Judgment U.N.Sinha, J. 1. This appeal has been filed by the plaintiff. It arises out of a suit instituted by the plaintiff for realisation of the value of a consignment of salt booked from Kandala to Raxaul. That suit has been dismissed by trial court and the decree has been affirmed by the lower appellate Court. 2. The facts are as follows; The plaintiff alleged that a consignment of 300 bags of salt was booked at Kandala on the 17th April, 1958 for despatch to Raxaul by M/s U. S. W. and India to M/s J. S. P. Ltd, A portion of the consignment reached Raxaul on the 11th May, 1958 in a damaged condition and the plaintiff as endorsee of the railway receipt claimed open and assessment delivery on weighment. It was alleged that the District Traffic Superintendent, Samastipur had ordered the Station Master, Raxaul and the Claims Officer, Janakpur to give open and assessment delivery on weighment, but the subordinate Railway servants concerned did not make any delivery at all. It was alleged that the non-delivery was due to negligence and misconduct on the part of the Railway employees and, therefore, the plaintiff was entitled to the value of the goods. The plaintiff alleged that notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure had been properly given and as no compensation had been paid, this suit had to be instituted. The defendants made out a case, amongst others, that proper notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure had not been given. It was also contended that the plaintiff had refused to pay wharfage charges and take delivery of the consignment and, therefore, the suit was likely to fall. Misconduct and negligence on the part of the Railway servants alleged by the plaintiff were denied. 3. The points which arise for determination in this appeal are covered by issues No. 4 and 5 framed by the trial court, which were to the following effect:- - Issue No. 4--Were notices under Sections 77 Indian Railways Act and 80 C.P.C served on the defendants? Issue No. 5--Was the non-delivery of the consignment in question due to the negligence and misconduct on the part of the Railway servants ? Issue No. 5--Was the non-delivery of the consignment in question due to the negligence and misconduct on the part of the Railway servants ? For the determination of issue No. 4, it appears, no copy of the notice under Section 77 of the Indian Railways Act was produced, but it was held by the trial court that as the plaintiff had claimed compensation on account of non-delivery, notice under Section 77 of the Act was not necessary. The learned Munsif also mentioned that the lawyer for the defendants did not press the contention regarding Section 77 of the Railways Act. It was held that notice under Section 80 of the Code of Civil Procedure had been served. Under issue No. 5, the trial court held that as the plaintiff was bound to take delivery of the consignment in whatever condition it had arrived, the defendants are not liable, as the plaintiff had failed to take delivery of the consignment The learned Munsif held that the plaintiff was bound to pay demurrage or wharfage, and as the plaintiff was not ready to pay, the defendants were not liable for the plaintiffs action in not taking delivery. It was held by the trial court that the plaintiff had failed to prove that non-delivery of the consignment, on which the cause of action was based, was due to negligence and misconduct on the part of the Railway servants. In appeal in the court of appeal below, the main points formulated for consideration were:- - (1) Whether the suit, as framed, is maintainable? (2) Whether the plaintiff has got any cause of action? The question of notice under Section 77 of the Indian Railways Act was considered under point No. (1). The learned Judge on appeal allowed the counsel for the defendants to raise the question as to whether a valid notice under Section 77 had been given or not. It was held that notice under Section 77 was necessary in cases of non-delivery of a consignment also. Reliance was placed on a decision of the Supreme Court reported in 1961 B. L. J. R. 380. On behalf of the plaintiff-appellant, it was urged that for this point, a letter marked as Exhibit A, dated the 21st November, 1958, should be held to be a sufficient notice under Section 77; but this contention was rejected. Reliance was placed on a decision of the Supreme Court reported in 1961 B. L. J. R. 380. On behalf of the plaintiff-appellant, it was urged that for this point, a letter marked as Exhibit A, dated the 21st November, 1958, should be held to be a sufficient notice under Section 77; but this contention was rejected. It was held that even if Exhibit A be taken into consideration, no notice had been given to the other Railways through which the goods had passed. Exhibit A having been written to the Chief Commercial Superintendent of the North Eastern Railway. Thus, point No. (1) was decided against the plaintiff-appellant. Under point No. (2) it has been held that the plaintiff had no right to refuse to pay wharfage on the ground that the station staff at Raxaul had not given the plaintiff open delivery after weighment, Thus, this point has also been decided against the plaintiff. 4. Learned counsel for the appellant has contended that Exhibit A should be held to be a valid notice under Section 77 of the Indian Railways Act against the North Eastern Railway, and therefore, the suit was maintainable against the North Eastern Railway on which Raxaul was situated. On the authority of a case, Jetmull Bhojraj V/s. Darjeeling Himalayan Rly Co. Ltd., reported in AIR 1962 SC 1879 , it is argued that Exhibit A should be liberally construed to mean a notice under Section 77 of the Indian Railways Act. It is argued on that authority that even if notices to the other two Railways concerned had not been given under Section 77, the suit was maintainable against the North Eastern Railway, under the circumstances. Learned counsel for the respondents has contended, on the other hand, that even on a most liberal construction of Exhibit A it cannot be construed as a notice under Section 77. However, in my opinion, it is not necessary to decide this matter conclusively, because the appeal is bound to fail on the main point decided by the courts below. In effect, the courts below have held that the plaintiff has failed to prove that the alleged non-delivery was the result of misconduct and negligence of the employees of the Railway. However, in my opinion, it is not necessary to decide this matter conclusively, because the appeal is bound to fail on the main point decided by the courts below. In effect, the courts below have held that the plaintiff has failed to prove that the alleged non-delivery was the result of misconduct and negligence of the employees of the Railway. The main point is, that, according to the courts below, the plaintiff was bound to take delivery of the consignment, in whatever condition it