Ramratna Singh, J.:— These appeals arise out of one judgment given by the Subordinate Judge of Sasaram in a suit instituted by Messrs Dehri Rohtas Light Railway Company Limited for recovery of railway freights and demurrage from the defendants.

2. Two consignments of coal were booked by defendants No. 1 at Kusunda Railway Station on the Eastern Railway in the district of Dhanbad for delivery to defendant No. 2 at Banjari Railway Station on the Dehri Rohtas Light Railway in the district of Shahabad. The railway freights were to be paid at the time of delivery at Banian. The consignments arrived at destination on the 12th November 1954. But the consignee (defendant No. 2), that is, the Kutchwar Lime and Stone Company, refused to take delivery of the same. There was a lot of correspondence between the parties and some others, which need not be discussed at this stage. Ultimately, the coal contained in the consignments was sold by the plaintiff railway on the 2nd June 1956 at a public auction held at Dehri-in-Sone for a sum of Rs. 1,050, which was credited to the account of the defendants. In the circumstances, the plaintiff claimed Rs. 495/14/- as freight and Rs. 18,180 as demurrage and instituted the present suit for recovery of Rs. 17,625/14/- after setting off Rs. 1,050 which had been fetched at the public auction, besides interest at six per cent, per annum.

3. The defendants filed separate written statements. The consignee, the Kutchwar Lime and Stone Company, asserted that it was not liable for the railway freight or demurrage, as at the time of booking the goods the railway had entered into a contract with the consignor, namely, the East Keshalpur Colliery, in respect of the wagons. On the other hand, the consignor said that it was the consignee who was responsible for the payment of the railway freight and the demurrage. Both of them, however, disputed the amount of demurrage claimed. They further submitted that the railway was not justified in keeping the coal in the wagons for a long period for which demurrage had been charged.

4. The trial court granted a decree to the plaintiff against the Kutchwar Lime and Stone Company alone for the railway freight claimed and for the demurrage for 22 days only from the 23rd November 1954, the date when the Kutchwar Lime and Stone Company wrote to the consignor that they had refused to take delivery and sent a copy of their letter to the Manager of the Plaintiff-railway. Kence F.A No. 210 by the plaintiff and F.A No. 230 by the Kutchwar Lime and Stone Company.

5. The first question to be determined in these two appeals is whether the East Keshalpur Colliery or the Kutchwar Lime and Stone Company was liable to pay the amount of railway freight and demurrage which may be legally payable to the plaintiff. In order to determine this liability, it is necessary to find out as to who were the contracting parties and what was the nature of contract between them.

6. It is admitted — and there is documentary evidence in support of the fact that against the relevant column;in the railway receipts and the forwarding notes the party concerned was “to pay” the freight. In other words, the freight was to be paid at the time of delivery at destination. This fact by itself is not sufficient to show as to who had entered into the contract with the railway for payment of the railway freight.

7. As there is paucity of Indian decisions, some English decisions were cited by the learned advocate for the appellant, the Kutchwar Company. These decisions have been discussed in a decision of this court in Secretary of State v. Ganji Dosa, ILR 8 Pat 669 : (AIR 1929 Pat 255), on which also the learned advocate relied. The Patna decision and the English decisions have also been discussed in a Bench decision of the Calcutta High Court in Kajora Coal Co. Ltd. v. Secy., of State, AIR 1931 Cal 33. From these decisions, it appears to be well settled that the person who is primarily liable for the payment of freight is the consignor and this liability of the consignor is to be implied from the fact that he had made over the goods to the carrier for the purpose of being carried to destination and that this liability of the consignor may, in some cases, be even independent of the question of actual ownership of the goods. It follows that the consignee as such is not liable to pay the freight, because ordinarily he is not to be treated as a party to the contract of carriage. But if the facts of the case show that the consignor acted to the knowledge of the carrier as agent only, the person on whose behalf he acted as agent is in reality the principal and liable for the freight. Thus, the consignee is liable for the freight, when he has made himself liable by express contract or when he is treated as the undisclosed principal of the consignor or when it is understood between the consignor and the carrier that freight is to be paid by the consignee. In view of these well settled principles, the mere fact that the entry “to pay” is made in the relevant column of the railway receipt or the forwarding note is; not sufficient to show that the consignee was liable to pay the freight. This was the view taken in the decisions of the Patna High Court and the Calcutta High Court; and, if I may say so with respect, this is the correct View.

