RFA 14/2008 BEFORE THE HON’BLE MR.JUSTICE RANJAN GOGOI HON’BLE MR.JUSTICE C.R.SARMA This appeal is directed against the judgment and decree, dated 14.11.2007, passe d by the learned Civil Judge (Sr. Div.) No.2, Guwahati, in Money Suit No.72/2004 . 2. The plaintiff’s case in brief, may be stated as follows :- On the basis of a supply order, issued by the defendant No.3, the plaint iff supplied ration item to the defendant No.3 and the total bill amount, toward s the supply of ration, during the period from June,2001 to May,2002, came to Rs .52,06,781/-. Against the said bill amount, the plaintiff received payment, for the supply made, for the months of September,2001 to March,2002 and thus an amou nt of Rs.20,73,522/-, being the bill amount for supply of goods in the months of June 2001, July 2001, August 2001, April 2002 and May 2002 remained unpaid. In spite of demanding the payment of the said balance amount, as the defendant No.3 failed to respond, the plaintiff served a pleader’s notice, dated 17.3.04, on t he defendants by registered post with A/D. The notices were duly received by def endant Nos. 1,2 and 3 on 19.3.04, 20.3.04 and 28.3.04 respectively. By the said notice, the plaintiff demanded immediate payment of Rs.20,73,522/- together with interest @18% from the date of the bill till actual payment, and Rs.5000/- towa rds the cost of notice and Rs.1,00,000/- as compensation for causing harassment and mental agony. As the defendants failed to respond to the said notice, the pl aintiff instituted the suit for realisation of an amount of Rs.25,39,028/- with interest thereon at the rate of Rs.18% with cost of the suit. 3. The defendants contested the suit, by filing written statement. In their written statement, the defendants contended, inter alia, that the suit was not maintainable on facts and law and also for non-service of notice under S ection 80 of CPC. Admitting the plaintiff’s claim, regarding existence of a cont ract and the supply of ration items by the plaintiff to the defendant No.3 for t he period from June,2001 to May,2002 as per the conditions laid down in the supp ly order, the defendants averred that, against the supply of dry ration for the month of June,2001 to Augus,2001, an amount of Rs.12,03,430/- was paid by the de fendant No.3 to M/s Manoj Enterprises, Chatribari, Guwahati by Govt. Draft No.00 7273, dated 4.12.01, which was received by one Shri S.R. Bagree, on behalf of M/ s Manoj Enterprises on 4.12.01, and that again payments of Rs.18,05,982/- and Rs .13,20,388/-, towards supply of dry ration for the months of September,2001 to M arch,2002, were also made by the defendant No.3 in favour of the M/s Manoj Enter prises, vide Pay Cheque No.37 dated 30.2.02 and Pay Cheque No.59 dated 29.6.02 a nd that the said payment was received by one Prahlad Singh Tanwar, on behalf of M/s Manoj Enterprises. It is contended by the defendants, in their written state ment, that the payment in respect of the bills for the month of April,2002 and M ay,2002 were held up on the basis of the letter No. S/V III-101/1999-2000/Pt/143 dated Guwahati the 1st March,2003, issued by defendant No.2 thereby directing t he defendant No.3 not to release any payment to the plaintiff for the period fro m April,2002 to May,2002, due to the latter’s involvement in forgery. It is stat ed, in the written statement, that due to involvement of the plaintiff in forger y and production of false documents regarding Sales Tax Registration Certificate , at the time of submitting the tender paper for obtaining the supply order, a F IR was lodged by the Deputy Superintendent of Police, CID, Assam and that CID P. S. Case No.18/04, under Section 420/468/471 IPC, was registered against the plai ntiff. According to defendants, the payment for supply of dry ration for remaini ng two months i.e. April,2002 and May,2002, amounting to Rs.8,60,977/- was held up by the Assam Police HQRs. for involvement of the plaintiff in forgery and pro duction of false documents regarding AGST registration certificate. 4. Upon pleadings of both the parties, the learned trial Judge fram ed the following issues :- (i) Whether the suit is bad for non-service U/s 80 CPC? (ii) Whether the suit is maintainable? (iii) Whether the suit is barred by limitation? (iv) Whether the plaintiff is entitled to get decree for Rs.20,73,522/-? (v) Whether the plaintiff is entitled to get interest @ 18% per annum as pra yed for? (vi) To what other relief/or reliefs, the parties are entitled? 