Page No.# 1/23

GAHC010036182019

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : MFA/142/2019

Union of India, Represented by

The General Manager

North East Frontier Railway

Guwahati, Maligaon

…Appellant

-VERSUS-

M/s Numaligarh Refinery Ltd.

Registered Office at 122 A, G.S Road

Christian Basti, Guwahati 781005

And marketing and BD office at NEDFI House

4

th

Floor, Dispur, Guwahati 781005

…Respondent

Advocates for the appellant : Mrs. Uma Chakraborty

Advocates for the respondent : Ms. M Sharma

With

MFA 82/2019

M/s Numaligarh Refinery Ltd.

Registered Office at 122 A, G.S Road

Christian Basti, Guwahati 781005

And marketing and BD office at NEDFI House

4

th

Floor, Dispur, Guwahati 781005.

Page No.# 2/23

-VERSUS-

Union of India, Represented by

The General Manager

North East Frontier Railway

Guwahati, Maligaon

Advocates for the appellant : Ms. M Sharma

Advocates for the respondent : Mrs. Uma Chakrabort

BEFORE

HON’BLE MR. JUSTICE SANJEEV KUMAR SHARMA

Date on which judgment is reserved : 10.02.2026

Date of pronouncement of judgment : 24.03.2026

Whether the pronouncement is of the : No.

operative part of the judgment ?

Whether the full judgment has been : Yes

pronounced?

JUDGMENT & ORDER (CAV)

(Sanjeev Kumar Sharma, J)

Heard Mrs. Uma Chakraborty, learned Special Railway counsel assisted by

Ms. M Chattarjee, appearing for the appellant (in MFA 142/2019) and

Respondent (in MFA 82/2019), hereinafter ‘Railways’. Also heard Ms. M Sharma,

learned counsel for the appellant (in MFA 82/2019) and respondents (in MFA

142/2019), hereinafter ‘NRL’.

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2. These two appeals, MFA 142/2019 filed by the Union of India (Railways)

against the M/s Numaligarh Refinery Ltd. (NRL) and MFA 82/2019 filed by M/s

Numaligarh Refiner Ltd. (NRL) against the Union of India (Railways), under

Section 23 of the Railway Claims Tribunal Act, 1987 arises from the Judgment &

Order dated 30.11.2018, passed by the learned Railway Claims Tribunal in Claim

Application. No. OA-III-32/2016and the common order dated 21.10.2016 passed

in Misc. Appl. No. 17/2016.

3. The case of the claimant before the learned Tribunal may be summarized

as follows:-

The applicant NRL booked petroleum products namely MS, SKO, HSD, etc.

for carriage from Numaligarh Refinery Siding (NMGS) to different

destinations during the period April 2005 to July 2009 under 2532

numbers of Railway Receipts (details stated in the claim application) on

payment of all Railway freight and Siding Charges as demanded at the

time of booking of the consignments. According to the applicant, the

collection of siding charges amounting to Rs.2,98,22,483/- by the booking

railway is illegal. This mistake, the Railways admitted after about 8/9 years

and dis-continued charging of so-called excess distance of 9 km vide their

letter no.C/402/RD/276/Pt.(Loose) dated 11.11.2008 and letter no

C/402/RD/276/Pt. dated 08.07.2009. The CGS/NMGS has also verified,

certified and clarified vide certificate dated 01.01.2013 regarding

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overcharging of freight on account of so-called Siding Charges. However,