8. We have, therefore, to see now whether independently of the railway receipts or the forwarding notes, there is any evidence to show that there was a contract between the railway and the Kutchwar Lime and Stone Company for supply of the wagons and whether to the knowledge of the railway, the East Keshalpur Colliery acted is the agent of the Kutchwar Lime and Stone Company at the time of booking the consignments at Kusunda Railway Station.

9. It is admitted that in those days certain control orders in respect of coal issued under the Essential Supplies (Temporary Powers) Act, 1946, were in force. These orders were; (1) the Colliery Control Order, 1945, issued under R. 81 of the Defence of India Rules and kept alive under the said Act; and (2) the Bihar Coal Control Order, 1947. It was conceded at the bar that, in view of the provisions of the Colliery Control Order, 1945, coal could not be sold to any person by any colliery without the orders of the Coal Commissioner or his Deputy. In fact, in the present case also, the coal in question was booked for supply to the Kutchwar Lime and Stone Company under the orders of the Deputy Coal Commissioner. Exhibit A-1 is the sanction order by the Deputy Coal Commissioner dated the 13th July, 1954. This order is addressed to the Divisional Superintendent of the Eastern Railway at Dhanbad, and the priority supply of wagons is sanctioned therein for “the Kutchwar Lime and Stone Company” at destination Banjari (Dehri Rohtas Light Railway). Undor the heading “names of supplying collieries and managing agents” in the sanction order, the names of the proprietor of the East Keshalpur Colliery are mentioned and the quality of coal is steam, Grade IIIB. A copy of this letter addressed to the Divisional Superintendent was forwarded to the colliery concerned, that is, the East Keshalpur Colliery, who was directed in the forwarding memo, under Cl. 8 of the Colliery Control Order, 1945, that the grade, size and quantity of coal to be supplied should “strictly conform to the specification given above.” Another copy was forwarded to the “allottee” concerned, that is, the Kutchwar Lime and Stone Company, Dalmian-nagar. In the forwarding note to this allottee, it is stated that the said quantity of coal has been sanctioned “on your account” and necessary sanction for the priority supply of wagons has also been accorded.

10. The second paragraph of this forwarding note to the allottee reads this:

“This sanction is accorded on condition that the coal/coke will be consumed for the purpose stated above and that it will not be used for any other purpose and that you will not divert or transfer the coal/coke to any other person except with my written authority. Any violation of the above terms and conditions will render you liable to a criminal prosecution under the Essential Supplies (Temporary Powers) Act, 1946 (XXIV of 1946)”.

11. In the third paragraph it is said that this sanction “is only an authorisation to enable the Supplying Collieries to indent for wagons”. A copy of this sanction order was forwarded to the Coal Controller, Bihar, Patna, with reference to his permit dated the 12th May 1954, and another copy was forwarded to Messrs Eastern Coal Marketing Co., which was the middle man through whom the Kutchwar Lime and Stone Company placed the orders for the coal in question with the East Keshalpur Colliery.

12. The contents of the sanction order and the forwarding notes are sufficient to prove that contract for supply of wagons was between the railway and the Kutchwar Lime and Stone Company and, in as much as the East Keshalpur Colliery has booked the consignments at Kusunda Railway Station in pursuance of the sanction order, it had acted as an agent of the Kutchwar Lime and Stone Company. Hence, the Kutchwar Lime and Stone Company, was liable to pay the freight as well as the demurrage, if any.

