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CASE NO.:

Appeal (civil) 150-151 of 2001

PETITIONER:

M/s Bhagwati Prasad Pawan Kumar

RESPONDENT:

Union of India

DATE OF JUDGMENT: 25/05/2006

BENCH:

B.P. SINGH & R.V. RAVEENDRAN

JUDGMENT:

J U D G M E N T

B.P. SINGH, J.

These two appeals by special leave have been preferred by the

appellant against the judgment and order of the Gauhati High Court in

MA (F). No.180 of 1996 dated May 19, 2000 and the order passed in

Review Petition No.85 of 2000 dated July 28, 2000. The High Court

by its judgment and order impugned dismissed the appeal preferred by

the appellant against the order of the Railway Claims Tribunal,

Guwahati Bench dated August 30, 1996 in Application No.915 of

1993. The review petition preferred against the judgment and order of

the High Court was also rejected by order dated July 28, 2000.

The factual background in which the dispute arose is as

follows:-

Two consignments of iodised salt were booked in favour of the

appellant. The first consignment consisted of 767 bags and the second

744 bags. These consignments were not delivered. The appellant,

therefore, lodged two claims dated April 26, 1991 claiming the value

of the said goods, namely Rs.53,264/- and Rs.51,686/- in respect of

the two consignments. By letters dated April 7, 1993 (despatched in

August, 1993) the Railways admitted the claims only to an extent of

Rs.9,111/- and Rs.9,032/- and enclosed two cheques in favour of the

appellant for the sum of Rs.9,111/- and Rs.9,032/- in respect of the

two claims. Both the cheques were dated July 27, 1993. The letters

contained the following condition :-

"In case the above offer is not acceptable to you, the

Cheque should be returned forthwith to this office:

failing which it will be deemed that you have accepted

the offer in full and final satisfaction of your claim.

The retention of this cheque and/or encashment thereof

will automatically amount to acceptance in full and final

satisfaction of your above claim without reason and you

will be estopped from claiming any further relief on the

subject".

On receipt of two letters alongwith the two cheques, the

appellant wrote to the Railways two identical letters of August 20,

1993 stating that the claims were placed under PROTEST and could

not be accepted and that the balance amount should be remitted within

15 days. We extract below one of the letters dated August 20, 1993:-

"We regret to inform you that our above noted claim has

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been settled for Rs.9111/- instead of Rs.53284/- the

claimed amount. The same is therefore placed under :

PROTEST : and cannot be accepted. Please therefore

remit the balance amount to us within a period of 15 days

from the date of receipt of this letter, failing which, we

shall be compelled to lodge a Civil suit against the Rly

for recovery of the balance amount. Please treat this as

most urgent".

It is not in dispute that the cheques were encashed, though the

exact date of encashment is not apparent from the record. It is also

not disputed that the balance amount claimed by the appellant was not

paid by the Railways. In these circumstances the appellant filed a

claim application before the Railway Claims Tribunal, Guwahati

Bench for Rs.21,151/- and Rs.20,258/- (after adjusting the freight

payable namely Rs.23,022/- and Rs.22,396/-) in all Rs.41,409/- as

balance compensation in regard to the two invoices.

Before the Railway Claims Tribunal the Railways pleaded full

and final settlement since the cheques were not returned and were in

fact encashed. The Tribunal took the view that there was no scope for

the applicant to treat the amount as part payment by making a protest

and if the applicant found the amount to be insufficient he should have