Judgment :- (RAMAPRASADA RAO J.) 1. The unsuccessful plaintiffs in O.S. No. 4173 of 1964, on the file of the VIII Asst Judges City Civil Court, Madras, are the appellants. The plaintiffs consigned by a Tank Wagon rice bran oil from Tadepalligudem, within the jurisdiction of the Southern Railway, to Sahab Bazar, within the jurisdiction of the Eastern Railway, both the railways controlled by the Union of India. The goods were despatched under R.R. No. 798204 dated 13th February 1963 and the goods arrived at the destination on 28th February 1963. It is common ground that Asiatic Soap Co., at the place of destination, were to take delivery of the goods. The consignees did not seek for delivery of the goods until 7th March 1963. When the consignees turned up on 7th March 1963, and sought for release of the wagon, it is also common ground that the defendants, namely, the Southern Railway and the Eastern Railway could not deliver the goods as by then the Inspector of Explosives, East Circle, Calcutta, in conjunction with the police department, has issued orders to the first defendant not to release the tank wagon without reference to them. It is not in dispute that the Inspector of Explosives drew samples of the oil on 8th March 1963, and ultimately is said to have passed orders on 22nd April 1963, permitting release of the commodity to the consignees subject, however, to certain conditions. Ultimately, the wagon was released on 23rd April 1963. The plaintiffs case is that the defendants collected demurrage of Rs. 7491 in connection with the detention of the wagon from 28th February 1963 to 22nd April 1963 and such a collection is unauthorized and is not permissible in law as the plaintiffs are not at fault in the matter of such detention of the wagon at any rate from 7th February 1963 to 22nd April 1963. The defendants were called upon to refund the above sum illegally collected from the plaintiffs. The usual notices under S. 77 of the Indian Railways Act and under S. 80, C.P.C., d. 9th April 1963 were given to the defendants. As the plaintiffs did not have satisfaction of the claim, they filed present action for recovery of the sum of the Rs. 749- 60. 2. The usual notices under S. 77 of the Indian Railways Act and under S. 80, C.P.C., d. 9th April 1963 were given to the defendants. As the plaintiffs did not have satisfaction of the claim, they filed present action for recovery of the sum of the Rs. 749- 60. 2. The first defendant denied that the railways are in any way responsible for the detention, and therefore, claimed that they had the right to collect the demurrage charges as the wagon was not cleared daring the period commencing from 28th February 1963 and ending with 22nd April 1963. Whilst stating that the consignor, consignees and the plaintiffs are bound by the rules in the Goods Tariff which were in force at that time, the first defendant stated that the plaintiffs are not entitled to seek for a refund of the demurrage charges lawfully collected by the defendants. They also raised incidentally the question that the City Civil Court at Madras had no jurisdiction to try the suit and that there was no valid notice under the provisions of the Railways Act. In an additional written statement filed by the first defendant, they brought out the circumstances under which the wagon was detained. They referred to the intervening order of the Inspector of Explosives and how they had no option but to detain the wagon between 7th March 1963 and 22nd April 1963. Their specific case is that the Inspector of Explosives issued release orders even on 16th April 1963, and therefore, the plaintiffs have to suffer demurrage charges from 28th February 1963 to 7th March 1963 and 16th April 1963 to 22nd April 1963. They would attribute such detention to the negligence on the part of the plaintiffs and would state that, as the railing space and the tank wagon could not be put to any other use during the relevant period on account of the conduct of the plaintiffs, the defendants right to recover the demurrage charges is beyond question. In order to substantiate their incidental defence as to negligence on the part of the plaintiffs, they would refer to a previous incident which happened in relation to the movement of similar goods by the plaintiffs under the similar tank wagon which was also detained in February 1963, but prior to the movement of the suit wagon, and which was involved in a fire accident on 18th February 1963. Based on this, it is said that the plaintiffs negligence was the cause for the detention of the wagon and that therefore, they are not entitled to a refund of the demurrage charges. 3. The second defendant adopted the written statement of the first defendant. The learned trial Judge framed the following issues for trial: 1. Are the defendants liable to pay the amount collected from the plaintiff? 2. Is the collection of the amount illegal? 3. Was the delay in taking delivery of the consignment due to any act of the defendants? 4. Was there a valid notice as required by law? 5. Has this court no jurisdiction to try the suit? 6. Is the plaintiff entitled to claim interest? 7. To what relief, if any, is the plaintiff entitled? He held that the notices issued by the plaintiffs both under the provisions of the Railways Act and under S. 80, C.P.C. were in order, and on the main issues he found that the plaintiffs were not entitled to the refund of the amount paid as demurrage charges. On issue No. 3 he held that the defendants were not responsible for non-delivery of the wagon in any event after 7th March 1963. On the issue of jurisdiction, he held that the Madras court had jurisdiction as the consignment was effected at Tadepalligudem, within the jurisdiction of the first defendant railway. On issues 6 and 7 which were consequential he had to find against the plaintiffs. In the result, the suit was dismissed with costs. 