13. There is no dispute regarding the amount of the railway freight claimed. It will be recalled that the consignments were carried partly on the Eastern Railway and party on the Dehri Rohtas Light Railway. The plaintiff-railway claimed to have paid the proportionate railway freight to the Eastern Railway and included the entire railway freight in the claim in the present suit. It was alleged in the written statement and also urged before the trial court that there was no satisfactory evidence to prove that the plaintiff paid the proportionate freight payable to the Eastern Railway. But this plea was rejected on the basis of division sheets Exhibits 1 and 1(a) which show that the accounts of the two invoices in question in respect of the freights were adjusted by the plaintiff. This finding of the trial court was not challenged during the hearing of the appeals; and, therefore, the plaintiff is entitled to get a decree for Rs. 495/14/-, the amount of railway freight, against the Kutchwar Lime and Stone Company.

14. Then, the next question is whether the plaintiff is entitled to any amount as demurrage. Initially, the coal was loaded in two wagons of the Eastern Railway; but when it was transhipped to the Dehri Rohtas Light Railway, it was loaded in six wagons for which demurrage has been charged from the 12th November 1954 to the 1st June 1955. The rate of demurrage has not been challenged in this Court. Mr. Mitra submitted, however, that there is no satisfactory evidence to show that coal was loaded on the Dehri Rohtas Light Railway in six wagons. But it was specifically stated in paragraph 6 of the plaint that six wagons were used. In none of the two written statements anything is stated in regard to the number of wagons.

15. The allegations made in paragraph 6 of the plaint had been controverted in paragraph 5 of the written statement of the Kutchwar Lime and Stone Company; and this paragraph reads thus:

“With reference to paragraph G of the plaint this defendant states that owing to the coal consigned in the wagon being found unfit for use this defendant intimated the plaintiff their inability to take delivery in writing on the 23rd November, 1954. Save and except as above, this defendant does not admit the statements contained in the said paragraph and deny that demurrage continued to accruing as a result of this defendant's action.”

16. The second sentence of the aforesaid paragraph does not, in my opinion, amount to the denial of the fact that six wagons were not used for the coal in question and, therefore, it must be held that there was never any cis-pute regarding the number of wagons.

17. It also appears from paragraph 8 of the judgment of the trial court that 23 tons of coal contained in one wagon of the Eastern Railway was transhipped to three wagons of the Dehri Rohtas Light Railway and 23 tons 10 Cwts of the other wagon of the Eastern Kailway was transhipped to three wagons of the Dehri Rohtas Light Railway. This is another ground which shows that the number of wagons in which the consignments were loaded on the Dehri Rohtas Light Railway was six; and it must be held that the plff. is entitled to demurrage, If any, for six wagons.

18. As stated earlier, the consignments arrived at Banjarl Railway Station on the 12th November 1954. It is admitted that the Kutchwar Lime and Stone Company, the consignee in the Railway receipts, refused to take delivery of the consignments, and on the 23rd November 1954 (Ext. A4-2), the railway company wrote to the middle man that the Kutchwar Lime and Stone Company did not take delivery, as the coal in question was found unfit for time burning purpose. A copy of this letter was sent to the East Keshalpur Colliery as well as to the Manager of the plaintiff-railway. Again, on the 30th November, 1954, the Kutchwar Lime and Stone Company wrote to the Deputy Coal Commissioner, Calcutta, to the effect that it refused to accept the coal in question as it was unfit for being used for time burning purpose and, though the colliery had been informed to arrange for the disposal of the coal, it had not taken any action so far. The Kutchwar Lime and Stone Company, therefore, requested the Deputy Coal Commissioner to advise the Coal Controller, Bihar, to take steps for disposal of the coal.

19. In reply to this letter, the Deputy Coal Commissioner informed the Kutchwar Lime and Stone Company on the 18th December 1954 that, as the supply was made through the normal trade channel, his office could not interfere with the matter which should be taken up with the suppliers. In this letter the Kutchwar Lime and Stone Company was further asked by the Deputy Coal Commissioner not to detain the wagons on any account and to make arrangements to release the wagons immediately by unloading the coal “as otherwise the liability for demurrage will be entirely yours.” On the 24th January 1955, the Manager of the Plaintiff-railway wrote to the Coal Area Superintendent, Eastern Railway, Dhanbad, informing mm that coal wagons were lying undelivered since the 12th November 1954, that the consignee had refused in its letter dated the 23rd November 1954 to take delivery, and that the demurrage would come to Rs. 6,210 up to the 20th January 1955. The manager then asked the Coal Area Superintendent to send immediately the consignor's instructions for the disposal of the coal and treat the matter as most urgent.

