ORDER T.P. Naik, J. 1. This is an appeal by the plaintiff appellants whose suit against the defendant respondents for Rs. 20,503 by way of compensation for the non-return of 1350 tons 1 cwt. coal deposited on the railway yard, Manendragarh, has been dismissed by the Additional District Judge, Ambikapur. 2. The claim of the plaintiffs arises under the following circumstances: The plaintiffs are a Private Limited Company carrying on colliery business. The modus operandi adopted by them with the consent of the defendant railway for transporting coal from their collieries to outstations was as follows. They were to load the railway wagons with coal at the colliery siding. The wagons were then to be taken to the weighbridge at the railway yard, Manendragarh, where coal in excess of the wagon capacity was to be off-loaded by the plaintiff's labour. This off-loaded coal was to be kept in the railway yard at the risk of the plaintiff. From time to time arrangements used to be made for transporting this coal if and when it was more than a wagon load. 3. Both the colliery company as well as the defendant railway used to keep account of the coal in excess of the wagon capacity which was to be off-loaded because the defendant railway company used to collect excess freight on its basis for the transport of that coal from the colliery siding to the weighbridge at the railway yard as also penalty for the extra detention of the wagons caused by the overloading which penalty was in proportion to the excess load. 4. The case of the plaintiffs is that in or about February 1954 there was a joint verification of accounts of coal and it was agreed that on 31st July 1953,1350 tons 1 cwt. of coal belonging to the plaintiff was lying at the railway weighbsidge yard, which the defendant railway have failed to account for. They alleged that the defendant railway were liable to account for it either as bailees or depositees. They, therefore claim the price of the coal unaccounted for, at Rs. 15-3 per ton which was the market price of coal on that date. They thus claim Rs. 20,503. 5. The defendant railway deny the claim. They deny the alleged agreement of February 1954. They, therefore claim the price of the coal unaccounted for, at Rs. 15-3 per ton which was the market price of coal on that date. They thus claim Rs. 20,503. 5. The defendant railway deny the claim. They deny the alleged agreement of February 1954. They contend that though coal was to be off-loaded if it exceeded the wagon capacity, it was not always so off-loaded, and that the account of excess coal which the parties kept was for the purpose of computing penalty to be charged for excess load and penalty for detention and not for the purpose of keeping an account of the off-loaded coal which was not deposited with them and which they were not liable to account for. They denied that there was any contract, express or implied, which constituted them either bailees or depositees of the coal in question. They alleged that if any coal was off-loaded and left by the plaintiffs at the railway yard it was their coal, lying there at their risk. 6. The trial Court dismissed the plaintiff's suit inter alia holding- (i) That there was no contract, express or implied between the plaintiffs and the defendants whereunder the plaintiff's coal was off loaded and left in deposit with the defendants in their custody; and (ii) that it was not agreed to between the parties in February 1954 that 1350 tons 1 cwt. of coal was lying in deposit with the defendant railway on 31-7-1953 either under a contract of bailment or deposit. 7. In our opinion the findings are correct and the learned counsel for the plaintiff appellants has not been able to assail them. There is nothing on record to establish an express contract. On the other hand, Ralph Hearn (P. W. 3) has admitted that there was no written or express contract between the parties. The learned counsel for the plaintiffs wanted us to infer an implied contract from the following circumstances: (a) that the excess goods were to be off-loaded at the weighbridge and that this was done by the servants of the plaintiffs for the convenience of the defendant-railway; (b) that the goods were lying in the yard of the defendant-railway; and (c) that the defendant-railway kept an account of them. 8. 