5. The plaintiff examined himself as PW.1 and he was cross-examined on behalf of the defendants. The defendants did not adduce any evidence. The le arned trial Judge, by the impugned judgment and order under appeal, dismissed th e plaintiff’s suit resulting in this appeal. 6. We have heard Mr. O.P. Bhatti, learned counsel appearing for th e appellant-plaintiff and Mr. P. Deka, learned Govt. Advocate appearing on behal f of the respondents-defendants. 7. Mr. Bhatti, learned counsel for the appellant, taking us through the pleadings of the parties, as well as the evidence on record, submitted that the learned trial Judge committed error by deciding that the suit was bad for w ant of proper notice, under Section 80 CPC, and that the suit was not maintainab le in the eye of law. It is also submitted that the learned trial Judge committe d error by holding that the plaintiff was not entitled to get payment towards su pply of goods, on the ground that the supply order was obtained fraudulently. It is further submitted, by the learned counsel, that, as the respondents-defendan ts had duly received the goods supplied and admitted the withholding of an amoun t of Rs.8,60,977/- being the bill amount for supply of goods for the month of Ap ril,2002 and May,2002, there could be no reason to deny payment, in respect of t he goods received, by the defendants on the ground that the supply order was obt ained by the appellant-plaintiff by playing forgery, producing false document re garding AGST registration and that the learned trial Judge committed error by re fusing to pass a decree in favour of the plaintiff. It is also submitted, that a s the claim arose out of a commercial transaction, the appellant-plaintiff was e ntitled to get interest at the commercial rate charged by the Bank and as such t he learned trial Judge committed error by holding that the appellant-plaintiff w as not entitled to claim interest for want of any agreement towards the payment of interest. Summing up his argument, the learned counsel for the appellant subm itted that, as the appellant-plaintiff, in his capacity, as the sole Proprietor of M/s Manoj Enterprises, supplied goods to the respondents-defendants, he was e ntitled to get payment being the price of the goods supplied, along with interes t. 8. Refuting the argument, advanced by the learned counsel appearing for the appellant-plaintiff, Mr. P. Deka, learned Govt. Advocate submitted that , as the notice under Section 80 CPC was issued by the appellant-plaintiff on be half of M/s Manoj Enterprise the Suit having been filed by the appellant-plainti ff in his capacity as the Proprietor of M/s Manoj Enterprises, was bad for want of notice, inasmuch as no notice for and on behalf of the plaintiff was issued, as the Proprietor of M/s Manoj Enterprises. Supporting the impugned judgment and decree, the learned Govt. Advocate submitted that the appellant-plaintiff obtai ned the supply work by producing false and forged document and as such the respo ndents-defendants, after coming to know about such forgery, withheld the payment of Rs.8,60,977/- being the bill amount for the months of April and May,2002. It is also submitted that the payment for the period w.e.f. 2001 to March,2002 has already been made in the name of M/s Manoj Enterprises and the Government Draft s towards the said payment were received by one Mr. Bagri, on behalf of M/s Mano j Enterprises. It is also contended by the learned Govt. Advocate, that there is no outstanding amount payable to the appellant-plaintiff, except the said amoun t of Rs.8,60,977/-, which has been rightly withheld on the grounds aforesaid. 9. The appellant-plaintiff instituted the suit in his capacity as t he sole Proprietor of M/s Manoj Enterprises. The respondents-defendants, in thei r written statement, at paragraph-6, admitted that order was issued in favour of the appellant-plaintiff for supply of ration items for the period from June,200 1 to May,2002 to the respondent-defendant No.3 on the basis of tender. It is als o admitted by the respondents-defendants that an amount of Rs.12,03,430/- was pa id to M/s Manoj Enterprises against the supply of goods for the period w.e.f. Ju ne,2001 to August,2001 and that the said payment was received by Sri Bagri on be half of M/s Manoj Enterprises. The appellant-plaintiff, in his plaint has pleade d that he is the Proprietor of the firm, namely, M/s Manoj Enterprises. The resp ondents-defendants have not denied the said claim. Therefore, there is no disput e that the appellant-plaintiff is the sole Proprietor of M/s Manoj Enterprises. 