20. On the 21st February 1955, the Manager of the plaintiff-railway sent a reminder to the Coal Area Superintendent for a reply and stated that the goods would be sold on auction, if nothing was heard from him within a fortnight from the date of this reminder. Another reminder was sent by the plaintiff-railway to the Coal Area Supdt. on the 4th March, 1955. On the 26th March 1955, the Coal Area Superintendent wrote to the East Keshalpur Colliery informing the latter about the non-delivery of the consignments and intimated to the colliery that, if delivery were not effected within fifteen days from the date of this notice and unless all charges due thereon were paid, arrangements would be made to dispose of the consignments under Section 55 of the Indian Railways Act. On the 8th April 1955, the East Keshalpur colliery wrote in reply to the above letter of the Coal Area Superintendent that the consignee alone was responsible for demurrage and all other consequences of nondelivery. A copy of this letter was sent to the Deputy Coal Commissioner, Calcutta, and another copy to the Manager of the plaintiff-railway. That is the stand of the East Keshalpur colliery even in court; and this stand must be accepted, in view of the earlier finding that, inasmuch as the wagons were supplied under the orders of the Deputy Coal Commissioner to the Kutchwar Lime and Stone Company, this company is liable for the railway freight and demurrage.

21. Mr. Mitra argued that this company was justified in refusing to take delivery, because the coal in question was not fit for burning time stone. But it is well settled that a consignor or a consignee of goods is not justified in refusing to take delivery from the railway on the ground that the quality of the consignment was bad or that there was a shortage in the consignment at the time of delivery. It is also well settled that a consignor or a consignee is entitled to sue the railway for damages in such cases and that, if he refuses to take delivery, he does so at his own risk. Then, it is nobody's case that the quality of coal in question had deteriorated on account of any act of the railway administration or the railway staff. It is true that there was some delay in the arrival of the consignments at Banjari, because, the wagons in which the coal had been loaded on the Eastern Railway had been missing for sometime; but it is nobody's case that the quality of coal deteriorated subsequent to the date when it was booked and loaded at Kusunda.

22. Further, it appears from the evidence that the Kutchwar Lime and Stone Company had refused to take delivery of the consignments in question without examining the contents of the consignments. It is admitted that, some coal consignments had been received ealier by the Kutchwar Lime and Stone Co. at Banjari from Kusunda and that coal had also been supplied by the East Keshalpur colliery. Two witnesses examined on behalf of the Kutchwar Lime and Stone Company have said that the coal received previously when taken to the kiln was found unfit for burning time Stone. Regarding the consignments in question, Sonsa Ram (D.W 3), a servant of the company, has said that he found the coal in question unloaded at Banjari Railway station; and as this coal was of the same quality as the previous one, delivery of the same was not taken. He has, however, stated that the coal of the consignments in question was not unloaded in his presence. The then manager of the company is said to have accompanied him and seen the station master at that time but he has not been examined; and the learned advocate has informed us that the Manager was not in service of the company at the time of the hearing of the suit, it is difficult to believe the statement of Sonsa Ram that he found the consignments in question unloaded at Banjari Railway Station, because it is nobody's case that the consignments were unloaded from the wagons.

