JUDGMENT 1. Plaintiff in O. S. No. 50 of 1983 on the file of the Sub Court, Kottarakkara is the appellant. Suit is for realisation of money. 2. The facts that led to the filing of the suit are as follows: Against an Indent No. 5/79, dated 20th April 1979, of the Chief Engineer, Irrigation, M/s Indian Iron and Steel, Co. Ltd., Calcutta delivered to the railway administration two consignments of 455 quintals of 32 m.m. dia M. S. rods in four bundles as per R. R. No. A-335039, dated 13th February 1980 and 572 quintals of 28 m.m. dia M. S. rods in 5 bundles as per R. R. No. A-335040 dated 13th February 1980 to be carried by railway from Calcutta to Punalur Railway Station for delivery to the Executive Engineer, Kallada Irrigation Project Division No. IV, Punalur. The consignment of 32 m.m. M. S. rods reached Punalur Railway Station on 1st April 1980. The consignee deputed the Assistant Engineer in. charge of the stores to take delivery of the consignments. He inspected the consignments on 1st April 1980 itself in the presence of the Station Master, Punalur Railway Station' and found that the bundles were broken completely and the packing disturbed. Suspecting shortage of consignment, the consignee requested - the Divisional Commercial Superintendent, Southern Railway, Madurai on 1st April 1980 for re-weighment of the consignment. There was no response from him till 28th April 1980, inspite of reminders. The matter was brought to the notice of the Assistant Commercial Superintendent, Southern Railway, Madurai during his tour to Quilon on 24th April 1980. He also did not take any action. As per letter dated 25th April 1980, the Divisional Railway Manager, Commercial Branch, Madurai rejected the request of the consignee for re-weighments of the consignments without assigning any reason therefor and the consignee was directed to take delivery of the consignments after paying all charges due. Accordingly, the consignments were taken delivery on 29th April 1980 under protest after entering remarks "packing disturbed and bundles broken up" in page 7 of the Foreign Goods Delivery Book of Punalur Railway Station. The materials were weighed at the lorry way bridge of M/s. Sundaran Enterprises, Punalur and shortages were noticed in the two consignments as detailed in the plaint. Goods were delivered only after releasing a sum of Rs. The materials were weighed at the lorry way bridge of M/s. Sundaran Enterprises, Punalur and shortages were noticed in the two consignments as detailed in the plaint. Goods were delivered only after releasing a sum of Rs. 36,403.20 towards demurrage charges for the period from 1st April 1980 to 24th April 1980. The consignee preferred claims for compensation for the shortage of goods and for the refund of demurrage charges with the Chief Commercial Superintendent, Southern Railway and with the Divisional Commercial Superintendent, Southern Railway. The claim for compensation for shortage was rejected. Plaintiff sent a suit notice on 12th May 1982 to 2nd defendant under S.80 of Code of Civil Procedure. After accepting the notice, defendants agreed to refund a sum of Rs. 29,122.60 being the 80 per cent of the demurrage charges realised from the plaintiff. The suit is for realisation of the balance of demurrage charges and compensation for the shortage of goods. 3. In the written statement filed by defendant, it is contended that the railway had exercised due care and caution and there was no negligence or misconduct on the part of the railway administration of its servants in handling the goods. Defendant denied the liability to pay compensation and refund of the balance amount of demurrage paid by the plaintiff. 4. On a consideration of the evidence, the court below found that damage was caused to the goods and in that view of the matter, the court below passed a decree for recovery of Rs. 7,892.48 by way of damages. As regards the claim for refund of demurrages, the court below held that the railway was not liable to refund the demurrage charges, as the plaintiff failed to take delivery and insisted on re-weighment at the railway premises. 5. In this appeal, learned Government Pleader has challenged the finding of the Trial Court. Learned Government Pleader submitted that having refunded 80 per cent of the demurrage, there is no reason for not refunding the balance of the" demurrage and that the: court below was not justified in not granting relief of refund of the balance of the demurrage paid by the plaintiff. Learned Government Pleader submitted that having refunded 80 per cent of the demurrage, there is no reason for not refunding the balance of the" demurrage and that the: court below was not justified in not granting relief of refund of the balance of the demurrage paid by the plaintiff. He also contended that it is on account of the shortage and refusal of the: railway administration to give open delivery after weighment that the plaintiff could not take delivery earlier and in the circumstances, plaintiff cannot be saddled with any liability to pay demurrage. 6. The question that falls for consideration is whether the plaintiff can insist that it would take delivery only on compliance by Railway administration with the request made by the plaintiff to make weighment and give open delivery. The court below has found that there was damage and a decree was given in favour of plaintiff for recovery of an amount of Rs.7,892.48 on that basis. On the question of liability to pay demurrage, the lower court, however, found against plaintiff since it was of the view that the plaintiff was bound to take delivery and then claim damage and that plaintiff has no right to refuse the claim for demurrage for the reason that the consignments were damaged and that the Railway administration did not give open delivery or make re-weighment notwithstanding the damage, 7. Learned Standing Counsel for the Railway brought to my notice S.77 (4) of the Indian Railways Act and submitted that this provision has been enacted for the purpose of avoiding accumulation of goods on the railway platform and causing inconvenience. Learned counsel also invited my attention to some authorities on the point. In Union of India, representing the General Manager, South Eastern Railway, Calcutta v. M/s Ibrahim Gulaba Tobacco Merchant & others AIR 1966 M.P. 