4. The subject under consideration can be satisfactorily disposed of under two heads. It is the admitted case of the parties that prior to 7th March 1963, the plaintiffs or their consignees did not turn up at the delivery station for releasing the consignment at the destination. It, therefore, follows that the plaintiffs are liable to pay demurrage charges as per the rules for this period since the wagon was on the rails and it was occupying space and the wagon remained unutilised during such period as above. Excepting for the time which is ordinarily known as grace time within which such wagons could be cleared by consignees, for the rest of the period the claim for demurrage charges has to be suffered by the plaintiffs, since it was only due to their omission the wagon was not cleared. Excepting for the time which is ordinarily known as grace time within which such wagons could be cleared by consignees, for the rest of the period the claim for demurrage charges has to be suffered by the plaintiffs, since it was only due to their omission the wagon was not cleared. The parties, therefore, are directed to file a memo showing the amount of demurrage which has to be paid during this period in accordance with the rules prescribed therefor. To the extent of the amount so reckoned by the parties, the plaintiffs are not entitled to relief. 5. The next head under which the claim for refund could be considered relates to the period commencing from 7th March 1963 and ending with 22nd April 1963. We have already seen that during this period there was an effective prohibitive order from the Inspector of Explosives, who acted in conjunction with the police department, preventing the release of the consignment to the consignees even though they were ready and willing to take delivery of the same. It is not in dispute that the representative of the consignees came on 7th March 1963, and he was informed that the wagon could not be released as there was an order dated 6th March, 1963, prohibiting the release of the goods as per the order under Ex. B.12. The question for consideration is whether the plaintiff should pay demurrage charges during such involuntary detention of the consigned goods due to the act of third parties and when the non-release of the goods is not attributable to any act or omission on the part of the plaintiff. 6. Before we consider the relevant evidence and the documents touching upon this aspect of the case, it would be convenient to deal with the provisions of law which enable the railway authorities to charge, claim and collect demurrage from the defaulting parties. Chap. V of the Indian Railways Act deals generally with the subject relating to ‘Traffic facilities’. S. 46-C appearing in this chapter defines certain words and expressions which are to be adopted for the various traffic facilities dealt with under this Act in Chap. V. S. 40-C (d) and (h) define respectively the words ‘demurrage’ and ‘wharfage’. ‘Demurrage’ means the charge levied after the expiry of the free time allowed for loading or unloading waggon. S. 46-C appearing in this chapter defines certain words and expressions which are to be adopted for the various traffic facilities dealt with under this Act in Chap. V. S. 40-C (d) and (h) define respectively the words ‘demurrage’ and ‘wharfage’. ‘Demurrage’ means the charge levied after the expiry of the free time allowed for loading or unloading waggon. ‘Wharfage’ means the charge levied on goods for not removing them from the railway premises after the expiry of the free time allowed for such removal. We have also referred to the definition of ‘wharfage’ as the learned counsel for the respondents would apply the principles governing ‘wharfage’ as being in pari materia with those applicable to ‘demurrage.’ 7. In our view, there is a marked distinction between ‘demurrage’ and ‘wharfage’. The traffic facilities which the public could avail themselves of through the railways are all afforded in public interest as far as possible and during the time when the goods are in transit or during carriage the railways are particular that both in the matter of loading and unloading of the consigned goods there should not be inordinate delay on the part of the consignor or the consignee, as the case may be. If a wagon is unnecessarily delayed at the station of despatch where it has to be loaded, then it follows that that wagon which could serve the community at large is detained for no purpose beyond the time necessary, and as the same is kept without movingand as this lack of movement is attributable to any laches on the part of the consignor, law prescribes a mandate empowering the railway authorities to recover what is known as ‘demurrage,’ due to such delayed loadings. The same principle applies in the case of delayed unloadings also. In the instant case, we are concerned with delayed unloading. If a wagon reaches the station o f destination and if for no fault of the railway but due to an act of omission or commission on the part of the consignee, the concerned wagon is not cleared, then to that extent, public interest suffers and the railway is entitled in those circumstances to collect from the defaulting party demurrage in accordance with the prescribed rules and rates. In contradistinction to this levy, the right to collect wharfage arises after the transit ends. In contradistinction to this levy, the right to collect wharfage arises after the transit ends. For various reasons and again possibly to make a particular wagon available to the community at large for being utilised otherwise, the railway after perceiving that there is a delay in unloading, might remove the goods in the wagon and keep them in their own premises. This can be done even after the expiry of the free time allowed for the removal of the goods. Once they remove the goods from the waggon into their premises, law enables them to collect a charge for keeping such goods removed from the wagon in their premises. The incidence of charge is traceable not to the activity of the railway as a carrier, but it springs from its voluntary act of taking the responsibility of being an involuntary warehouseman of the trader. The railway has two options. It can keep on the fewagon containing the goods on the railway beyond