23. The definite case of the plaintiff is that they remained loaded in the wagons for which demurrage has been charged and this fact has not been denied in any of the written statements. H.D Bhattatcharji (D.W 2) is the Manager of the company since February 1956 and he is not competent to speak anything about the consignments in question. On the other hand, Baijnath Choudhury (D.W 1), one of the partners of the East Keshalpur colliery, has said that the consignments in question contained coal fit for the purpose of the Kutchwar Lime and Stone Company. There are two documents on this point which show that the Kutchwar Lime and Stone Company was not justified in refusing to take delivery. Exhibit A-22 is a letter dated the 27th September 1954 from the head office of the Kutchwar Lime and Stone Oompany to its middleman, Messrs Eastern Coal Marketing Company. Copies of this letter were sent to the East Keshalpur colliery, Banjari office of the Kutchwar Lime and Stone Company and the Deputy Coal Commissioner, Calcutta.

24. In the forwarding note to the Banjari office of the Kutchwar Lime and Stone company, it is stated:

“If the wagons reached the destination, do not accept them but intimate the colliery by express letter for arranging to take delivery by them. As stated above we should not take the delivery at all.”

25. This not only belies the statement of Sonsaram but it also shows that the Kutchwar Lime and Stone Company had no intention of even looking into the wagons for the, purpose of knowing the quality of coal contained therein. Exhibit 2, the bidsheet of the public auction, shows that the consignments in question were auction-sold on the 2nd June, 1955 for Rs. 1050 to Messrs Kalyanpur Lime and Cement Works Ltd., Banjari; and admittedly the price for which the coal in question had been sold by the colliery to the Kutchwar Lime and Stone Company was Rs. 400 only. It is obvious that an inferior quality of coal would not have fetched double the price at public auction; and even in view of the quality of the coal, the Kutchwar I Lime and Stone Company was not justified in refusing to take delivery.

26. It was then contended on behalf of the defendants that, as held by the trial court, the plaintiff-railway was not justified in making delay in the public auction after the 23rd November 1954, when the consignee refused to take delivery. But, as I shall presently show, this contention is not well founded.

27. It will be recalled that the goods were booked with the Eastern Railway at Kusunda; but, under Section 74-E of the Indian Railways Act, although the goods were delivered to one railway, other railway or railways through which the goods travel would also be deemed to have contracted with the person with whom the original railway had entered into a contract for the carriage of the goods. It was, therefore, conceded at the bar that the rules of the plaintiff-railway company would apply to the present case.

28. Some clauses of R. 108, which are reproduced below, are relevant:

“(1) Subject to the exception mentioned in cl. (7) below, unclaimed articles are kept on hand at the station to which booked for a period of not less than one month during which time the notice prescribed in Section 56, sub-sec. (1) of the Indian Railways Act, 1890, will, if possible, be served upon the person appearing entitled thereto.

(2) For unclaimed booked articles a wharfage charge of two annas permaund or part of a maund per 24 hours or part of 24 hours with a minimum charge as for one maund is levied, if they are not removed from railway premises within 48 hours from midnight of the day of arrival.

(3) If not delivered within a period of one month after receipt at destination, unclaimed articles may be sent to the Lost Property Office and will be dealt with as laid down in cls. (5) and (8) below.

(4) Unclaimed articles are liable to the wharfage charges hereinbefore referred to as well as to all reign and special expenditure incurred by the railway on account of their custody and disposal.

***********

(8) Public sales by auction will be held from time to time of all unclaimed or lost property which has remained in the possession of the railway for the period mentioned below:

(i) Unclaimed or lost property other than foodgrains which has remained in the possession of the railway or over three months.

(ii) Unclaimed foodgrains which have remained in the possession of the railway for two months.

29. At least 15 days previous notice of each auction will be given by advertisement in a newspaper.

(9) Any surplus proceeds arising out of sales of lost property or unclaimed consignments after payment of all charges and expenses due to the railway will be paid to the person or persons eititled thereto”.

30. Section 56 of the Indian Railways Act applies to the present case and it reads thus:

“(1) When any animals or goods have come into the possession of a railway administration for carriage or otherwise and are not claimed by the owner or other person appearing to the railway administration to be entitled thereto, the railway administration shall, if such owner or person is known, cause a notice to be served upon him, requiring him to remove the animals or goods.

