Alok Sharma, J. - (1.) THIS civil misc. appeal has been filed against the order dated 15.05.1990 whereby the Railway Claims Tribunal Jaipur Bench (hereinafter 'the Tribunal') has dismissed a petition filed by the appellant -Company on the ground that the claim as laid before it was in the cross hairs of Section 78B of the Indian Railways Act 1890 (hereinafter 'the Act of 1890') and therefore not maintainable.
(2.) FOR facility of reference Section 78B of the Act of 1890 relevant for the determination of this appeal is reproduced hereinunder: "78B -Notification of claims to refunds of overcharges and to compensation for losses. -A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non -delivery of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf - (a) to the railway administration to which the animals or goods were delivered to be carried by railway; or (b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred; within six months from the date of the delivery of the animals or goods for carriage by railway: Provided that any information demanded or inquiry made in writing from, or any complaint made in writing to, any of the railway administrations mentioned above by or on behalf of the person within the said period of six months regarding the non -delivery or delay in delivery of the animals or goods with particulars sufficient to identify the consignment of such animals or goods shall, for the purposes of this section, be deemed to be a claim to the refund or compensation." Facts : The facts of the case are that the appellant -Company dispatched 5 racks of 4100 M.T. levy cement from its Banas siding to be carried and delivered at Thiyat Hamira Railway Station. The distance between two stations is stated to be only 511 KMs and the Railways alleged to had charged freight for distance of 946 KMs calculating the distance via Rewari. It was stated that because of this mistake in the calculation of the distance from the appellant -Company's Banas siding to Thiyat Hamira Railway Station, railway freight was charged in excess @ Rs. 21.44 per qtl. instead of the applicable rate of Rs. 13.11 per qtl. and paid under mistake. Consequently Rs. 3,69,775/ - was overpaid. This excess realisation was according to the appellant -Company on the face of it arbitrary, unauthorized and illegal and thus refundable by the Railways with interest.
(3.) ON service of notice of the appellant -Company's claim petition, the Railway administration contested the claim primarily on the ground that the petition was not maintainable under Section 78B of the Act of 1890 because the appellant -Company did not prefer any claim within six months from the date of the booking of the consignment or delivery or even payment in respect of the freight charged. It was stated that various railway receipts for the consignment in issue had been booked between 07.12.1985 and 11.02.1986 and delivery made soon thereafter. A notice for alleged realisation of excess freight was however sent on 17.02.1988 much beyond the six months prescribed limitation/bar under Section 78B of the Act of 1980 for a valid claim against the Railways.;