LexUNION OF INDIA versus M/S. MODI INDUSTRIES LTD.
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B c D E F G H 8311 UNION OF INDIA v. M/S. MODI INDUSTRIES LTD. March 30, 1973 (A, N. G!lOVBll AND K. K, MATHEW, JJ,) /mlian Rai/wC<ys Act, 1890 Ss. 26 and 41-Compku'nt In rtsptct of past· dues cannot be made under s. 41 before Railway Rates Trlbuna!-In •uch cases s. 26 of Act is not a bar to a suit In civil court and question of reasonableness of charges can be gone Into by civil court. By agreement dated July 4, 1933 the respondent company was liable. to pay charges for a railway siding at agreed rates. Clause 23 of the agreement laid down that it shall be open to the Railway Administration on giving six months notice of sum. ihtent, to revise the said charges. Clause 24 related to t\?rmination of the agreement in the event of non- paxment of dues within one month Cl[ demand. On March 26, 1949 the railway authorities informed the respondent that the rates were proposed to be increased with effect from April l, 1949. The respondent objected to the increase as being against clause 23 of the agreement. By a subse- quent letter in September 1951 the Divisional Superintendent of the Rail- way asked the respondent to pay the charges at much higher rates. There was prolonged correspondence between the parties without the respondent. agreeing to pay the higher rates demanded. On September 29, 1955 the- Divisional Engineer addressed a letter to the respondent proposing revision of the siding charges with effect from April l, 1956 after the expiry of six months according to clause 23 of the agreement. These proposed charges were much lower than the charges demanded by the earlier letters. On May 17, 1957 the General Manager of the Railway sent a letter to the plaintiff for payment of Rs. 93,981-8-0 in respect of the period December I 19'49 to March 31, 1956. It was intimated that on failure to make the said payment within one month the supply of wagons would be stooped and steps to determine the agreement would be taken. In May 1957 the respondent served a notice under s. 80 Of the Code of Civil Procedure and· thereafter filed a suit. The trial .court partly decreed the suit. The High Court. decreed it in toto. In the appeal by certificate to this Court, filed on behalf of the lJnion of India, the· questions that fell for. consideration were : (i) whether the civil court had jurisdiction in view of Ss. 26 and 41 of the Indian Railways Act, 1890, to detennine the reasonableness of the charges: (ii) whether the courts below if they had jurisdiction were justified in holding the charges to be unreasonable. Dismissing the appeal, HELD : (i) From the facts it appeared that the rates are being rev is-· ed and actually enhanced, but then the matter was kept pending and there was exchange of correspondence and discussion between the parties from time to time. No effort was made to enforce the demand made in the various letters and the· plaintiff was allowed to make payments according to the rates originally a~reed. It was only in May 1957 that the respon- dent wa. really threatened to mak<: payment of the outstanding amount calculated at the revised rates on pain of the supply elf wagons being stopped and the agreement being determined. According to the decisions of this Court it was hardly open to the respondent to file a complaint under s. 41 of the Act with regard to the 836 SUPREME COURT REPORTS (1973] 3 s.c.R. nasonableness or otherwise of the rates and charges which had already llecome due and payable. The plaintiff had no grievance whatsoe\·er with ·regard to the charges which had been fixed with effect from April 1, 1956. By means of the letter dated September 29, 1955, and therefore there ·was no question of its filing a complaint with regard to those charges. Its grievance was confined only to the amount which was being demanded ·On the basis of the revised enhanced rates between the period December t, 1949 and March 1, 1956. If that amount had actually been realised by ·the railway authorities the plaintiff could only file a suit for its refund and could not have laid a complaint under s. 4 J of the Act before the Railway Tribunal. By analogy the plaintiff could not have filed a com- ·plaint with regard to the past dues as the Railway Tribunal could not have given any relief in respect thereof 'following the law laid down by this Court. In this view of the matter apart from other questions involving the validity of clause 23 of the agreement as also
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