(2) If such owner or person is not known, or the notice cannot be served upon him, or he does not comply with the requisition in the notice, the railway administration may, within a reasonable time, subject to the provisions of any other enactment for the time being in force, sell the animals or goods as nearly as may be under the provisions of the last foregoing section, rendering the surplus, if any, of the proceeds of the sale to any person entitled thereto”.

31. It will be noticed that before taking steps for disposal of the goods, the railway administration has to serve a notice on the owner of the goods or other person “appearing to the railway administration to be entitled thereto”. Admittedly, in the railway receipt, the Kutchwar Lime and Stone Company was the consignee. It was, therefore, submitted that, after the 23rd November 1954, when the Kutchwar Lime and Stone Company indicated its intention not to take delivery of the goods, the plaintiff-company ought to have taken immediaje steps for the disposal of the coal in question.

32. But the mere fact that the Kutchwar Lime and Stone Company was named as consignee in the railway receipt was not sufficient to make that company an owner of the coal, particularly because admittedly the price of the coal had not been paid to the consignor. The railway company was not expected to go into the nice question of law in determining the ownership of the goods in the present case; and, therefore it was justified in making enquiries from the Area Coal Superintendent of the Eastern Railway, Dhanbad, in order to know the consignor's instructions for disposal of the coal; and it was only after receipt of the reply dated the 8th April 1955 from the East Keshalpur Colliery that the plaintiff-company could take further action regarding the disposal of the gopds. The plaintiff wrote on the 28th April 1955 to the Deputy Coal Commissioner as well as to the East Keshalpur Colliery and the Kutchwar Lime and Stone Company intimating its decision to them to dispose of the consignment in question by public auction. In all these letters the plaintiff-company stated that demurrage up to the 30th April 1955, amounted to Rs. 14,985. In the letters to the Colliery and the Kutchwar Lime and Stone Company, it is also stated that the sale proceeds would be adjusted against the railway dues and the balance recovered from them through a court of law. The plaintiff had to write to the Deputy Coal Commissioner, because it could not sell the coal without the permission of the appropriate authority in view of the provisions of the Colliery Control Order and the Bihar Coal Control Order. It is true that these orders are silent about disposal of coal by the railway administration. But, under cl. 9 of the Bihar Coal Control Order, no person could stock in excess of ten maunds at a time without the permission of the District Magistrate of the area concerned. That is why the plaintiff sent copies of its letter addressed to the Deputy Coal Commissioner to the Coal Controller, Bihar, the District Magistrate of Shahabad and the Subdivlsional Magistrate of Sasaram. In the copies forwarded to the District Magistrate and the Sub-divisional Magistrate, the plaintiff requested them to permit the railway company to get the consignments auctioned. Further, the direction to the allottee contained in the sanction order dated the 13th July 1954 (Ext. A-1) by the Deputy Coal Commissioner, which has been reproduced earlier, shows that the allottee was prohibited from using the coal for any other purpose and to divert the coal to any other person except with the written authority of the Deputy Coal Commissioner. In view of this direction, the Railway-Company was justified in seeking permission of the aforesaid authorities for selling the coal by public auction.

33. Moreover, a public auction must be open to all members of the public, including the dealers of coal as defined in the Bihar Coal Control Order. In view of the provisions of the Bihar Coal Control Order, dealers could not bid at the auction sale and. If the dealers had not been allowed to bid. It is possible that the coal might not have fetched the high price that it did. On the lath May, 1955, the Bihar Coal Controller ultimately asked the plaintiff-company to dispose of the consignments in question “according to the prevailing railway rules and by public auction”. It may be mentioned Incidentally that the Coal Controller had, earlier on the 25th February 1955 asked the Station Master, Banjari, to deliver the consignments in question to the Stone Sone Valley Lime Works but the latter refused to accept the same. This appears from the letter, Exhibit 5(c) dated the 4th March 1955 from the plaintiff-railway-company to the Coal Area Superintendent. Then, notice for public auction was sent to several newspapers on the 19th May 1955 for publication, and a notice was published locally at Dalmianagar on the 23rd May 1955 for auction sale on the 2nd June 1955 at 10 A.M at the unclaimed property office of the railway there and the coal was sold on that date for Rs. 1050.