the free time allowed and claim demurrage until it is released at the request of the consignee. This levy is inextricably connected with the contract of carriage, because the goods are still in transit when it lies in the custody of the rail way in the same state at which it left—the station of despatch. The second alternative left to the railway is to remove the goods from the wagon and snap the chain of the contract of carriage and take the goods to their own warehouse and keep them until they are removed by the consignee. The charge they are entitled to levy by way of wharfage is therefore referable to the act of the railway in taking custody of the goods for themselves by keeping them in their premises and claim what is popularly known as “rent for such keeping”. This levy is not always payable by the consignor to the consignee. As we said, the right to collect the same arises when the railways choose to act in the alternative as set forth above and remove the goods for safe custody. There is no element of complaint in the levy of wharfage, because it is directly and intimately connected with the decision of the railway to remove the goods from the waggon which is on the lines to their premises or godowns. If such a removal is not caused, no question of wharfage will arise. There is no element of complaint in the levy of wharfage, because it is directly and intimately connected with the decision of the railway to remove the goods from the waggon which is on the lines to their premises or godowns. If such a removal is not caused, no question of wharfage will arise. Again, if the consignee causes clearance of the goods when the waggon is on the rails, no question of payment of wharfage will arise. In such circumstances, whether the consignor or consignee is liable to pay demurrage would depend upon whether the clearance of the wagon was made within the free time allowed or beyond it. 8. If the above distinction between the nature of the levies, namely, demurrage and wharfage, is borne in mind, then the question that arises in the instant case is whether the demurrage charged by the respondent is justified and lawful. The plaintiffs did not examine any witness, but the defendants examined three witnesses on their side and filed as many as 31 documents to sustain their demand for demurrage. D.W. 1 is the Inspector of Explosives, Central Circle, Gwalior. XXXX [The discussion of facts is omitted—Ed.] 10. It is common ground that desolventsing could be done only after the discharge of the tank wagon from the goods shed. It is thus clear that at the time when the wagon was released to the plaintiffs, they were only asked to desolventise the dangerous solvent, and it cannot be said in the circumstances that he was himself aware of any such dangerous solvent as being the component of the rice bran oil. Thus, neither the defendants nor the plaintiffs are responsible for the detention of the wagon between 7 th March, 1963 and upto 22nd April, 1963. But, the argument is that on a prior occasion, the plaintiffs sent a similar wagon which later exploded because of its dangerous contents, and therefore it must be presumed that this wagon also was consigned with such knowledge of contamination and all the awareness that it was dangerous petroleum. This assumption is far fetched. An attempt was made by Mr. Srisailam to refer to S. 59 of the Indian Railways Act to show that the railways have the authority to refuse dangerous or offensive goods. S. 59(3) provides for such a power. This assumption is far fetched. An attempt was made by Mr. Srisailam to refer to S. 59 of the Indian Railways Act to show that the railways have the authority to refuse dangerous or offensive goods. S. 59(3) provides for such a power. But nowhere it has been pleaded that the railway was kept in the dark about dangerous or offensive nature of the goods and the plaintiffs with knowledge, of such an inherent danger hoodwinked the railway in booking the wagon. Even S. 58(5) which is an enabling section which would empower the railway authorities to claim detention charges when the goods are detained for examination, has not been invoked in the instant case either in the correspondence or in the pleadings. The defendants have not established that the plaintiffs deliberately caused the tender or delivery of dangerous goods for earriage without marking their nature on the outside of the package containing them. R. 157 enables the railway authorities to cause such a delinquent tenderer to be brought to book under the provisions of the Indian Railways Act and impose a penalty on him to the extent of Rs. 500 and make him responsible for any loss, injury or damage which may be caused by reasons of such goods having been brought upon the railway. Excepting for a bare reference to Ss. 58(3), 59(3) and R. 137. there is nothing in the correspondence or even in the written statement filed to show that such was the attitude of the railway. It is common ground that the railway did not detain the goods. It is only on a police complaint the Inspector of Explosives, who is a third party to the contract of carriage, caused such a detention. It may be a different thing altogether if the railways acted of their own and gave out to the plaintiffs that they are detaining the goods for purposes of examination. In such case, the plaintiffs cannot escape liability as the liability is clear that the tender of goods, which on examination are found to be dangerous, without expressly marking them to be so is punishable, and consequentially loss or damage has to be borne by the person who commits a breach of such prescriptions contained in Ss. 58, 59 and R. 157. But, here, the facts are entirely different. The railways had no such knowledge. They permitted the carriage of the goods. 