be booked by the Railway for carriage to Rourkela. In this way, though he paid freight for the longer and dearer route for 4900 wagons, more than half thereof, i.e. 2900 wagons, were carried over the shorter and cheaper route. The claim for differential amount of freight what was payable and what was actually paid would, I feel, be a claim falling under Section 72 of the Contract Act, for it has been held in Union of India v. Steel Stock Holders Syndicate, Poona, AIR 1976 SC 879, that the Indian Railways Act does not supersede the provisions of the Contract Act.
19. The question which now arises for consideration is, whether the Railway Administration can resist; the Claim by taking recourse to the provisions of Section 76A of the Act (Section 69 of the new Act), which reads thus :
'76-A. Responsibility for deviation of route. Where, due to a cause beyond the control of a railway administration or due to congestion in the yard or other operational reason, animals or goods delivered to the railway administration, to be carried by railway are carried over a route other than the route by which they are booked or the usual or customary route, the railway administration shall not be deemed to have committed a breach of the contract of carriage by reason only of the deviation of route.'
This section protects the Railway Administration from its liability for not fulfilling to the latter their contract with the owner of the goods or animals entrusted to them for carriage. If the Railway deviates from the route by which it has agreed to despatch the goods for reasons beyond their control or due to congestion of goods in the yard or other reasons connected with the operation of the Railway and for this reason they are carried by a route other than the route for which they are booked, then such a deviation of route shall not be deemed to be a breach of the contract of carriage.
20. To begin with why the goods could not be carried over the route, i.e. over the rationalised route, over which they booked and had to be carried by a different (shorter and cheaper) route, is something within the exclusive knowledge of the Railway Administration. It is not possible for the consignor to know the reason for deviation of the route. Therefore, if the Railway Administration desired to avoid its liability, burden lay on it to satisfactorily explain the reasons for deviating from the booked route. The only reason assigned for deviation of route in the reply filed by the Railway Administration can be inferred from the following extracted portion from paragraph 12 thereof :
'....... Under the said Scheme, theconsignment has to be charged on longer route or rationalised route, but the option lies with the defendant Railways as to how and when to carry the goods other than the route by which such goods are booked as thetransport or carriage of goods are subject to various restrictions unforeseen contingencies which are beyond the control of the Railway Administration, such as for instance congestion in the yard and other operational reasons and the like. The said unforeseen operational factor during the period April, 1986 to February, 1987 which compelled the defendants to divert traffic other than the rationalised route has been shown in Annexure-II......'
21. From the above pleadings, two things emerge -- (i) According to the Railway, though the goods had been booked on the longer rationalised route and freight is charged for that route, it was not obliged to carry the goods over the booked route, and (ii) the respondent cannot claim refund as the deviation was due to 'congestion in the yard and other operational reasons and the like' (extracted from the reply). To say the least the above statements apper to be contradictory. If what is contended is correct that the -Railway Administration has the right to carry goods over whichever route they like, contrary to the booking instructions and freight charged for the booked route, then question of resisting the claim by taking recourse to Section 76-A (though it is not mentioned) cannot arise. But, nothing more may be said on this particular aspect, for, 1 feel the provisions contained in Section 76-A are sufficient to repell the contention that notwithstanding the booking instructions, the Railway can carry the goods in the manner they like. If this were so, there would have been a specific provision to this effect or it would not have been necessary to incorporate Section 76-A which provides for extenuating, circumstances for which exemption from liability for deviation of route can be claimed. This part of the contention must, therefore, fail.
22. The question which next arises is whether or not the Railway Administration has been able to make out a case so as to take shelter under the provision of Section 76-A. I think not, for I feel that mere repetition of the expression 'congestion in the yard or other operational reason and the like' in the written-statement is not sufficient. It wasnecessary for the Railway Administration tohave established the exact reasons whichnecessitated a deviation of route. This becameall the more necessary because admittedly outof 4900 wagons which were booked over therationalised longer and dearer route andfreight ,was charged for a distance of 1082Kilometres as many as 2900 wagons werecarried by the shorter and cheaper route,which means, more than 50 per cent of theconsignment was moved on the shorter andcheaper route. No reliance can, therefore, beplaced on Annexure 2 for exonerating theRailway Administration. Judicial notice canbe taken of the fact that movement of everytrain, whether goods or passenger, is monitored from station to station. Every delay,break-down or disturbance in movement oftrain is duly recorded. Likewise, accidents arealso recorded. If there is a congestion in theyard, this fact will also be in the recordrelating to the particular yard because themovement of the train is recorded. Yet, noeffort was made by the Railway Administration to produce any record from which itcould be inferred that the deviation from thebooked route was occasioned due to congestion in the yard or other relevant reasons andof undue enrichment at the cost of therespondent. As the Railways, relying on Section76-B, claim indemnity, the burden is on themto strictly prove the reasons which compelledthem to move the traffic on a route other thanthe one over which goods were booked andfor which freight had been recovered.
