A claim for refund of differential freight arising from a breach of contract of carriage by the Railway Administration is not a claim for refund of overcharge and does not require a notice under Section 78-B of the Indian Railways Act, 1890.

P. C. NAIK, J.

( 1 ) THIS is an appeal under S. 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 whew the wagons are placed for the purpose of unloading.

( 4 ) IT is the plaintiffs case that the shortest available route from Visakhapatnam to Rourkela is via Viajaynagaram-Titlagarhsambalpur-Jharsuguda-Rourkela covering a distance of 667 kilometres. The alternative, but longer and dearer route is via Vijaynagaram-Khurda Road-Kharagpur-Tatanagar-Chakradharpur-Rourkela covering a total distance of 1082 kilometres. However, in view of a notification issued under S. 27-A 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 booking 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 S. 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 S. 80, C. P. C. was sent to the defendants and thereafter, the suit was filed in the 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 S. 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 oc