Judgment

MUDHOLKAR, J. : This is an appeal by a certificate granted by the High Court of Andhra Pradesh under Art. 133 (1) (a) of the Constitution.

2. The relevant facts are these :

3. The plaintiff-respondent Ramaswamy and Co. who carry on business in tobacco at Guntur instituted a suit against the appellant-firm which also carries on similar business at that place and its alleged partners Kurapati Venkata Mallayya and Mittapalli Abbayya, for the recovery of the price of 112 bales of DB tobacco strips (hereafter referred to as DB strips), sold to them on June 5, 1946, amounting to Rs. 14,095/- and interest thereon from the date of purchase to the date suit. In addition, the respondent firm claimed interest from the date of suit to the date of realization. It is the respondent firm s case that the tobacco weighed 28,196 pounds and that the appellant firm purchased it by agreeing to pay its price at 8 annas per pound. Further according to the respondent-firm the appellant firm agreed to pay interest on the amount at 9 per cent per annum. The appellant-firm denied having purchased 112 bales of tobacco from the respondent-firm and denied also having agreed to pay its price at 8 annas per pound or at any other rate. They also denied the existence of any agreement to pay any interest.

4. According to the appellant-firm in May, 1946 it secured a contract to supply to the Russian Government 3,000 bales of inferior tobacco at the rate of 8 annas per pound. One Kottamasu Venkateswarlu (who was distantly related to the partners of the appellant firm) was the managing partner of the respondent-firm. This firm had some inferior tobacco and Venkateswarlu pressed the appellant-firm to take over 112 bales of that tobacco from it and tender them towards the contract with the Russian Government saying that the appellant-firm may deduct one anna per pound from the price received for the Russian Government towards their expenses and commission. The appellant-firm had reluctantly agreed to this request and despatched 97 out of the 122 bales to Kakinada after getting Agmark certificate with respect to them, with the assistance of Venkateswarlu. The representative of the Russian Government, however, rejected the goods on the ground that they were of inferior quality. Five bales out of these 97 bales were rejected by the Agmark authorities after re-inspection of the goods at Kakinada. Those bales were returned to Guntur along with other rejected bales which belonged to the appellant-firm but they were consumed in an accidental fire in the godown of the appellant-firm. The remaining 92 bales are said to be still lying with the shipping agent at Kakinada and that as the tobacco is of very poor quality no purchaser had yet been found for it. Fifteen bales out of the 112 bales which had not been sent to Kakinada got damaged and had to be re-baled. As a result of the rebaling they were reduced to ten bales and these are still lying with the appellant-firm, which the appellant firm was willing to return to the respondent-firm on its paying the godown charges.

5. Thus, the main defence of the appellant-firm is that it never purchased 112 bales of tobacco from the respondent-firm and, therefore, the respondent-firm could not sue it for the price of those bales. It may be mentioned that before the institution of the suit a Receiver had been appointed in another suit for realisation of the debts due to the respondent-firm. The court before which the suit was pending had made an order on June 22, 1949 permitting the Receiver to collect the debts due to the respondent- firm. In pursuance of this order the Receiver Suryanarayana instituted the suit out of which this appeal arises, describing himself thus in the plaint : "I, Suryanarayana Garu, Receiver appointed in O. S. 275 of 1948 on the file of the District Munsif s Court, Guntur." The appellant-firm contended that the suit was untenable because a Receiver has no right to institute a suit in his own name and furth