the Railway rejected the claim of the applicant on the ground that the

notice served under Section 106 of the Railways Act, 1989 (Old Act -

Section 78B) was time barred. In the instant case, the booked goods were

loaded from NMGS (Numaligarh Refinery Siding), which is served by NMGY

(Numaligarh) Railway Station. The booking railway collected Siding

Charges as well as 09 km Through Distance Charges i.e., two charges for

one and the same Railway service. This fact was pointed out in a joint

meeting with high Railway officials of N. F. Railway on 10.02.2001. From

2001 onwards, it submitted several reminders and even made personal

representation to Headquarters and Divisional Office of N. F. Railway and

the last reminder submitted was on 17.07.2008. After lapse of about 8

years, the office of CCM (Rates), N. F. Railway issued a letter bearing

no.C/402/RD/276/Pt.I(Loose) dated 11.11.2008 clarifying "....... As per

this office Goods Circular no.92/2001 dated 23.11.2001 Para-2, when the

placement of the rake is made by reversing the engine and pushing the

rake into the siding, the system of charging on through distance basis will

not be applicable. In such case, shunting charges should be levied as per

trip time basis....”. On the basis of N. F. Railway's letter dated 11.11.2008,

it submitted their claims vide claim letters dated 01.12.2008, 23.12.2008

and 22.11.2008 claiming refund of total amount of Rs.5,04,22,520/-,

which was overcharged on account of charging freight on higher distance

i.e., 9 kms, Thereafter, the office of CCM (Rates), N. F. Railway again after

a lapse of 10 months issued another letter bearing no.C/402/RD/276/Pt.

dated 08.07.2009 clarifying that 'Railway will realize freight on through

distance basis adding 09 kms, but siding charge will not be levied on the

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basis of trip time. However, in sidings where train engine is used for

shunting on customer's account, shunting charge should be calculated for

the total time of availability of the train engine at the siding'.

The Railway's letter dated 08.07.2009 shows that Siding Charges are

not applicable on the goods booked during the period April 2005 to July

2009. CGS/NMGS having certified vide certificate dated 07.01.2013 that

Rs.2,98,22,483/- on account of Siding Charges is refundable. Based on

this, the applicant accordingly amended their claim and requested the

Railways to refund the same with interest @ 12% per annum. As regards

notice, the applicant averred that the limitation period of claim notice

under Section 106 of the Railways Act, 1989 (Old Section 78B) has to be

counted and computed from the date of issue of N. F. Railway's above

stated letters dated 11.11.2008 and 08.07.2009 and because of the fact

that the matter regarding freight overcharges was already pointed out to

the Railway in their joint meeting conducted on 10.02.2001 and also in

view of Hon'ble Supreme Court's judgement dated 05.02.2004. The

applicant is a consignor and paid all Railway freight at the time of booking

and as such holds legal tile to claim refund of freight overcharges. It is a

Government of India undertaking organization, trading in petrol and

petroleum products and most of their trading and transportation

requirement are very much dependent on the Indian Railways.

4. The Railways filed written statement resisting the claim of the applicant.

In the written statement it averred that the Railway Claims Tribunal does not

have the jurisdiction to entertain the claim in view of the specific bar laid down

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under Section 43 of the Railways Act, 1989. While deciding the miscellaneous

petition for condonation of delay, the only issue before the Hon'ble Court was

'Whether there was sufficient explanation of the delay?' It is settled provision of

law that the assignment of a new number to the original application would come

only after the delay is condoned and as such the issue relating to 'validity &

sufficiency of notice under Section 106' would come only after the original

application comes into existence. So the provision of Section 11 of the CPC i.e.,

'Res judicata' has no application in the fact and circumstances of the case. The

alleged notice under Section 106 are time barred and hence not a valid notice

as per provisions of Law and Rules. Besides, the alleged notices were not

specific in respect of RR no., originating and destination station and date of

booking. As per Section 74 of the Railways Act, 1989, the right and liability over

the consignment passes to the consignee or endorsee on delivery of Railway

Receipts and it is neither the case of the applicant that the consignment is yet

to be delivered nor the applicant is an unpaid vendor, and as such the applicant

does not have the right to claim refund of alleged freight overcharge. The claim

of the applicant that the CGS/NMGS had worked out the alleged overcharge to

the tune of Rs.2,98,22,483/- vide certificate dated 01.01.2013 is not correct.