8. Before considering the inference to be drawn from the aforesaid circumstances which are by no means conclusive of an implied contract of bailment, we may bear in mind the following further facts which throw considerable light on the subject. The first is that though the excess coal ought to have been off-loaded, there is no evidence that it was actually always off-loaded. On the other hand, the railway permitted one or two tons of excess coal to be carried on the wagons and neither the operation of off-loading was supervised by anybody nor was the wagon weighed again after the so called off-loading operation. (See the evidence of P. W. 2. P. W. 3. and P. W. 4). Secondly, the evidence of the aforesaid wisnesses further shows that there never was more than three or four wagon load of coal at the railway yard, which cannot be explained except on the hypothesis that the coal was not always off-loaded. This may have been due to the fact that the overloading up to a limit was not objected to by the defendant-railway though for the purposes of penalty and over charge, they kept an account of the excess carried. Thirdly, the evidence shows that the coal off-loaded by various collieries used to be in the yard, all mixed up in heaps. No separate heaps were kept for each colliery (see the evidence of Ganesh Prasad Shrivastava, P.W. 1). This coal was freely used by the railway servants and others without any objection from anybody and though about 10 years back the colliery had a watchman to guard their coal, there has been no watchman since (see the evidence of Shirishchandra Bandhopadhya (P. W. 4). According to Ralph Hearn (P. W. 3) it was not the duty of the defendant-railway to keep a watch over the plaintiff's coal (see the evidence of P. W. 1 and P. W. 2). Fourthly, the defendant railway never charged any ground rent for permitting the plaintiffs to deposit their coal and fifthly even when the off-loaded coal became a wagon load or more it used to be transported on instructions from the plaintiffs only. Fourthly, the defendant railway never charged any ground rent for permitting the plaintiffs to deposit their coal and fifthly even when the off-loaded coal became a wagon load or more it used to be transported on instructions from the plaintiffs only. And sixthly the evidence of P. W. 1 and P. W. 2 shows that the account of surplus coal was kept for charging penalty and for extra detention and for charging excess fare for transporting coal from the colliery siding to the railway yard. The cumulative effect of these circumstances is that there could be no implied contract of bailment or deposit under the circumstances of the case. 9. The emphasis laid on Exh. P. 3 for founding an agreement is also untenable in view of the evidence of Abdul Hamid Khan (P. W. 2) who says:- Exh. P. 3 surplus coal account dated 8-2-54 was prepared by me and colliery and weightbridge clerk. A copy of this was given to Jhgraakhand Colliery. The account was kept for charging penalty for extra detention of overloaded wagons. We did realize some penalty from Jhgrakhand Colliery. The penalty was not flat rate each wagon. It depended on overweight and not on the number of wagons. If any wagon was demanded for coal lying in yard, it was given on requisition. We agree with the Court below that Exh. 3 does not establish that the parties had agreed regarding the actual quantity of coal belonging to the plaintiff lying at the yard of the defendants and consequently it had not been established that 1350 tons 1 cwt. of coal belonging to the plaintiffs was lying in the defendant's yard. 10. Under section 72 of the Railways Act there must be delivery for carriage and liability may even arises where acceptance or delivery of the goods is incidental to the contract of carriage. Mere depositing the goods as a licensee without any objection from the railway would not be enough. The railway administration must accept the goods for their eventual transport. In the instant case, the excess goods belonged to the plaintiffs. They had no business to overload the wagon over the wagon capacity and consequently after the wagon had been weighed at the weighbridge, it was their duty to have removed them. The railway administration must accept the goods for their eventual transport. In the instant case, the excess goods belonged to the plaintiffs. They had no business to overload the wagon over the wagon capacity and consequently after the wagon had been weighed at the weighbridge, it was their duty to have removed them. The off-loading was done by their servants and if thereafter they permitted the goods to be at the defendant's yard without any contract they could not make the defendant railway liable even if they had suffered loss. Before making them liable they ought to have proved both delivery to the railway and the acceptance by the railway of the goods. In this case, there was no proof of either. The defendant could not even be liable as a warehouseman. All that may be said is that the defendant railway had physical custody of the goods because it was lying on their yard, but, in our opinion, it is difficult to hold that they had the possession of the goods to constitute them their bailee or depositee. 11. In our opinion, the suit was rightly dismissed. The appeal fails and is dismissed with costs. Appeal dismissed