1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 992 OF 2006 WITH CIVIL APPLICATION NO. 11395 OF 2006 Rajendra Kulkarni, Age Major, Occu. Business, R/o. "Madhubal", Nageshwarwadi, Aurangabad. ....Appellant. Versus M/s. Tajir, Tilak Path, Aurangabad, through its Partner, Shri. Parves Hussain s/o. Shabbar Hussain Yeolawala. ....Respondent. Shri. S.V. Adwant, Advocate for the appellant. CORAM : K.U. CHANDIWAL J. DATE : 7th May, 2010 ORAL ORDER : 1. Heard Mr. Adwant extensively. He chased his points, taking recourse to sections, 55, 73 of the Contract Act, Order 30, Rule 1 of C.P.C. also Order 7, Rule 11 thereof. He criticized the judgment on the factum of award of interest. 2. A suit for recovery against the defendant 2 resulted in decree by the learned Court of first instance with future interest at the rate of 18% per annum, challenged the same before the First Appellate Court by the defendant, resulted in reducing the inter-se interest to 6%, however the post decreetal interest remained unaltered. The findings are questioned by the unsuccessful defendant in the second appeal. 3. As stated earlier painstaking submission to highlight the points actuating in terms of section 55, 73 of Contract Act were tried to be pursued. At this stage itself, one needs to be reminded, the present controversy between the plaintiff and defendant revolved to simple sale of goods and receiving a cheque in discharge of the liabilities. It was also added with a rider, a vehicle belonging to the defendant was to be sold through the process by the plaintiff. The plaintiff accounted the same while adjusting and sought residue against the defendant with interest at either 24 % or 18%. 4. The Courts found the defendant had wavering stand. All throughout in the written statement, he says in 3 para 4 (i-b) that the defendant had issued a blank cheque to the plaintiff with understanding that defendant will give his car to the plaintiff against the payment of presentation of bills thereof, pursuant to which the plaintiff will return the said blank cheque to the defendant. The defendant in para 4 (i-c) translates, the plaintiff took the car from the defendant and behind his back sold/alienated it at a throw away price, without consulting the defendant or even informing him about the bills due from him. It was a minimum expectation, the defendant to keep himself in tune with the pleading. In the evidence, defendant says, the cheque was given to the plaintiff as a commission to meet the sale of the vehicle. This new theory as propagated by the defendant could not be digested. 5. The fact remains, it has been objected by Mr. Adwant that there were no bills or accounts produced by the plaintiff to establish dues. It could not rationally be done, as in the cross-examination, the plaintiff has accepted that the cheque was issued by the defendant on "settling the accounts". The term "settling the accounts", in unmistakable direction 4 illustrate the accounts were stated and settled. Having reached to this situation, it was not imperative for the plaintiff to have brought his vouchers, bills or the account extract. 6. The moot question that has been projected in the second appeal is, initially the suit was filed in the name of M/s. Tajir, showing it as a partnership firm. By virtue of an application, amendment was carried in terms of direction below Exh. 17 dated 7.4.1997, the status of the firm from 'M/s. Tajir, a partnership firm' is changed/amended to the firm namely 'M/s. Tajir, a propriety concern of Shri. Nuruddin Parvez Yeolawala'. This, according to Mr. Adwant, is again devoid of particulars or rather a cause of action to M/s. Tajir against the defendant. With these, to stress his point, the learned counsel took recourse to the judgment of this Court in the matter of Municipal Council, Tiroda vs. K. Ravindra and Company and others reported in 2003 (2) MH.L.J. 987, wherein the learned Single Judge, having realized that the suit was filed by the plaintiffs in mis-description of the name, the learned Single Judge allowed amendment to be carried, by partly allowing the revision. The learned Single 5 Judge held the rectification in the name of plaintiff is needed and the Trial Court was directed to allow the plaintiff to make the correction in his name in the plaint. 7. This opportunity which was available to be agitated by the defendant is indeed not exhausted at the two levels of the proceedings. The objection to which Mr. Adwant pointed as their defence, indeed is a general objection in the written statement in paragraph Nos. 1 and 2, which reads as under :- "1. At the outset, it is submitted that the suit filed by the plaintiff suffers from legal infirmities and entails rejection. 2. The suit filed against the defendant in the present form is not tenable and maintainable and deserves rejection in limine." However, while dealing with plaint paragraph No. 1, the defendant in para 4 (i) asserts as under :- "(i) The contents of para 1 of the plaint are to be proved by the plaintiff with strict proof and until then they are to be treated as traversed." 6 8. The defendant by the pleadings and even by the evidence, having accepted the proprietary concern of the firm M/s. Tajir, the mis-description having not been accelerated at two stages, need not be subjected to be questioned in the second appeal, branding it as a lack of cause of action. This ground, therefore, is held against the defendant. 9. The contentions about damages referred in section 73 of the Contract Act, could not be available to be pointed, as the case, as indicated above, reflects to the sale of goods and recovery thereof. 10. The learned counsel for the defendant submits that there was no pleadings for claim of interest either at 18% or post interest awarded by the Court, however, I find, in the affidavit of evidence in the last paragraph, the plaintiff indeed has referred about his entitlement to claim interest. The other contention raised by the defendant was, the plaintiff sould have issued a notice of claim and there was no notice. However, the record shows, at Exh. 34 there is a notice addressed to the defendant by the plaintiff 7 through his advocate. I do find, there is acknowledgment of this notice, having not so annexed with the evidence. 11. Taking overall survey of the matter, in terms of section 34 of the Code of Civil Procedure, section 61 of the Sale of Goods Act, it is clear, there exists a right in favour of creditor like plaintiff to receive the balance with interest. The proviso to section 34 (1) spells out :- "Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation, to commercial transactions." However, in spite of this situation, the award of interest, post decree being at the rate of 18% per annum by both the learned Judges, warrants interference. The consequent result is, the second appeal lacks merit. It is dismissed. No costs. 8 However, the award of interest at 18% per annum on the principal amount of Rs. 28,005/- is reduced to Rs. 6% per annum from the date of suit till realization. The suit is decreed for Rs. 28,005/- only. Civil Application disposed of. [ K.U. CHANDIWAL J.] ssc/sa992.06