The fact remains that the applicant, after receipt of the summons from the

Hon'ble Court, had made an enquiry into the alleged certificate/statement and

the competent authority had informed vide letter dated 03.10.2016 addressed

to SCM/CT/HQ to the effect that no such record regarding statement showing

the details of the freight refund for the period 2007/2008 and details of refund

of freight made against erroneously charged rate on chargeable distance to

various location ex. NMGS are found at present. Hence the respondent denied

the authenticity/correctness of the alleged certificate/statement dated

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01.01.2013 under the provisions laid down under Rule 15-B of the Railway

Claims Tribunal (Procedure) Rules, 1989. In terms of Rates Goods Circular

no.92/2001 dated 23.11.2001, freight charges on through distance basis i.e., 9

km were levied up to the buffer end/furthest point on all the consignment

booked from Numaligarh Refinery Project Siding (P) BG to different destination

and siding charges were also collected as per provisions laid down under Rule

2512 of the IRCM Volume II, which lays down that in addition to other charges,

the siding charge can be collected by the railway and as such the freight

charges collected were legal and valid. The contents of the letter dated

11.11.2008 is neither clarification nor any direction to discontinue to collect

charge for a distance of 9 km, rather a direction to strictly follow the instruction

as laid down under Rates Goods Circular no.92/2001 dated 23.11.2001 which

the railway authority had been following and as such the said letter is not

relevant for the just decision of the case. That the competent authority had

superseded all the earlier instructions vide Rates circular no.14 of 2009,

circulated vide Rates Circular Goods No.21 of 2009 dated 25.02.2009 and

accordingly instructions were communicated vide railway's letter dated

08.07.2009. Moreover, this circular does not have the retrospective effect and as

such the freight collected by railway was legal and correct. The CGS/NMGS has

clarified the method of placement of BTPN Wagons at the siding vide his letter

dated 21.10.2016, which is very much relevant for the just decision of the case.

As per said statement, the power was detached at the entry point/gate of the

siding and then the power was reversed and the entire wagons were pushed

back to the Gantry. It is further averred that the applicant failed to serve the

statutory notice under Section 106 of the Railways Act which are statutory

provisions and the same shall prevail over any of the circular/s issued by the

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competent authority. The Railway Board vide its clarificatory circular issued

under Memo no.TC-IV/2007/RP/1 dated 22.02.2010 has clarified the issue

regarding time barred claim to the effect that unless the statutory notice under

Section 106 of the Railways Act is served in time, no claim for refund can be

entertained on merit.

On the basis of the pleadings of the parties, the following issues

were framed for determination:-

1. Whether this court has jurisdiction to decide the claim

application?

2. Whether the valid notice issued by the claimant?

3. Relief and costs?

Neither party adduced any oral evidence, but submitted their

respective documents. After perusal of the record and hearing arguments

to both sides, the learned tribunal allowed the claim of the claimant by the

impugned Judgment & Order dated 30.11.2018, and passed the following

order:

“I. Respondent is directed to re-verify all the Railway Receipts,

which are mentioned in the claim application, the number of rakes,

rate as well as the amount paid under the cash remittance details

given. Subject to verification of these calculations, the respondent is

directed to work out the Siding Charges paid by the applicant, and

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refund the same for the period of Railway Receipts specified in the

claim application.

II. The respondent is directed to refund the Siding Charges paid by

the applicant alongwith simple interest @ 6% (six percent) per

annum from the date of condonation of delay in filing claim

application i.e., 21.10.2016 till the date of judgement. Thereafter,

after expiry of 90 days from the date of judgement, if the

respondent fails to pay the amount to the applicant, interest @ 9%

(nine percent) shall be paid till the date of payment. In addition to

this, respondent is also directed to pay the proportionate application

fee Rs.1,51,578/- (Rupees one lakh fifty one thousand five hundred

seventy eight only) and Legal Practitioner's Fee of Rs.3,000/-

(Rupees three thousand only). The Application Fee and Legal

Practitioner Fee have been calculated on Rs. 2,98,22,483/-, which

the applicant claims to have paid as Siding Charges to the

respondent railway. If the respondent, after verification, finds that

the amount paid by the applicant on Siding Charges is less than the

claimed amount, the respondent can recalculate the Application Fee

on the said amount and pay to the applicant.

III. With this observations and directions, this original application

stands disposed of accordingly.

