HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO APPEAL SUIT No.3491 OF 1992 JUDGMENT: The appeal is filed by appellant/defendant against the judgment and decree in O.S.No.96 of 1988 on the file of the II Additional District Judge, East Godavari, Rajahmundry. 2. The suit was one filed for recovery of a sum of Rs.56,246.35 paise, due under the Katha. 3. The allegations in the plaint go to show that the plaintiff is a wholesale timber merchant and also a commission agent. The defendant is a timber merchant and contractor of the Orissa Forest Corporation. The defendant entered into an agreement with the plaintiff on 01.02.1983 to send the timber purchased by him from Orissa Forest Corporation and the plaintiff has to advance all the monies for the purchase and transport. The plaintiff is entitled for commission of 4 ½ % and also interest at 18% per annum and as per the accounts, the defendant has to pay the above said amount by 01.09.1983. In spite of repeated demands, the defendant did not pay the money. Hence the suit. 4. The defendant filed a written statement contending that he never entered into an agreement with the plaintiff and it is a fabricated one. It was pleaded that the plaintiff is maternal grandson of one M.Ramatharakam and there is an oral agreement between the defendant and the said Ramatharakam in the year, 1982. The defendant has to send all his timber and commission of 4% has to be paid to Ramatharakam. Accordingly, till the end of August, 1983 the timber was sent. During the year, 1982 the entire stock was sold. He did not render proper account. There is a difference in the account with regard to the supply of the timber in the plaintiff’s accounts. The suit is, therefore, liable to be dismissed. 5. On the basis of the above pleadings, the following issues have been framed by the trial Court, for trial: 1) Whether the agreement dated 01.02.1983 is true and it is enforceable against the defendant? 2) Whether there is relationship of an agent and principal between the plaintiff and the defendant? If so, whether the total poles supplied by the defendant as per account is true? 3) Whether the amount realized out of the sales of timber as shown in the account is true? 4) Whether the defendant opened katha with the plaintiff and supplied timber to the plaintiffs concern? 5) Whether the suit katha is true? 6) Whether there is any agreement to pay interest? 7) To what relief? Subsequently, the following additional issue was framed: Whether the plaintiff is a registered firm and whether the suit is maintainable? 6. On behalf of the Plaintiff, PWs.1 to 4 were examined and marked Exs.A.1 to A.34. On behalf of the defendant, DW.1 was examined and marked Ex.B.1 and B.2 After considering the evidence on record, the learned II Additional District Judge decreed the suit of the plaintiff. Aggrieved by the same, the present appeal is filed. 7. The points that arise for consideration are: 1) Whether there is agreement between the plaintiff and the defendant to supply the timber? 2) Whether the defendant is not liable for the suit amount? 8. POINTS: In support of the claim of the plaintiff, he was examined as PW.1 and his grandfather Ramatharakam, with whom the defendant is said to be having contract, was examined as PW.2. Their evidence clearly goes to show that there was a business transaction between the plaintiff and the defendant and PW.2 was attending to the business of the plaintiff’s firm on behalf of PW.1. To prove the agreement, PW.3 was examined. He is also said to be asserted with the carrying of the timber. The evidence of PW.4 also shows as to how the timber was transported. From the evidence of the defendant, it is quite clear that he was a contractor of Forest timber in Orissa and he was doing business with PW.2. But, he denies Ex.A.1 agreement. He claims to have given some signed blank papers to the employee of PW.2 and Ex.A.1 might have been created by him. This evidence of the defendant is not believable since when he has got confidence in PW.2 and doing business, there is no need for PW.2 to fabricate any agreement under Ex.A.1 in favour of the plaintiff. Further-more, though the defendant has taken a plea that there were some disputes with PW.2, he never issued any notice nor asked for accounts. Evidently, the business was being done by supply of the money in advance by PW.1 or PW.2. There is also no motive for PW.2 for fabricating the agreement Ex.A.1. The account books are maintained by the plaintiff in regular course of business and they are proved by the evidence of PW.1 and Pw.2. Ex.A.3 is the ledger account showing the amount due by 02.02.1983. A registered notice under Ex.A.2 was given to the defendant. But, there was no reply. Merely because there is a variation of mentioning of the lakhs in one and all entries, it does not mean that the entire accounts are fabricated. In fact, the evidence on record clearly goes to show as to how the transport charges and labour charges were paid by PW.2 and the evidence of PWs.3 and 4 also establishes the same. The plaintiff has filed Exs.A.20 to A.25 relating to the business transactions and all these documents clearly go to show that the claim of the plaintiff is true. 9. In fact, the defendant himself was said to be maintaining some accounts but the defendant has not filed any accounts to show that the accounts maintained by the plaintiff are incorrect. In cross- examination, he specifically admitted that he has got record to show his business dealings. Non-production of the records, therefore, is clearly a circumstance against the defendant. If really there was no agreement between the plaintiff and the defendant, there is no reason as to why all these transactions should be reflected in the accounts of the plaintiff. Evidently, there are no other accounts maintained by PW.2, in which the defendant has signed. Therefore, from the above circumstances and the evidence of PWs.1 to 4, it is quite clear that the defendant has entered into an agreement under Ex.A.1 and the suit amount was due. A minor discrepancy in one and all entries will not show that the claim of the plaintiff is not true. The appellant has not produced the best evidence, which are the accounts maintained by him. The denial of the agreement by the plaintiff itself shows that he is not speaking the truth. Therefore, in view of the above circumstances, the suit of the plaintiff has been rightly decreed. But, however, the learned Judge has decreed the suit of the plaintiff for future interest at 18% per annum from the date of suit till the date of realization. Evidently, there is no agreement to pay such huge interest. Keeping in view the provisions under Section 34 of the Civil Procedure Code and also the transaction being a commercial transaction, I feel the ends of justice would meet if interest at 12% per annum is granted from the date of suit till the date of realization on the suit amount. 10. With the above modification, the judgment and decree of the lower Court is confirmed. Accordingly, the Appeal Suit is allowed in part. Both parties shall bear their own costs. _______________________________ JUSTICE N.R.L. NAGESWARA RAO Date:28.10.2011 INL