High Court · 2012

The learned Tribunal after hearing the parties directed the appellant to pay an amount of Rs,4,670/- as balance amount calculating Rs.950/- per quintal with an assessment of 35.43 quintals as short delivery and damage. The compensation am ount was worked out to Rs.33, 600.58. It was directed by the learned Tribunal t hat decreed amount shall be paid within 60 days from that day failing which inte rest @ 9% per annum shall be payable till payment. Heard Mr. U.K. Gowswami, learned Standing Counsel for the NF Railway, appearing on behalf of the appellant/Union of India. None has appeared on behalf of the re spondent. It is submitted by the learned Standing Counsel for the appellant that the chequ e was received by the claimant towards the full and final settlement of the clai m. The claimant accepted the cheque without any protest and therefore, it must be assumed in terms of Section 8 of the Contract Act that the claimant accepted the proposal by acceptance of the cheque. In support of his submissions, he has relied on the case of Bhagwati Prasad Pawan Kumar Vs. Union of India, reported in (2006) 5 SCC 311, wherein, it was held that in the absence of any pleading or evidence to establish that the encashment of the cheque was subsequent to the protest letters by the appellant, it is not possible to hold that by en-cashing the cheque the appellant had not adopted the mode of acceptance prescribed in t he letters of the Railways and in the absence of such evidence, it must be held that by en-cashing the cheque received from the Railways, the appellant accepted the offer by adopting the mode of acceptance prescribed in the offer of the Rai lways. On perusal of the impugned judgment, it appears that the Railways had led no evi dence to show that the intention of the applicant was to accept the cheque in fu ll and final settlement of his claim. There is nothing to show that the claiman t en-cashed the cheque and thereafter filed a claim petition before the Tribunal . In the case of Union of India Vs. M/s Rameshwarlall Bhagchand, reported in AI R 1973 GAU 111, wherein, it was held that the cheque in favour of the claimant w as sent in full and final settlement of the claim. The consignees encashed the c heque but subsequently communicated to the General Manager by their letter that the cheque received satisfied only a part of the claim made by them and that the balance amount should be remitted. The consignee after encashing his cheque on the terms offered by the General Manager, it would be assumed that the cheque wa s encahsed on the terms offered by the General Manager and only later is the con signee changed its mind. It appears from the impugned judgment that the respondent contested the claim ap plication on the point of limitation under Section 17 of the Railway Claims Trib unal Act that the learned Tribunal held that the cause of action arose only when the payment was made by the Railway, which was acceptable to the applicant and the claim application was filed within the period of limitation. In the case of Union of India and Another Vs. M/s Gangaram Bhagwandas, reported in AIR 1977 MP 215, wherein, it was held that during pendency of the proceeding, a cheque in favour of the claimant was issued with covered letter to the effect that it was sent in full and final settlement of the claim. Even after receivin g the cheque, the claimant/respondent prosecuted the suit for the balance of the amount. It was held that the Railway had leg no evidence to show that the inte ntion of the plaintiff was to accept the cheque in full and final settlement of his claim. Herein also, there is no evidence that the claimant received the cheque towards the full and final settlement of the claim. After acceptance of the cheque, he filed the claim petition before the learned Tribunal. No evidence was adduced t hat the cheque was encashed and thereafter, the claim application was filed by t he applicant. In view of the above, I find that judgment and order passed by the learned Tribu nal, needs no interference by this Court and accordingly, this appeal is dismiss ed. No costs.