L.C. Adami, J.

1. In both the suits which give rise to the second appeals covered by this judgment, the plaintiffs, who are merchants carrying on business at Deoghur, sued the Bengal Nagpur Railway and the East Indian Railway Companies for damages in respect of the detention and loss of certain consignments of Kurthi. The facts in both the suits are practically the same, the only difference being that in Suit No. 15 of 1913 the consignment was made from Cuttack while in Suit No. 4 of 1914 it was made from Berhampur in the Ganjam District, and that while in the former suit the whole number of bags arrived at Deoghur, in the latter the number was short by 2.

2. It seems that with a view to attract more traffic to their Station at Shalimar the Bengal Nagpur Railway Company carries goods to that station at reduced rates, but that it has been agreed between the Railway Companies that having regard to these reduced rates, the re booking of goods between Howrah Station and Shalimar has been forbidden. There is a rule to that effect. The plaintiffs in either suit had discovered that by booking consignments in the first instance to Shalimar at the reduced rates and then having them re-booked via Howrah and the East Indian Railway to Deoghur a great saving in freight could be effected, and once or twice previously they had succeeded in getting the advantage of these rates. The Railway Companies, however, have discovered that this advantage was being taken and demanded a refund of the difference between the direst through rates and the rates at which the plaintiffs had paid.

3. The facts of Suit No. 15 of 1913 will explain both suits. The plaintiffs it that suit through their agent consigned 256 bags of Kurthi from Cuttack to Shalimar on the 20th March 1913 under an invoice at the reduced rate. They did not take delivery of the consignment at Shalimar on its arrival, but, whilst it was on its way, their agent who had asked the booking clerk at Shalimar to re-book the goods via Howrah and the East Indian Railway to Deoghur was told that this could not be done under the rules. He consulted the Railway Officials and then pat in a written Application that the two vans containing the goods which were then on their way might he directed to Deoghur via Howrah. This was allowed and it was arranged that a fresh invoice showing freight from Cuttack to Deoghur should be obtained and presented to the consignee.

4. The vans when they arrived at Shalimar were accordingly sent on via Howrah and the East Indian Railway and in due course arrived one after the other at Deoghur. On their arrival the plaintiffs were called upon to take delivery and the new invoice showing a rate for the through journey from Cuttack through Shalimar and Howrah was presented. Under this invoice no reduced rate was allowed for the portion of the journey between Cuttack and Shalimar, the ordinary full freight being charged throughout the journey. The plaintiffs refused to take delivery at the rates charged, the amount being Rs. 336, maintaining that the portion of the journey between Cuttack and Shalimar should be charged at the reduced rate and that Rs. 186 was the proper amount for height. Also noticing that some of the bags were in a damaged condition and leaking, they demanded that before delivery the consignment should be re-weighed and that a note should be made in the delivery book of any shortage found. The Railway Officials at Deoghur refused re weighment before delivery and as delivery was not taken the Railway Company in due course put the goods up for sale and from the proceeds of the sale deducted the cost of the freight and demurrage. The demurrage amounted to about Rs. 500. The plaintiffs in the suit claimed Rs. 1,458 as the value of the contents of bags which have been sold.

5. The Subordinate Judge found that the plaintiffs were bound to pay freight for the journey from Cuttack via Howrah to Deoghur at the full rates, as they had bound themselves by the act of their agent at Shalimar to pay the freight that was payable for the consignment when it was diverted from Shalimar to Deoghur. He found also that the Station Master at Deoghur was justified in refusing; to re-weigh the goods before delivery to the plaintiffs and that the responsibility of not taking delivery of the consignment was on the plaintiffs and they must be held liable for any subsequent loss or damage that re-salted.

6. The learned District Judge on appeal upheld the main findings of the Subordinate Judge, but, with regard to the liability of the plaintiff to pay full freight for the whole journey from Cuttack to Deoghur, he held that since under the rules the goods could not be re-booked from Shalimar via Howrah, the Railway Company should have charged freight for the direct route via Kharagpur, Adra and Asansol, which would have been the ordinary direst route taken in booking goods from Cuttack to Deoghur. In his opinion, the plaintiffs should have been allowed the reduced rate to Shalimar, but from thence to Deoghur full freight should have been charged for the route from Shalimar via Kharagpur, Adra and Asansol to Deoghur. On this ground he found that the amount charged for freight should be reduced to the sum which it would have reached if it had been computed in this way. Also be found that seeing that the Railway Company should have claimed freight computed in this way and not full freight for the route via Howrah, the plaintiffs were to some extent justified in refusing to accept the amount charged for freight before taking delivery and also that the Railway Company were to some extent to be blamed for the damage which was occasioned by the detention of the goods owing to the refusal of the plaintiffs to take delivery. He, therefore, allowed the appeal but for a reduced claim.

7. The plaintiffs now come up to this Court in second appeal. Their main contention is that since the contract made between the plaintiffs and the Railway Company at Cuttack was that the goods should be carried to Shalimar at the reduced rates and that the goods were so carried, the plaintiffs should be charged only at those reduced rates for that part of the journey up to Shalimar, and that for the rest of the journey freight should be charged for the route actually taken by the vans, namely, from Shalimar via Howrah and the East Indian Railway to Deoghur, which would be much less than the freight for an imaginary journey from Shalimar to Kharagpur and thence via Adra to Deoghur.