34. Thus, there was no avoidable delay on the part of the plaintiff-railway-company in selling the coal by public auction.

35. Clause (1) of the R. 108 quoted earlier shews that in case notice was to be served under Section 56 of the Indian Railways Act, the unclaimed articles had to be kept on hand at the station for a period of not loss than a month; and under cl. (5), If the goods were not delivered within a period of me month after receipt at destination, the same had to be sent to the Lost Property Office and dealt with in accordance with cls. (5) and (8).

36. According to Cl. (8), which applies to the present case, the unclaimed coal could remain in possession of the railway for three months or more. In the present case the railway could not Stave taken any step for sale of the coal until soma time bi April when the East Keshalpur Colliery also refused to tats delivery of the goods; and, thereafter, some time was taken in obtaining permission of the Coal Controller, Bihar.

37. Sri Radheshyam Chatterji, Beamed Advocate appearing for the East Keshalpur Colliery submitted, on the strength of the decision of the learned Chief Justice of this Court in Probhu Narayan Sanitarial v. Union of India, AIR 1961 Pat. 119, that the plaintiff-fallway was not entitled to any demurrage after fifteen iays from the 22nd November, 1954, the date of refusal by the consignee to take delivery of the consignment or at the worst after one month from the 12th November, 1354, when the goods arrived at Banjari. But this submission is misconceived. The aforesaid decision was given in a case to which Section 55 of the Railway Act applied. Out of a consignment of 180 bags of sugar arrived, the railway administration delivered to the consignee 152 bags of sugar on the 28th July 1955. The consignee refused to take delivery of the remaining 28 bags on the ground that it was wholly damaged by rainwater. On the 25th August, notice was given by the railway to the consignee under Sec. 55 of the Act. On the 4th January 1956 the railway sold these sugar bags in auction for Rs. 1,763/7/- and claimed the entire amount as set off towards wharfage charges from the 27th July 1955, to the 4th January 1956. Applying the principle that a person who has a lien upon chattel for a debt cannot, if he keeps it to enforce payment, add to the amount for what the lien exists, a charge for keeping the chattel till the debt is paid, it was held that the railway administration was not entitled to any wharfage charges for the period subsequent to the 9th September 1955, the date of the expiry of the notice cinder Sec. 55, though wharfage charges were allowed from the 27th July 1955 to the 9th September 1955, this decision was in accordance with sec. 55, which applies to a case where the railway has a lien on the goods for the recovery of the dues of the railway from a person who fails to pay on demand to the railway any such dues.

38. On the contrary, the present case is governed by Sec. 56 reproduced earlier. That section applies to a case where the goods are “not claimed by the owner or other person appearing to the railway administration to be entitled thereto”, and such owner or person refuses to take delivery of the goods even after notice; and in such cases the railway administration is entitled to demurrage or wharfage, as the case may be, so long as the goods remain in its custody.

39. This view is supported by a Bench decision of this Court in Suraj Mai v. B.N Rly. Co., 58 Ind Cas 200 : (AIR 1920 Pat 493). It was held therein that, on account of the refusal to take delivery of the goods, the railway company was entitled to charge demurrage or wharfage for keeping the goods until such time as it found that for the sake of their preservation the goods anist be sold. This decision was followed recently by a single Judge in Vishnu Prasad v. Union of India, 1959 BLJR 404 : (AIR 1960 Pat 323). The submission of Sri Chatterji is, therefore, without any substance and the plaintiff is entitled to the amount of demurrage claimed up to the 1st June 1955. In the result, the plaintiff is entitled to a decree for Rs. 17,625/14/- with costs of both the courts against defendant No. 2 only and First Appeal No. 210 is accordingly allowed and the decree of the trial court is modified. First Appeal No. 230 is consequently dismissed without costs.

Kanhaiya Singh, J.:— I agree.

IF/R.G.D

40. Order accordingly.