5. Prior to that, by an order dated 21.10.2016 passed in Misc. Appln. Nos.

9/2016, 10/2016, 11/2016, 12/2016, 13/2016, 14/2016 & 17/2016, the delay in

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preferring the claim was condoned by the learned Claims Tribunal.

6. Being aggrieved, the Railways have preferred the instant appeal being

MFA 142/2019, whereas respondent herein i.e. M/s Numaligarh Refinery Ltd.

(NRL) has also preferred a cross appeal being MFA 82/2019 seeking

enhancement of interest.

7. Let me first take up the challenge to the common order dated 21.10.2016

referred to hereinbefore, whereby the delay in preferring the claim application

by M/s Numaligarh Refinery Ltd. was condoned. Although the said order was

passed on 21.10.2016, no challenge to the same was made at that time. The

Railway Claims Tribunals Act provides as follows:

“23. Appeals.-(1) Save as provided in sub-section (2) and

notwithstanding anything contained in the Code of Civil Procedure,

1908 (5 of 1908), or in any other law, an appeal shall lie from every

order, not being an interlocutory order, of the Claims Tribunal, to the

High Court having jurisdiction over the place where the Bench is

located.

(2) No appeal shall lie from an order passed by the

Claims Tribunal with the consent of the parties.

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(3) Every appeal under this section shall be preferred

within a period of ninety days from the date of the order

appealed against.”

8. From the above, it is evident that the challenge to the aforesaid order

dated 21.10.2016 is hopelessly barred by time, inasmuch as there is no

explanation for not having preferred the appeal against the said order within the

time frame stipulated by the statute and consequently, the said challenge stands

repelled.

9. The Railways have submitted written arguments wherein, inter alia, it is

stated that since the respondent/applicant failed to serve the statutory notice

u/s 106(3) of the Railways Act, 1989, the claim of the respondent/applicant

cannot be entertained. Further, the provisions laid down u/s 106(3) of the

Railways Act, 1989 are a statutory provision and the same shall prevail over any

of the circulars issued by the competent authority. Moreover, the Railway Board

vide its above clarification issued under Memo No. TC-IV/2007/RP/1 dated

22.02.2010 had clarified the issue regarding time-barred claim to the effect that

unless the statutory provision u/s 106(3) of the Railways Act, 1989 is served in

time, no claim for refund can be entertained on merits.

10. As stated earlier, the learned RCT framed the following three issues:

“1. Whether this court has jurisdiction to decide the claim

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application?

2 Whether the valid notice issued by the claimant?

3. Relief & Cost.”

11. It is submitted that the learned RCT had taken the issue Nos. 1 & 2,

together for discussion but on a plain reading of the discussion and decision of

the learned RCT, it transpires that the learned RCT decided the issues in favour

of the claimants without going through the statutory provisions of law and the

rules, and by ignoring the various Railway Board’s circulars.

12. It is further submitted that although Section 106(3) of the Railways Act

provides for issuance of notice, the question of sufficient notice though framed

as an issue was not at all discussed in the impugned judgment.

13. Section 106(3) of the Railways Act provides as follows:-

“(3) A person shall not be entitled to a refund of an overcharge in

respect of goods carried by railway unless a notice therefore has

been served by him or on his behalf to the railway administration to

which the overcharge has been paid within six months from the date

of such payment or the date of delivery of such goods at the

destination station, whichever is later.”

14. It is submitted that the learned Claims Tribunal did not adequately discuss

the point of the applicability of statutory notice under Section 106(3) of the

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Railways Act, 1989 in the instant case.

