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Petitioner: FAKIR SPINNING MILL LTD VS Respondent: PAKISTAN
P L D 1960 (W
P L D 1960 (W. P.) Karachi 175
Before Qadeeruddin Ahmad, J
FAKIR SPINNING MILL LTD.‑Plaintiff
versus
PAKISTAN and others‑Defendants
Suit No. 136 of 1959, decided on 14th December 1959.
(a) Pleading‑Defendant instead of filing written statement submitting application under O. VII, r. 11 & S. 115, Civil Procedure Code (V of 1908)‑Application treated as written statement.
(b) Railways Act (IX of 1890), S. 77‑"Overcharge"‑Goods consigned incorrectly classified and thus heavy charged‑Claim for refund of overpayment‑Claim for refund of "overcharge".
Joint Family Business of Ramchandra Srinavas v. The Shahdara Saharanpur Ligtt Railway A I R 1953 Hyd. 274 ; Shea Dayal Niranjan Lai v. Great Indian Peninsula Railway Company A I R 1926 All. 698 and Meadows v. Grand Junction Water Works Company XXI T L R 538 ref.
Khalilullah for Plaintiff.
Mukhtar Ahmad for Defendant No. 1.
Date of hearing : 14th December 1959.
JUDGMENT
The plaintiff has brought this suit for the recovery of Rs. 54,070‑15‑0 from the defendants.
2. The plaintiff had been consigning goods from Gambat, Khairpur, to Karachi on freight‑to‑pay basis. The goods were cotton yarn and cotton cloth. It began to consign the goods from the 21st of March 1956. In July 1958, the rates which were charged were examined by the Railway because some of the goods had been undercharged. At that time it was found that from the 21st of March 1956, all goods had been overcharged. The plaintiff, therefore, demanded refund of the excess payments by its letter dated the 8th of September 1958. The Railway authorities recognised the correctness of the plaintiff's claim and agreed to make payment relating to the overcharge made from the 21st of March 1956 to the 10th of March 1958, but not the rest of the money claimed by the plaintiff on the ground that the claim was barred by section 77 of the Railways Act.
3. The plaintiff has alleged that between the 21st of March 1956 and the 10th of March 1958, it had paid Rs. 48,417‑15‑0 in excess of the proper amount chargeable from it and has claimed interest on the amount upto the date of the suit in the amount of Rs. 5,653 at the rate of 6 per cent. per annum. Its total claim is, therefore, for Rs. 54,070‑15‑0.
4. The defendants did not submit a‑ written statement, but made an application under Order VII, rule 11 and section 151,IA C. P. C. for rejection of the plaint owing to the bar of section 77 of the Railways Act. This application has been treated by me as the written statement.
5. The case was fixed 'for hearing of the solitary objection raised by the defendants. The issue is Whether the suit of the plaintiff is barred by section 77 of the Railways Act.
6. Section 77 is as follows :‑
"A person shall not be entitled to a refund of an overcharge in respect of animals or goods, carried by railway or to com?pensation for the loss, destruction or deterioration 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 to the railway administration within six months from the date of the delivery of the animals or goods for carriage by railway."
Counsel for the plaintiff has contended that the section is applicable to a claim for refund of `overcharge', and not when excess payment was made by sheer mistake. He has cited : Joint. Family Business of Ramchandra Srinavas v. The Shahdara Saharanpur Light Railway (A I R 1953 Hyd. 274), Sheo Dayal Niranjan Lal v. Great Indian Peninsula Railway Company (A I R 1926 All. 698) and Meadows v. Grand Junction Water Works Company (XXI T L R 538) in support of his contention that overpayment made by mistake is not overcharge. The Hyderabad ruling does not help him, because the question of limitation was left undecided in it. The last sentence of the second paragraph of the judgment is against the plaintiff, because the learned Judge has remarked
"Thus, in my opinion it is quite evident that excessive rates were charged."
The payment of excessive rates was, thus treated by the learned Judge as an overcharge. The Allahabad ruling is not relevant because the question of physical impossibility to give notice was considered in it, and the question raised by the plaintiff's counsel, viz., distinction between overcharge and mistake was not discussed in it. The English ruling is not useful for the present purposes, because the main question there was whether the mistake was of law or of fact, and no distinctions were sought to be drawn, between mistake and overcharge.
7. There are a few remarks of the author, P. Hari Rao, in his book The Indian Railways Act, 3rd Edn., at page 653, which, to my mind, draw a clear distinction between overcharge and payment. They are as follows :‑
"The word `overcharge' must be constructed in a wide sense. An overcharge is simply a charge of more than is permitted by law. An overcharge must be understood in its natural and ordinary sense as a charge in excess of that prescribed or permitted by law. To be an overcharge, a sum of money must mistake of the same character as the charge itself or must be of the same genus or class as a charge; it cannot be any other kind of money such as money by mistake overpaid, or money collected when nothing is due."
The illustration of overpayment by mistake given by the author is `double' payment. In the present case, the charge levied on the goods consigned by the plaintiff was higher than was correct because the goods were incorrectly classified. It was a payment which partook of the character a `charge', although it was more than what it ought to have been. In the present circumstances, it is not possible to say that the amount paid by the plaintiff was not of the nature of a charge and the result merely of a misunderstanding. Wherever there is an overcharge, there is some misunderstanding ; otherwise there would be no overcharge and no payment of overcharge. In order to escape the scope of the word `overcharge' counsel for the plaintiff ought to have been able to show that the payment made by the plaintiff was not of the character of `charge' at all. In this respect learned counsel has not been able to advance any reason or to show any authority to support his contention. The result is that the payment must be held to be overcharge and subject to the application of section 77 of the Railways Act.
8. There is no other question to be decided in the suit. In conclusion, the suit is dismissed with costs. K. M. A.?????????
Suit dismissed.