58, 59 and R. 157. But, here, the facts are entirely different. The railways had no such knowledge. They permitted the carriage of the goods. They had to detain the goods beyond free time because third party intervened. At this belated stage, therefore, it Is not open to the railway to retrace back and come out with the story that since the goods have been analysed at the instance of a third party and found to contain dangerous petroleum, it should be deemed as if the plaintiffs hoodwinked the authorities to accept the consignment for carriage and that such a consignment even at the inception was offensive or dangerous goods. Even the sampling report in the instant case had not given us a reasonable impression that they are offensive or dangerous goods. They were permitted to be released by experts with a direction that the dangerous solvent may be desolventised. The flashing point of the dangerous element was found to be variable. It could not, therefore, be said with precision that the plaintiffs themselves were aware of such an element, which could only be discovered after analysis. The plaintiffs bona fide tendered the goods for carriage and the railways also did act in the same way when it accepted the goods. 11. If, therefore, neither the plaintiffs nor the defendants are responsible for the detention, and if it is only a third party who was intervening, is solely responsible for the delay in the discharge of the wagon, could it still be said that the plaintiffs cannot claim back the detention charges for the period commencing from 7th March, 1963 to 22nd April, 1963, during which period, for no fault of the plaintiffs or of the railway, the goods were detained. Impotentis execusat legam —inability is an excuse in law. Where the law creates a duty or charge, and the party is disabled to perform it without any default in him, and has no remedy over, there the law will in general excuse him; and though impossibility of performance is in general no excuse for not performing an obligation which a party has expressly undertaken by contract, yet when the obligation is one implied by law impossibility of performance is a good excuse. 12. 12. We have already referred to the fact that whatever the principles might be which would govern the levy or refund of wharfage charges, those principles will not apply to demurrage charges. The right to claim wharfage is irretrievably connected with the voluntary services which the railways undertake as warehouseman to the consignees. For such indisputed services rendered by a third party, a person who had the benefit of it cannot escape liability, and he should pay for the same. But, in the case of demurrage, an examination is required as to whether the consignees are at fault either in the matter of the tender of goods at the station of despatch or have committed any act or omission in the course of the contract of carriage or at the station of destination which would disentitle them from seeking for an exemption from the payment of demurrage charges. If in a given case, it is established that be is responsible for such detention, or in the alternative, he is the cause for such detention, then it is obvious that he has to undertake the responsibility to pay the detention or demurrage charges. But, if, on the other hand, neither be nor the railway, as in the instant case, could be blamed for such detention, then it is but equitable that the plaintiffs should not be called upon to shoulder the responsibility of payment of demurrage charges during the period when they are not at fault, when the detention is not attributable to any overt, express or implied act on their part. In the above view, we are unable to agree with the learned City Civil Judge that there is a chance of the goods becoming dangerous by the presence of petroleum, the presence of which element the plaintiffs were not aware of it, and they should suffer the demurrage willy nilly for no fault of theirs. The learned Judge laid great stress upon the incident that happened in the past when one similar wagon booked by the plaintiffs exploded. Reference to earlier incident is not quite relevant for purposes of this case. It cannot be assumed, as if axiomatically, that once the plaintiffs goods exploded during the subsistence of the contract of carriage of goods consigned by them it should always be presumed that in later consignments sent, it would also contain dangerous or offensive goods. Reference to earlier incident is not quite relevant for purposes of this case. It cannot be assumed, as if axiomatically, that once the plaintiffs goods exploded during the subsistence of the contract of carriage of goods consigned by them it should always be presumed that in later consignments sent, it would also contain dangerous or offensive goods. The learned Judge also misconceived the situation by applying S. 58(5), when, as stated by us earlier there was not even a plea regarding the same. 13. For the reasons already stated, there is absolutely no justification for the defendant-railway to recover demurrage charges in any event for the period commencing from 7th March 1963 and ending with 22nd April 1963. Any levy made and collected without authority is illegal. But, the plaintiffs have already paid the demurrage charges so that they could follow up the instructions of the Inspector of Explosives. But, such payment having been made in the circumstances stated above, the defendants are not entitled to retain the same in their hands. The plaintiffs, therefore, are entitled to such portion of the demurrage charges which is relatable to the period commencing from 7th March 1963, and ending with 22nd April 1963. We have indicated that in order to enable the drafting of the decree, the parties might file an agreed memo stating that the amount to which the plaintiffs would be entitled to refund in the light of our judgment as above. 14. No other question was argued before us. Learned counsel for the respondents did not canvass the correctness of the finding on issue 5, and on those findings of the court below which were rendered in favour of the plaintiffs. In the result, the appeal is partly allowed, and the plaintiffs-appellants would be entitled to a refund of that part of the demurrage charges as detailed above with no interest but with proportionate costs throughout. The balance of the claim is dismissed. No costs.