15. Per contra, it is submitted on behalf of the M/s Numaligarh Refinery Ltd.

that such excess payment of Siding Charges Rs. 2,98,22,483/- by the booking

railway is an illegal collection which was admitted by the Appellant-Railways

after a lapse of 8/9 years by issuing a Clarification letter dated 11.11.2008

regarding discrepancy upon the enquiry made by the Respondent-Applicant

made during Trip Trial in the Record Notes conducted jointly by the Appellant-

N.F. Railway and the Respondent Claimant NRL officials between 10.02.2001 –

11.02.2001 and therefore the limitation period of claim notice under Section 106

of the Railways Act, 1989 has to be counted from the date of issue first raised

by the Respondent-NRL in the Record Notes during Trip trial dated 10.02.2001

or from the date of issue of the two clarification letters by the N.F. Railways

being clarification letter dated 11.11.2008 and 08.07.2009 because of the fact

that the matter regarding excess payment of freight or duplication of payment

was already pointed out to the Appellant/Railway in their joint meeting

conducted on 10.02.2001.

16. Further, the requirement of giving notice under section 106(3) Railways

Act, 1989 within six months from the date of such payment or the date of

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delivery of such goods at the destination station, whichever is later, is only in

the cases of overcharge by the Railways but the present case is not a case of

overcharge but is one of illegal realization of freight in view of the law laid down

by the Hon'ble Supreme Court in the case of Union of India (UOI) & Others

vs. West Coast Paper Mills Ltd. & Others, reported in AIR 2004 SC 3079

and a similar observation was also made by the Hon'ble Supreme Court in the

case of Hindustan Petroleum Corporation Limited vs. Union of India,

decided on 14.12.2017.

17. In West Coast (supra), it was held as follows:-

“19. The term overcharge is not defined in the Act. In its dictionary

meaning "overcharge" means "a charge of a sum more than as

permitted by law" [see, The Law Lexicon, P. Ramanatha Aiyar, 1997

Edition, Page 1389]. The term came up for the consideration of the

High Court of Gujarat in Shah Raichand Amulakh (D) by his heir v.

Union of India and Ors.MANU/GJ/0109/1970:(1971)12GLR93. Chief

Justice P.N. Bhagwati (as His Lordship then was) interpreted the

term by holding that "Overcharge" is not a term of art. It is an

ordinary word of the English language which according to its plain

natural sense means any charge in excess of that prescribed or

permitted by law. To be an overcharge, a sum of money must

partake of the same character as the charge itself or must be of the

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same genus or class as a charge; it cannot be any other kind of

money such as money, recovered where nothing is due. Overcharge

is simply a charge in excess of that which is due according to law.”

18. The aforesaid was also followed in the case of Hindustan Petroleum

Corporation Limited vs. Union of India (UOI), MANU/SC/1743/2017.

19. In Union of India vs. M/s Indian Oil Corporation Limited, reported

in 2024 INSC 242, it was held as follows:-

“80. Section 106 of the Act, 1989, sub-section (3) specifically uses

the words "paid' and "date of payment". This clearly fortifies the

above observations, that for a sum to be an "overcharge" within the

meaning of Section 106(3) of the Act, 1989, it must be an

overcharge on the date when such sum was paid. If on the date

when the payment was made, the sum in question was not an

overcharge, it will not become an 'overcharge" due to intervention

of subsequent events at-least in terms of Section 106 of the Act,

1989.

87. For illustration, say, goods were booked and freight was charged

at the rate of Rs. 100 per km, and accordingly freight was paid.

Subsequently, 7-months later the Railways decides as a matter of

policy to reduce it to Rs 50 per km with retrospective effect. Now

though the reduction is taking place retrospectively, but intimated 7-

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months after when the payment was made, and further even-

though, this is an overcharge (because Rs. 50 has been paid in

excess of what was payable), it would not mean that in order to

seek refund of the excess sum, the notice ought to have been made

within 6-months as per Section 106(3) of the Act, 1989, when the

payment was made. Such a case, although of an overcharge, cannot

be said to be one of"overcharge" within the meaning of Section

106(3) of the Act, 1989, thus no notice of claim would be required

in such cases.