52 , the Madhya Pradesh High Court had occasion to consider the question whether the railway was bound to give open delivery to the consignee. The court made the following observations in the course of judgment: "It is well settled that the Railway Administration is not bound to give open delivery on the demand of the consignor. The consignee has no right that the goods shall be opened and inspected in the railway premises before he can be called upon to take delivery. The court made the following observations in the course of judgment: "It is well settled that the Railway Administration is not bound to give open delivery on the demand of the consignor. The consignee has no right that the goods shall be opened and inspected in the railway premises before he can be called upon to take delivery. The proper course for the consignee is that he should take delivery of the consignment in the condition in which it is found after giving notice to the officer giving delivery as to its condition and then sue the Railway Company for damage. See: Jusaf and Ismail Co., Saoner v. Governor General-in-Council [ILR (1947) Nag. 335 : AIR 1948 Nag. 65]; Ambalal v. Union of India, S. A. No. 485 of 1950 D/15-9-1954 (Nag.); G.J.P. Rly. Co. v. Firm Manikchand Premji, AIR 1931 Nag. 29; G. G. in Council v. Firm Badri Das Gauri Dutt, A.I.R, 1951 All. 702; Dominion of India v. Netai Chandra, AIR 1952 Cal. 726 and Union of India v. Gendmal, First Appeal No. 135 of 1956, D/-27-11-1959,1960 M.P.L.J. (Notes) No. 23. This being the settled position of law, the plaintiff should have accepted delivery of the goods on 7th August 1959 itself. Unjustifiably, he continued insisting on open delivery after assessment being given to him. Eventually, he took delivery on 12th December 1959. Thus, he himself substantially contributed to the delay and further deterioration of the goods. The manner in which he took delivery on 12th December 1559 could as well have been followed by him on 7th August 1959." In that particular case, the court allowed refund of the demurrage as the defendant did not raise a plea, that they are not liable to refund, in the written statement filed by the Railway Administration. 8. The same question came up for consideration of the Patna High Court in M/s Dehri Rohtas Light Rly. Co. Ltd. v. East Keshalpur Colliery and another AIR 1983 Patna 46 and it observed as follows: "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. Co. Ltd. v. East Keshalpur Colliery and another AIR 1983 Patna 46 and it observed as follows: "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. A consignor or a consignee is entitled to sue the railway for damages in such cases and if, he refuses to take delivery he does so, at his own risk," Again the question came up for consideration of the same court in The Union of India v. Gyant Ram Bhaggat Ram AIR 1967 Patna 32 where the court said as follows : "As I have already stated, it is well settled that the Railways are not bound by the law to reweigh the goods or certify shortage at the time of delivery of the goods to the consignee. The first part of R.13 makes it perfectly clear that one of the conditions imposed by the Railways in connection with the booking of a consignment is that they would not weigh the consignment at the destination station. In exceptional cases, however, weighment at the destination station can be allowed at the discretion of the Railways when in their opinion the condition of a particular consignment or package warrants such a weighment. When the Railways are not bound by law to reweigh a particular consignment at the destination station, it is really difficult to hold that a consignee can found his claim for damages in absence of any proof of actual damage of the goods because under R.18 reweighment at the destination station is permissible by the Railways at their discretion in certain exceptional cases. It is for the Railways to decide in a particular case whether there are justifying circumstances for reweighment at the destination station or not. A consignee may be fully justified in asking for reweighment at the destination station but if in law the Railways are not bound to give open delivery of the consignment, the consignee cannot base his claim merely on the refusal, rightly or wrongly, of the railway authorities to give open delivery of the consignment. The Railways as a bailee are no doubt bound to deliver the goods to the consignee as soon as the consignment reaches the destination station. The Railways as a bailee are no doubt bound to deliver the goods to the consignee as soon as the consignment reaches the destination station. They were also no doubt bound to compensate for the loss or damage, .if any, of the consignment if the consignment is booked at railway risk." This court also had occasion to consider a similar question in State of Kerala v. Union of India 1990 (1) KLT 396 and it held that under S.77(4), the consignee has liability to pay demurrage or wharfage so long as the goods are not unloaded from the wagon or removed from the railway premises. It also held that as the consignee has no right to demand that the goods shall be opened and inspected in the railway premises before he can be called upon to take delivery, he cannot leave the consignment at the railway premises or in the wagon and call upon the railway officials to reweigh the consignment and contend that as there was shortage as found out on reweighment, he is not liable for wharfage. 9. In the light of the principles enunciated in the above decisions, and also in view of the provisions contained in S.77(4) of the Indian Railways Act, it has to be held that plaintiff could not have insisted that reweighment has; to be made before removing the goods from the railway premises. 10. It follows that the court below was justified in holding that the plaintiff was liable to pay demurrage and the defendant was entitled to deduct the same from the compensation amount. Incidently, it may be mentioned that in this case the railway was fair enough to forgo 80 per cent of the demurrage and only collected 20 per cent of the demurrage- The judgment and decree of the court below are correct and do not call for any interference. In the result, appeal fails and it is accordingly dismissed. However, there will be no order as to costs.