23. When the respondent booked the coal on a particular route and paid freight for carriage thereof, there came into existence a contract of carriage between the respondent and the appellants. In view of this, it was, unless conditions laid down in Section 76-B existed, obligatory for the appellant to have moved the coal in terms of the contract of carriage. This admittedly they failed to do for no valid reason. Therefore, the Railway Administration cannot get out of their liability by taking recourse to the provisions contained in Section 76A of the Act for the simple reason that they have failed to prove the conditions necessary for the presumption in their favour that arises under the saidsection. No effort has been made to place any material on record so as to indicate that for some specified reason the particular rake containing the coal booked by the respondent could not be moved on the rationalised route at a particular point of time due to a breakdown or other relevant constraint. A general statement is not sufficient, for it cannot be presumed that the fracture of the rail or engine failure coincided with the movement of the rake containing coal. As there was admittedly, a breach of contract of carriage, the respondent was justified in its claim for the differential amount of freight which has rightly been ordered to be refunded.
24. Having held that the respondent's claim was not for refund of overcharge but for refund of the differential charges and having come to the conclusion that there was a contract between the respondent and the appellants for carriage of the coal and the latter having committed a breach thereof, the question that now crops up for consideration is whether the suit was within time.
25. The case of the respondent is that for the period 15-4-1986 to 28-11-1986 and 5-1-1987 to 28-2-1987, it continued to pay the freight that was demanded on a bona fide beliefs that its goods, i.e. the coal, was to he carried by the rationalised route. It is the case of the respondent that it was only in April, 1987, for the first time, it discovered the mistake that freight in excess of what was payable for the route over which the goods moved, was charged. It, therefore, issued a notice under Section 80, C.P.C. on 9-6-1986 which was received by the defendant-appellant No. I on 12-6-1989 and by others on 13-6-1989 whereafter the suit was filed on 14-8-1989.
26. It is now to be seen as to which Article of the Limitation Act, 1963 will govern the period of limitation for a suit of this nature. In the facts and circumstances of the case, I feet, the appropriate Article would be Article 55 which reads thus :
'55. For compensation for the breach of any contract, express or implied not herein specially provided for.
Three yearsWhen the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing) when it ceases.'
The word 'compensation' in this Article is to be understood to denote the payment which a party is entitled to claim on account of loss or damage arising from the breach of a contract. The word 'compensation' cannot be restricted to a claim of unliquidated damages but can be held to include a claim of certain sum, or in other words, the expression 'compensation for the breach of a contract' does not only point to a claim for unliquidated damages, but is used in a very wide sense and includes a claim for payment of a certain sum. (See Tricomdas Cooverji Bhoja v. Gopinath Jiu Thakur, ILR (1916) 44 Cal 759 : (AIR 1916 PC 182).
27. Assuming for the sake of argument that Article 55 of the Limitation Act is not applicable, I feel that the suit will then fall under the residuary article, namely, Article 113 which provides that any suit for which no period of limitation is provided elsewhere in the schedule, can be filed within three years when the right to sue accrues. So, in either case, the period of limitation for a suit of thisnature, would be three years.
28. The claim in the instant case is for refund of the differential freight, as the goods, though booked and paid for carriage over the longer and dearer rationalised route, were in fact carried over a shorter and cheaper route. Thus, the measure of compensation in this case is this differential amount. The suit claiming such a relief is therefore, to be filedwithin three years from the date when the contract is broken. At first sight, therefore, the claim for the period 15-4-1986 to 14-11-1986 may appear to be: barred but this is not so because of the provisions contained in Section 17(1)(c) which reads thus:
' 17. Effect of fraud or mistake.-- (1) where, in the case of any suit or application for which a period of limitation is prescribed by this Act--
(a)xxx xx
(b) xxx xx
(c) the suit or application is for relief from the consequences of a mistake; or
(d) xxx xx
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, withreasonable diligence, have discovered it;....'