98. Thus, from the above discussion, it is abundantly clear that

there exists a very fine & clear distinction between an overcharge

and an illegal charge, and that Section 106 sub-section (3) of the

Act, 1989 only applies when the claim is for a refund of an

overcharge, for all other charges, be it illegal or not, the said

provision will have no application whatsoever.” (emphasis

mine)

20. It had been submitted on behalf of the Railways that the alleged dispute is

only in respect of collection of siding charges. As per provisions laid down under

Rule 2512 of the IRCM Volume II, the Railway is authorised to collect siding

charges in addition to other charges and hence, collection of "through distance"

and "siding charges " both are valid and having the authority of law. In view of

the above, the siding charge can be collected by the Railway under Rule 2517 of

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the IRCM Volume II and as such, the freight charges collected by Railway

Administration for dealing with the traffic at the sidings from the siding users,

the Respondent/applicant, were legal and valid. However, by ignoring the said

statutory provision, the Ld. RCT had erroneously came to a conclusion that the

siding charges so collected by the Railway were illegal.

21. In the considered view of this Court, if the siding charges levied and

collected by the Railways are contended to be legal as well as valid, there

cannot be any question of “overcharge”. In other words, “overcharge” would

clearly mean a charge in excess of the prescribed rates. There having arisen no

issue that what was charged by way of siding charges was in excess of the

prescribed rates for siding charges, the said charge can never answer to the

definition or description of “overcharge” and must, in view of the decision in

M/s Indian Oil Corporation Limited (supra) be regarded not as

“overcharges”, be it illegal or not, and therefore, the provision of Section 106(3)

of the Railways Act will evidently not be applicable.

22. As contended on behalf of the NRL, Railway had admitted the refundable

amount whether it was the collection of freight money through distance basis by

adding 09 Km i.e. Rs. 5,04,22,520/- or collection of Siding Charges Rs.

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2,98,22,483/- through CGS/NMGS Certificates annexed with the Claim

Application marked as AnnexureA8-20, A-21-65 and A-66-78 and CGS/NMGS

Certificate dated 07.01.2013 marked as Annexure-A81.

23. The Railway first admitted the total refundable amount Rs. 5,04,22,520/-

which was raised by the Respondent-NRL after the receipt of the railway

clarification letter dated 11.11.2008 which was issued after the lapse of 08 years

from the date of raising such duplicity of payment during Trip Trial conducted on

10.02.2001. Later the Railway had corrected their action by issuing another

clarification letter dated 08.07.2009 wherein it is stated that the freight through

Distance basis by adding 9 Km will be levied and Siding Charges will not be

levied. Accordingly, the CGS/NMGS issued another certificate dated 07.01.2013

admitting the refundable amount of Rs.2,98,22,483/- which was also vetted by

the CGS/NMGS Sri Pradip Kumar Singh duly attested by the Asstt. Commercial

Manager, N.F. Railway, Tinsukia dated 02.05.2017.

24. Further, RTI letter dated 27.03.2017 issued by the CGS/NMGS Sri Pradip

Kumar Singh had enclosed two Annexures and out of them,/ Annexure-2 also

reaffirmed that the amount Rs. 2,98,22,483/- collected on account siding

charges from booking station NMGS from April 2005 to July, 2009 which also

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tallies with the Certificate issued by then CGS, NMGS, Sri. J.P. Sunuwal on

07.01.2013.

25. Therefore, the remittance details furnished by then CGS, NMGS, Sri. J.P.

Sunuwal on 07.01.2013 and thereafter through CGS/NMGS Pradip Kumar Singh’s

reply through RTI letter dated 27.03.2017 enclosed therewith (Annexure-2)

creates a strong presumption that the said certificate is an authentic document,

as rightly contended by NRL. The Railways cannot disprove the authenticity of

the aforesaid documents by merely stating that the same could not be found in

the official records at present.

26. As per the written submissions of the appellant/Railways (para 11A),

Rules 2512 & 2517 of the IRCM Vol. II are enabling provisions authorizing the

Railways to levy siding charges. But in view of the express admission on the

part of the appellant Railways as referred to above, it is clear that the Railways

have chosen not to levy siding charges by resorting to the said enabling

provision. That being the case, I find no force in the aforesaid submissions on

behalf of the Railways.

