Rajnikant and Co. Vs. Shipping Corporation of India Ltd. - Court Judgment

Excerpt:
- kalyan jyoti sengupta, j.1. the writ petition has been directed against shipping corporation of india being the effective respondents herein claiming for refund of the entire congestion charges including interest. admittedly, the claim in the writ petition is a money claim. in the writ petition the maintainability point has been raised. however, mr. bandyopadhya in his usual fairness does not wish to press the maintainability of the writ petition on the ground of alternative remedy and also on the ground of contractual transaction inasmuch as the writ petition was admitted by this court without any reservation. affidavits have been filed. the court, at the first instance, in exercise of its discretion thought it fit to be entertained. so it was entertained. therefore as on date the theory of alternative remedy is wholly misplaced now. coming to the merit of the case, it is the case of the writ petitioner that respondent/corporation was entrusted with certain cargoes to be carried from india to libya. while accepting this contract of carriage the respondent admittedly realised congestion surcharges along with freight and this position is admitted. the congestion charges was realised in view of the fact that there was congestion at the concerned port of discharge in libya. the writ petitioner had no alternative but to pay the same thinking that such congestion charges were justified as it was demanded. subsequently, it was discovered after the carriage is completed and goods were unloaded that there was no congestion and to that effect the authenticated document had been procured by the writ petitioner. such document has been annexed to the writ petition. the foundation of the writ petitioner's case is that since the congestion charges were realised in anticipation of facing congestion at the port of discharge and when there was no factual congestion there could not be any congestion charges and hence the amount realised should be refunded. the case of realisation and refund as advanced by the writ petitioner is quite sound apparently, yet while granting relief the court is to examine very many things. in the .year 1976, the petitioner paid the aforesaid congestion charges on mistake and such mistake was subsequently discovered on receipt of a document from the libya people in 1976 itself. on discovery, the petitioner demanded refund of the aforesaid amount. the shipping corporation has refused to refund the said amount in 1978 while replying to the letter of demand of the writ petitioner. since 1978 the petitioner wrote several letters and it was not replied.2. mr. majumdar on behalf of the writ petitioner contends that his client, all the time made correspondences with the respondents and waited for favourable decision or by way of rejection. so he could not come to the writ court earlier than 1994. the writ petitioner came to the writ court only when they received the government's letter of ministry of shipping corporation. therefore, there is no wilful delay and laches or acquiescence in filing the writ petition. hence, the claim made by the writ petitioner should be allowed with interest. mr. majumdar has placed the decision of the supreme court reported in : air2000sc671 and has drawn my attention to paragraph-14 thereof. he contends that his client was vigilant and his client should get equity in terms of the aforesaid judgment. he also contents that there is no defence so to say as against his client's claim for refund of the congestion charges. mr. bandyopadhyay contends that no relief should be granted in view of the fact that his client refused to refund in 1978, the writ petitioner did not come within three years therefrom. he also contends that the aforesaid judgment of the supreme court squarely applies here. mere writing unilateral letters to the respondents with no result does not save the limitation nor the same are suggestive of vigilant acts or diligent conduct on part of the writ petitioner. moreover, he contends that the commercial surcharge as part of freight was realised, a fortiorari the same relates to a contractual transaction, and further whether there was in fact, any congestion or not, is a disputed question of fact and the same needs trial. in the writ petition there is no material of impeachable character whereby the writ court can grant money relief. he contends that the writ petition should be and ought to be dismissed.3. having heard the respective contentions of the learned counsel, i find there is substance in argument of mr. h. bandyopadhyay when he contends that the petitioner's claim should not be granted because the petitioner could have come in the year 1978 itself or within three years from 1978. the aforesaid supreme court judgment categorically lays down that the limitation prescribed for the suit would be a guiding factor in deciding the question of money claim in the writ petition. mr. majumdar's submission is that the limitation could be saved by the vigilant acts of the writ petitioner is not acceptable to me in a money claim. the reasons being had the petitioner filed a suit instead of filing writ petition the suit court would not have entertained the claim as the claim would have been barred by limitation. there cannot be different law of limitation for granting same relief, for the writ proceedings. law of limitation applicable in case of entertaining a suit for recovery of money should also be applied while entertaining a money claim in the writ jurisdiction, otherwise there will be unreasonable discrimination and/or classification between two sets of litigants as far as limitation is concerned. if this discrimination is not removed then situation will be that a litigant filing suit would be bound by the rigour of limitation whereas for the selfsame relief the person filing writ petition will get away from the laws of limitation, this cannot be the rule of law or administration of justice. the constitution does not envisage to create unreasonable classification between two sets of litigants. i do not find any document in the writ petition that there are acknowledgements within the period of limitation. only the letters have been written by the writ petitioner and there is no document to suggest that there exists jural relationship in order to constitute acknowledgement in writing. the letter of the government dated 3rd september, 1992 being annexure 'g' cannot be considered to be an acknowledgement. moreover, it is the transaction between the statutory authority and writ petitioner. one cannot acknowledge on behalf of other persons unless he is expressly authorized to do so. therefore the aforesaid letter of the government in the year 1992 cannot help the writ petitioner. i hold that the petitioner cannot get any advantage simply because he has filed writ petition instead of filing the suit in order to get away from the provisions of the general laws of limitation. i hold that the provisions of article 137 of limitation act 1963 will be applicable following the guidance of the supreme court judgment (supra) in the writ petition whereby exclusive money claim would be enforced. as such, i am unable to grant any relief to mr. majumdar's client. so, the writ petition is dismissed. however, there will be no order as to costs.4. xerox certified copy, if applied for, shall be supplied to the parties on the usual undertaking.