29. Thus, as the suit was admittedly filed within a period of three years from the date of discovery of the mistake, it was within time and was rightly entertained.
30. Having held that there was a breach of contract of carriage and that for unjustifiable reason, the goods were though booked and charged for being carried over the longer and dearer route, were carried for a considerable length of time over a shorter and cheaper route, a order directing refund of the differential freight can be the only proper order. The Railway Administration cannot enrich itself by retaining the amount which it is not rightly entitled to retain. Thus, refusal to refund will result in unjust enrichment, as the Railway Administration would enrich itself at the expense of the respondent. In (1989) 4 SCC I : (AIR 1990 SC 3l3), Mahabir Kishore v. State of Madhya Pradesh, it has been laid down as follows:
'The principle of unjust enrichment require; first, that the defendant has been 'enriched' by the receipt of a 'benefit'; secondly, that this enrichment is 'at the expense of the plaintiffs'; and thirdly, that theretention of the enrichment be unjust. This justifies restitution. Enrichment may take the form of direct advantage to the recipient wealth such as by the receipt of money or indirect one for instance where inevitable expense has been saved.'
This principle, I feel, squarely applies to the facts of the present case and as such, refusal to refund will result in unjust enrichment of the appellants.
31. The appellants made an effort to rely on Clause 2(b) of Circular No. R. Con. 67/438/4 dated 14-4-1987 which provides that in respect of the traffic booked by the rationalised route, but occasionally carried by the shortest/cheapest route on account of exigency of operation, freight charges may be retained by the booked route. On the other hand, the learned counsel for the respondent placed reliance on Clause (c) of the same Circular which provides that in respect of booked traffic by the rationalised route, but mostly carried by the shortest/ cheapest route freight charges may be retained by the carried route and the balance refunded.
32. First of all, this Circular issued by the South Eastern Railway cannot override the express provisions of law nor has any effort been made by either party to bring to my notice the provision or authority under which this Circular was issued or to show that the same would override the statutory provisions. Even otherwise, nothing can turn upon this Circular because this was initially kept in abeyance and subsequently withdrawn by special rate circular No. R. Con. 67/438/4.of the South Eastern Railway, which fact is not disputed.
33. The award of Rs. 1,33,740/- towards law years fee is also assailed in this appeal. The figure at first sight does seem high but it should not be forgotten that this was awarded in a claim which was for a sum of Rupees l,32,87,749/-. The Tribunal, it seems, has calculated the lawyers fee by taking recourse to the provisions contained in Rule 400 of the G.R. and C.O. (Civil), Volume 1, which lays down the method by which it is to be calculated in a contested civil suit. No doubt,the Railway Claims Tribunal is not a Civil Court, but admittedly is it an alternative forum under the Railway Claims Tribunal Act for dealing with such matters. Rule 29 of the Railway Claims Tribunal (Procedure) Rules, 1989 provides that the Claims Tribunal may in its discretion pass such orders in respect of costs incidental to any proceedings before it as it may deem fit. Guidelines do not seem to have been provided laying down the manner in which lawyers fee is to be assessed. So, if for the purpose of assessing the lawyers fee, the Tribunal has taken recourse to Rule 400 of the G.R. and C.O. (Civil), Volume I, its action cannot be faulted. Under this rule, the legal fee is to be calculated as under :
FeesAmount calculated as
a)Amount or value of claim decreed or dismissed in the original suit, not exceeding Rs. 5,000/-
61/4 per cent of value of the claim in suit.
Rs. 312.50b)Exceeding the Rs. 5,000/- but not exceeding Rs. 20,000/-
61/4 per cent on Rs. 5,000/-and3 per cent on the balance.
Rs. 450.00c)Exceeding Rs. 20.000/- not exceeding Rs. 50,000/-
as above on Rupees 20,000;- and 2 per cent on the balance.
Rs. 600.00d)Exceeding Rs. 50,000/-as above on Rupees 50,000/-and 1 percent on the balance.Rs. 1,32,377,49
TotalRs. 1,33,739.99 or say,Rs. 1,33,740/-
Under the circumstances, the award of Rs. 1,33,740/ - towards lawyers fee in a case where the claim involved is Rs. 1,32,87,749/- cannot, for the aforesaid reasons, be said to be arbitrary and without any basis.
34. In result, all the contentions of the learned counsel for the appellants having been negatived, this appeal is liable to be and is accordingly dismissed with costs.