10. Mr. O.P. Bhatti, learned counsel for the appellant, relying on t he decision held in the case of M/S Auto Engineering Works vs. Bansal Trading Co . & Ors., reported in 1998 (1) GLT 181, and referring to Order 30 Rule 10 of CPC , has submitted that the plaintiff, being the sole proprietor of M/s Manoj Enter prises, has rightly instituted the suit in his name and that the learned trial J udge committed error, in law, by deciding that the suit, not being filed in the name of M/s Manoj Enterprises, was not maintainable and that the notice under Se ction 80 CPC, having been issued in the name of M/s Manoj Enterprises and the su it, being filed by the plaintiff, was bad for want of proper notice. In the case of M/s Auto Engineering (supra), which was a sole proprietor ial firm, the suit was filed in the name of the said firm. The trial Court dismi ssed the suit for want of territorial jurisdiction. On appeal, while dismissing the appeal, a Division Bench of this Court, referring to the provision of Order 30 Rule 10 of CPC, held that the sole proprietor of the said firm should have fi led the suit in his capacity as the representative or Proprietor of the firm. In the above referred case, this Court observed as follows:- ................................... In the instant case M/s. Auto Engineering W orks may not be a firm but admittedly the said trade is run in the name of M/s. Auto Engineering Works by Shri Brajalal Banik claiming himself to be the sole pr oprietor of the trade running in the name and style of M/s. Auto Engineering Wor ks. That being the position, the mischief of order 30 Rule 10 comes into operati on even in the instant case and by going through Rule 10 with that of the report ed case so cited AIR 1932 Bombay 516(supra), we are constrained to hold that in such circumstances it was incumbent on the part of Shri Brajalal Banik as to fil e the suit in the capacity of his being the representative or Proprietor of the said trade M/s Auto Engineering Works which in the instant case has not been don e..................................... 11. In the case of Bhagvan Manaji Marwadi & Ors. Vs. Hiraji Premaji Marwadi, reported in AIR 1932 Bombay 516, a Division Bench of Bombay High Court observed that a person trading himself or as a firm or in an assumed or trading name can be sued in his trading name under Order 30 Rule 10 CPC, but he cannot sue in that name. Order 30 Rule 10, CPC reads as follows :- Order XXX (10). Suits against person carrying on business in name other than his own. Any person carrying on business in a name or style other than his own na me, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature o f such case permits, all rules under this Order shall apply accordingly. Order 30 Rule 1 of CPC, which provides the provision for filing suits in the name of firms reads as follows :- Order XXX (1). Suing of partners in name of firm. (1) Any two or more persons claiming or being liable as partners and carryin g on business in India may sue or be sued in the name of the firm (if any) of wh ich such persons were partners at the time of the accruing the cause of action, and any party to a suit may in such case apply to the court for a statement of t he names and addresses of the persons who were, at the time of the accruing of t he cause of action, partners in such firm, to be furnished and verified in such manner as the court may direct. (2) Where persons sue or are sued as partners in the name of their firm unde r sub-rule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or t he defendant, suffice if such pleading or other document is signed, verified or certified by any one of such persons. 12. A comparative study of the Rule 1 and 10 of Order 30 reveal that a single person, who is the sole proprietor of firm, can’t sue in the name of t he firm, in which name he carries on business. Therefore, in case of sole propri etorial firm, even if the business is run in the name of a firm, the suit is req uired to be filed by the proprietor in his own name as the representative or pro prietor of the firm, but such business firm can be sued. In view of the above, w e respectfully agree with views taken by the Division Bench of this Court and th e Bombay High Court aforesaid. 