8. Mr. Khurshed Husnain contends that there was really no diversion at Shalimar since the vans had arrived, it being their destination, and what the Railway Company really did was to re-book the goods from Shalimar to Deoghur, contrary to their own rules. He urges that the first contract having been carried into effect, the Railway Company cannot now claim that the full and not the reduced rates should be paid for that part of the journey. I do not think that this contention can succeed. What in fact happened was that before the first contract was completed and while the vans were still on their way to Shalimar, the plaintiffs' agent, knowing that the goods could not be re-booked under the rules from Shalimar to Howrah onwards, made an application to the effect that for his previous contract a new agreement should be entered into to take the goods from Cuttack by way of Shalimar and Howrah to Deoghur. This offer was accepted by the Railway Company and under the agreement it was directed that a new invoice should be drawn up showing the journey to be from Cuttack by way of Shalimar and Howrah via East Indian Railway to Deoghur. The plaintiffs consented by implication to pay the ordinary rates of freight chargeable for that journey since Shalimar was no longer to be the destination. This second contract took the place of the first one and the Railway Company were justified in charging the ordinary rates for the through journey, considering the fact that the reduced rates to Shalimar were only allowed when Shalimar was to be treated as the terminus and as to the knowledge of the plaintiffs, there existed a rule that no re-booking might be made from Shalimar to Howrah. There is also a rule to the effect that where reduced rates are allowed up to a certain station and goods are intended to be sent to a station further down the line, advantage cannot be taken of the reduced rates for the portion of the journey for which reduced fares are charged in booking through to the station which is further or, that is to say, differential rates cannot be combined with the ordinary rates so as to claim lees freight for the extended journey. The Railway Company, therefore, was justified in refusing to give delivery of the goods until the proper amount of freight was paid by the plaintiff.

9. The learned District Judge, as pointed out above, has held that the Railway Company should have booked the goods straight through to Deoghur by the ordinary direct route and not via Howrah and, therefore, should only charge freights for the direct route, making allowance for the portion of the journey at reduced rates, and charging for the extra freight occasioned by the necessity to revert from Shalimar to the direct route which should have been taken. The contract, however, and it was made at the request of the plaintiffs, was that the goods should be taken by way of Shalimar and Howrah and the East Indian Railway and in taking the goods by that route, the Railway Company were only carrying out the contract they had made in agreement with the plaintiffs, so the plaintiffs were bound by that contract to pay the freight by that route.

10. With regard to the question of refusal to take delivery before re weighment it is settled that a Railway Company is not bound by law either to re-weigh goods or to certify shortage at the time of delivery. Janki Das v. Bengal Nagpur Railway Company 13 Ind. Cas. 509 : 15 C.L.J. 211 : 16 C.W.N. 356, Jagan Nath Marwari v. Bast Indian Railway Company 45 Ind. Cas. 933 : 22 C.W.N. 902 and Ramjash Agarwala v. Indian General Navigation and Railway Co. Ltd.  41 Ind. Cas. 387 : 22 C.W.N. 310. The plaintiffs, therefore, cannot claim that the refusal to take delivery was justified on the ground that re-weighment was not granted before delivery. It is clear that if the plaintiffs were dissatisfied either with the amount of freight charged or the condition of the goods when they arrived, they should have taken delivery and paid the charges demanded and would then have been able to take steps to obtain any refund which was proved due to them.

11. It seems that the bags in case No. 15 of 1913 were not damaged on arrival, some of them were leaking but the leakage was collected and put into bags.

12. In my opinion any further damage which occurred after the arrival of the bags was due to the plaintiffs' own refusal to take delivery of them.

13. The same arguments apply altogether to the suit No. 4 of 1914. In that case the consignment arrived 2 bags short, but in the plaint there is no allegation that delivery was not taken on account of that shortage and the Railway were quite willing to make allowance for the loss of these two bags. Mr. Khurshed Husnain, however, argues that the plaintiffs were justified in refusing to take delivery because of this shortage and could demand that not only should compensation be given for the two bags, but that a reduction be made in the freight charges by reason that no freight could be charged for bags which had not arrived. As I said, there is no allegation in the plaint that refusal was made because these two bags were missing. Refusal was made partly because the method of reckoning the freight was alleged to be wrong and partly because the Railway Company would not allow a consignment to be weighed.

14. In my opinion then the Railway Company were justified in demanding the full rates of freight from the starting point in each case to Deoghur and the plaintiffs were not justified in refusing to take delivery. The Railway Company were entitled to charge demurrage or wharfage for warehousing or keeping the goods until such time as they found that for the Bake of their preservation they must be sold. Any damage or shortage that occurred after the plaintiffs' refusal to take delivery was due to the plaintiffs' mistaken refusal to take delivery, I would dismiss both the appeals and allow the cross-appeals in both the suits with costs in both the cases.

15. The judgments and decrees of the lower Appellate Court will be set aside and the judgment of the Subordinate Judge be restored in each case. The defendants-respondents will get costs both in this and in the lower Appellate Court.

Das, J.

I agree.