27. It was also contended on behalf of the Railways in their written

submissions that the competent authority of Railway had superseded all the

earlier instructions that relates to collection of siding and other charges vide

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rates Circular No. 14/2009 dated 06.02.2009 circulated vide Rates Circular No.

21/2009 dated 09.03.2009 and further communicated vide Railways’ letter dated

08.07.2009. Hence, in such situation, the Railway authority ought to have

complied with the said direction. However, by ignoring the said contentions, the

learned RCT had erroneously come to a conclusion that the siding charges so

collected by Railway was illegal.

28. There is no force in the aforesaid contention either since the letter of

clarification dated 08.07.2009 regarding non-application of siding charges was

issued subsequent to the circular dated 06.02.2009 & 09.03.2009, the question

of the said circulars negating the aforesaid letters dated 08.07.2009 and

certificate dated 07.01.2013 does not arise. In any case, the Railways cannot be

permitted to abjure responsibility for the actions of its own authorized officials

by resorting to such a stand.

29. As far as the appeal/cross-appeal filed before the RCT is concerned, the

same relates to enhancement of the interest granted. The same issue arising

out of a similar application by the cross appellant (NRL) was negated by the

learned Tribunal which was carried in appeal being MFA 12/2009 which was

dealt with by a Coordinate Bench of this Court in the following manner :

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“22. Regarding interest, it appears that the original application filed by

the appellant before the Tribunal was allowed and the respondent was

directed to pay the claimed amount along with simple interest @6% per

annum from the date of filing of the original application till the date of

judgment. It was further ordered that if the respondent failed to make

payment within 90 days of the judgment, the amount shall carry interest

@9% per annum till realization.

23. Aggrieved, the cross appellant preferred a review petition before the

Tribunal contending that interest should be awarded from the date of last

payment of freight i.e., 28.03.2008 at the rate of 12% per annum by

relying upon two judgment: (i) Judgment dated 18.09.1987 passed in F.A.

No. 1/1987 (Union of India vs. Food Corporation of India); and (ii)

Judgment dated 29.06.2012 passed in MFA No. 80/2002 (M/s Jaypee

Rewa Cement vs. Union of India). The Tribunal, however, rejected the

review petition holding that: (a) there was no provision in the Railway Act,

1989 or Railway Claims Tribunal Act, 1987 for payment of interest; (b)

interest was awarded only in exercise of inherent powers under Order 44

of the RCT Rules; and (c) no error apparent on the face of record existed

to justify a review under Section 152 CPC.

24. Learned counsel for the cross appellant has reiterated her earlier

submissions before this Court, seeking enhancement of interest from 9%

to 12% per annum, and also for grant of interest from the date of last

payment of freight i.e., 28.03.2008.

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25. Having considered the submissions and the materials on record, this

Court finds no infirmity in the order dated 25.03.2019 passed in Review

Application No. 51/2018, arising out of Original Application No. III-

27/2016 in respect of the cross appellant. The judgments relied upon by

the appellant arose out of different factual contexts and do not govern the

present case. The Tribunal, in exercise of its discretion, has already

granted interest in the absence of specific statutory provision, which

cannot be said to be illegal or arbitrary. Further, once the Tribunal has

consciously exercised its discretion while granting interest, the same

cannot be re-agitated under the garb of review or in appeal unless

perversity or patent illegality is shown.

26. In the present case, the Tribunal has rightly held that there was no

error apparent on the face of record. The interest granted @6% per

annum till judgment and thereafter @9% per annum on default of

payment beyond 90 days cannot be said to be inadequate or contrary to

law.

30. This Court is in complete agreement with the aforesaid finding of the

learned Coordinate Bench.

31. Consequently, the cross appeal is devoid of merit and stands dismissed.

32. For the reasons stated above:

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· MFA No. 142/2019 filed by the Union of India (Railways) is dismissed.

· MFA No. 82/2019 filed by M/S Numaligarh Refinery Ltd is also dismissed.

33. With the above observations, both appeals, MFA No. 142/2019 and MFA

No. 82/2019, shall stand disposed of.

34. The parties shall bear their own costs.

JUDGE

Comparing Assistant