13. In the back-drop of the above law, we have no hesitation in hold ing that the suit was rightly instituted by the plaintiff, in his name as the so le proprietor of the firm, in which name he, as the proprietor used to run his b usiness of supplying goods to the respondents. Therefore, the suit, being brough t in the said capacity, was in conformity with the provision of Order 30 Rule 10 of CPC. That apart, the notice, issued by the plaintiff in the name of M/s Manoj Enterprises, was received by the defendants and the suit has been filed after t he expiry of the statutory period. In the notice, as required by Section 80(1) o f CPC, the cause of action, the name, description and place of residence of plai ntiff and the relief, which he claims is required to be mentioned and the plain tiff should confirm a statement that such notice has been so delivered or left. There is nothing on record to show that the said notice, issued by the plaintiff , did not contain the above requirements. As the plaintiff carried on his busine ss in the name of the said firm, which fact was known to the defendants and not denied also, the issuance of the notice, in the name of the sole proprietorial f irm i.e the plaintiff was not fatal. Therefore, issuance of the notice under Se ction 80 CPC in the name of the firm, by the plaintiff was sufficient compliance of the statutory requirement. In view of the above discussion, we find no diffi culty in holding that the learned trial Judge committed error by deciding that t he suit, having been filed by the plaintiff in his name, was not maintainable an d that the same was hit by Section 80 CPC. In our considered opinion the Issue N os. 1 and 2 should have been decided in favour of the plaintiff and accordingly we reverse the said decisions of the learned trial Judge. 14. Taking up the question of limitation, it is found, from the plea dings of the plaintiff, that the suit was filed claiming payment of price of goo ds supplied in the month of June (i.e. on 07.06.2001), on 13.07.2001 and lastly on 28.03.2004. The date of filing of the suit is 30.06.2004. According to the pl aintiff, cause of action arose on 07.06.2001, 13.07.2001, August 2001, September 2001, April 2002, on 08.05.2002, 31.06.2002, 12.01.2004, 13.01.2004 and on such other subsequent dates. Record does not reveal that there was any fixed period of credit. Therefore, the claim being for the price of the goods sold and suppli ed, under the provision of Article 14 of the Limitation Act,1963, the plaintiff’ s right to sue accrued from the date of delivery of goods and the period of limi tation, prescribed by Article 14 aforesaid, is 3(three) years from the date of d elivery of the goods. According to the plaintiff, he supplied goods every month and cause of action arose on 07.06.2001, 13.07.2001 and such other subsequent da tes. Therefore, the suit, having been filed on 30.06.2004 i.e three years after 07.06.2001, may appear to have been brought after the expiry of the period of li mitation prescribed by the law. The learned trial Judge, in deciding this issue, came to contradictory findings. At one stage, the learned trial Judge held that the suit was barred by law of limitation in respect of the claim for the month of June 2001 and not barred in respect of the claims for the months of July 200 1 to May 2002. But the learned trial Judge committed error, by again deciding th at the suit was barred by limitation in respect of the unpaid bills relating to July 2001, August 2001, April 2002 and May 2002. Apparently, the claims for the months of July,2001 to May,2002 were not barred. Therefore, the question is whet her the claim for the months of June,2001 was hit by the law of Limitation. 15. A Seven Judges Bench of Supreme Court, in the case of S.S. Ratho re Vs. State of Madhya Pradesh, reported in (1989) 4 SCC 582, observed that ............. The 60 days’ time spent for complying with the requirement of not ice under Section 80 of the Code of Civil Procedure was available to the plainti ff in addition to the period of three years................. In view of the above law, laid down by the Supreme Court, in cas es, where 60 days notice under Section 80, CPC is to be issued, the said period of notice (i.e. 60 days) is required to be added in favour of the plaintiff, the reby extending the statutory period of limitation by 60 days. Therefore, in the present case as the statutory notice, under Section 80 CPC, was issued to the de fendants, the said period of 60 days should be added to the prescribed period of limitation i.e 3(three) years. In that view of the matter, the plaintiff’s clai m for the month of June,2001 will also be well within time. Therefore, we find that the plaintiff’s suit was not barred by the law of Limitation. 