had reached Raxaul on the 11th May, 1958 and the plaintiff had no right to ask the Railway authorities to weigh the consignment; including the undamaged part, and to give assessment delivery Learned counsel for the appellant has relied upon some rules to be mentioned presently, and has contended that the plaintiff was within its right in claiming assessment delivery, after weighment, at Raxaul. So far as the right of a consignee to ask for weighment and assessment delivery is concerned, there are a number of decisions of this Court dealing with this matter, the latest being the case of the Union of India V/s. Gyani Ram Bhagat Ram, Letters Patent Appeal No. 52 of 1960 decided by a Division Bench of this Court on 27.7.1966 = (reported in AIR 1967 Pat. 32). In substance, it has been held therein that a consignee must take delivery of the goods, forming part of a consignment, whenever they are available for delivery, and if he does not take delivery of the goods available for delivery, he does so at his risk, and he must pay wharfage charges, if asked to do so. It has been held that the Railways are not bound by law to re-weigh the goods or certify shortage at the time of the delivery of goods to the consignee It has further been held that the consignee may be justified in asking for re-weighment at the destination station, but as the Railways are not bound to give open delivery of the consignment, the consignee can not base his claim merely on the refusal, rightly or wrongly, of the Railways to give open delivery of the consignment. In the instant case, as I will indicate presently from the judgment of the learned Munsif, the plaintiff refused to take delivery of any part of the consignment unless open delivery, after weighment, was given Learned counsel for the appellant has argued that Rule 18 of the General Rules of Goods Tariff, read with Rule 34, contemplated a situation where a consignee cannot take delivery without the consignment being weighed by the Railway authorities and this is what had happened in this case, and, therefore, the plaintiff is entitled to sue for compensation for non-delivery Rules 18 and 34 read thus: -- Rule 18--"Re-weighment of consignments at destination--Railways do not undertake to weigh consignments at destination stations as a matter of course Such weighment at destination stations can only be considered in exceptional cases when the condition of the consignment or package warrants this." Rule 34--"Notice of loss or damage The Railway shall not be responsible for any damage to, or loss of, property unless notice of such is given in writing to the Station Master before delivery and removal from the Railways premises of the property or of the package or packages, the contents of parts of the contents of which are alleged by the claimant to be damaged or lost, or of the rest of the consignment, a portion of which is alleged by the claimant to be lost (as the case may be)" Rule 18, quoted above, has been considered in the letters Patent Appeal along with Rule 47, I do not think there is any merit in the contention raised by learned counsel for the appellant, based on Rules 18 and 34 According to the learned counsel, unless the Railway authorities weigh the consignment before delivery, the consignee cannot possibly give notices contemplated under Rule 34, because the consignee is supposed to give notice of the actual loss. The words relied upon from Rule 34 are "unless notice of such if given in writing." Emphasis is put on the word such". I do not think the contention of the learned counsel is borne out by Rule 34. The words relied upon from Rule 34 are "unless notice of such if given in writing." Emphasis is put on the word such". I do not think the contention of the learned counsel is borne out by Rule 34. All that this rule contemplates is that a notice of damage or loss must be given at a certain lime mentioned in the rule The word "such clearly refers to the words "damage" or loss, that is to say, notice of damage or loss has to be given The effect of Rules 18 and 47 has been fully considered by the latest decision of this Court and the view of law expressed in the letters Patent Appeal must be followed 5. Learned counsel for the appellant has also relied upon, what are called Rules 1556 and 1557, printed at page 90 of Sri Suranjan Chakravartys annotated edition of the Indian Railways Act, 1890 . But, I fail to see how these matters can be of any benefit to the appellant in this case. The real question that this author has mentioned also, is whether the consignee has a right to take open delivery or not That matter has been the subject of a number of decisions of this Court, the latest of which is the judgment in the Letters Patent Appeal. In my opinion, there is no validity in the contention that a consignee can compel the Railway authorities to give assessment delivery after weighment. The learned Munsif has mentioned the evidence in this case in paragraph 9 of his judgment. It has been stated that P W 1 was constrained to admit that the Station Master of Raxaul had asked him to take delivery of the consignment in whatever condition it had arrived The learned Munsif has further stated in paragraph 8 of his judgment that it was the plaintiffs case that delivery was not taken on the 12th May 1958, because according to them, the consignment was in a damaged condition and because they had written to the District Traffic Superintendent Samastipur for making assessment delivery after weighment Under these circumstances, I fail to see how the plaintiff could insist upon open delivery or assessment delivery after weighment. Moreover, it is difficult to appreciate the basis of the plaintiffs case for compensation, as the plaintiff has claimed the value of the entire consignment including part of the consignment which had no defect. Because of the dispute as to whether the plaintiff had to pay wharfage charge or not no part of the consignment was taken by the plaintiff. As the plaintiff was bound to pay wharfage at least for a part of the consignment which was not in a damaged condition there is no basis for the plaintiffs suit for claiming compensation for the alleged non-delivery of the entire consignment. Learned counsel for the appellant has further relied upon Exhibit A (5), and has argued that as a clear receipt has been demanded from the plaintiff, no part of the consignment could be taken, without assessment and weighment. There is no validity in this contention either. Even if the plaintiff had been compelled to give clear receipt, there could not have been a bar to realisation of compensation, if the plaintiff had proved loss of any part of the consignment by non-delivery. This matter has been dealt with in (1912) ILR 39 Cal 311 and I do not see any force in the contention of the learned counsel. 6. All the points which have arisen in the appeal fail for the reasons given above. The appeal is, therefore, dismissed with costs.