16. Issue No.4 relates to the plaintiff’s substantial claim. The pla intiff has claimed Rs.20,70,522/- towards the supply of goods in the months of J une 2001, July, 2001, August 2001, April 2002 and May 2002. The defendants, in t heir written statement, categorically stated that payment, for the period commen cing from the month of June 2001 and ending on August 2001 amounting to Rs.12,03 ,430/- was made by the defendant No.3 in favour of M/s Manoj Enterprises, Chatri bari, Guwahati, vide Government Draft No.007273, dated 04.12.2001, which was rec eived by one Shri S.R. Bagri on behalf of M/s Manoj Enterprises on 04.12.2001. T he defendants admitted that payment for the months of April,2002 and May,2002 wa s withheld due to involvement of the plaintiff in forgery at the time of obtaini ng the contract for supply of the goods. Admittedly, the payment for the months of September,2001 to March,2002, was also made in favour of M/s Manoj Enterprise s vide cheque No.37, dated 30.02.2002 and cheque No.59, dated 29.06.2002 and the said payment was received by one Sri Pralhad Singh Tanwar on behalf of M/s Mano j Enterprises. The plaintiff, who examined himself as PW.1, stated that except t he payment for the months of June,July,August,2001 and April,May,2002, all other payments were received by the plaintiff. Therefore, if the earlier payment, mad e vide cheques in the name of M/s Manoj Enterprises and received by Sri Pralhad Singh Tanwar, was credited in the account of M/s Manoj Enterprises, it is diffic ult to believe that the subsequent payment made vide Government Draft No.007273, dated 04.12.2001 and received by Sri S.R. Bagri, on behalf of M/s Manoj Enterpr ises, was not credited to the account of M/s Manoj Enterprises. Admittedly, the said Government draft, dated 04.12.2001, was issued in the name of M/s Manoj Ent erprises. The plaintiff, who denied the receipt of the said payment in the name of M/s Manoj Enterprises, failed to substantiate his plea by producing Bank docu ments, more particularly the statement of account standing in the name of M/s Ma noj Enterprises. In his cross-examination, the plaintiff stated that he did not have any account in the State Bank of India, Pan Bazar Branch, in the name of M/ s Manoj Enterprises. He denied the suggestion that the payment, received from th e defendants, were deposited by him in the account of M/s Manoj Enterprises with the State Bank of India. He further stated that he had no person named Mr. Bagr i in his Enterprise. 17. In order to establish that the plaintiff did not have any Bank a ccount in the State Bank of India in the name of M/s Manoj Enterprises and that the drafts alleged to be issued by the defendant No.3 were not credited in the account of M/s Manoj Enterprises, he could have obtained a certificate from the Bank authority regarding non-existence of any account in the name of M/s Manoj E nterprises with the State Bank of India, Pan Bazar Branch. The failure of the pl aintiff to discharge the said burden raises suspicion about the veracity of his statement that he did not have any account in the name of M/s Manoj Enterprises with the State Bank of India, Pan Bazar Branch and that the said Government Draf t was not credited into the account of M/s Manoj Enterprises. The fact that the plaintiff received the earlier payment made by Cheque No.37, dated 30.02.2002 an d Cheque No.59, dated 29.06.2002, in the name of M/s Manoj Enterprises, lends su fficient support in favour of the contention of the defendants-respondents that they had made payment for the month of June, July and August,2001 by Government Draft No.007273, dated 04.12.2001. Therefore, in our considered opinion, the lea rned trial Judge committed no error by holding that the plaintiff received payme nt for the months of June, July and August,2001. The plea of the defendants-respondents’ regarding withholding of an amount of Rs .8,60,977/- as the price of the goods supplied in the months of April,2002 and M ay,2002 is that the plaintiff committed forgery at the time of obtaining the con tract. Admittedly, on the allegation of committing forgery, a case under Section s 420/468/471 of the Indian Penal Code has been registered against the plaintiff and the same is pending. There can be no dispute that the allegation of involve ment in forgery, in obtaining the contract, and pendency of a criminal case cann ot be