Judgment

HEGDE, J.: This is an appeal by certificate under Art. 133 (1) (a) of the Constitution. The appellant is the plaintiff in the suit. In the suit he claimed a sum of Rs. 30,699-1-3 against both the defendants. The suit was decree by the trial Court against the defendants in a sum of Rupees 22,634,4-0 together with costs and interest from the date of the decree. The State of Madhya Pradesh, the 1st defendant in the suit appealed against the decree. The second defendant did not appeal against the decree. The plaintiff filed cross-objection claiming interest on the principal amount claimed from the date of the suit till decree. The High Court allowed the appeal of the State and set aside the decree against it; but it failed to pass any order on the cross-objection. In this appeal the appellant seeks not only to get restored the trial Court s decree against the State of Madhya Pradesh, he also wants that the relief claimed by him in his cross-objection before the High Court should be granted to him.

2. The facts of the case lie within narrow limits. One Hetampal Singh, father of defendant 2, was a licence holder for Gird district in the then State of Gwalior for distribution of grain. He had entered into an agreement with the appellant-plaintiff on October 14, 1942 (Ex. I) whereunder he appointed the appellant as his commission agent. English translation of the said agreement reads thus:

"H.P.S. Jadhav Thakur Sahab. Naya Bazar Lakshkar, Gwalior.

I Hetampalsingh Jadhav, son of Bhagwansingh Jadhav, caste Thakur, am a resident of Naya Bazar, Lashkar.

I have taken contract for supplying grain seed in District Gird for which I need money for bringing every kind of grain from different places. Therefore, I appoint Ramprasad, son of Prabhudayal, caste Mathur Vaishya, resident of Naya Bazar, Lashkar, as my adhatia (commission agent) and settle the following terms:-

(1) I shall pay interest at the rate of Re. 1 per cent on the amount which will be invested by the Seth Sahab for this purpose.

(2) I shall pay commission at the rate of Re. 1-8-0 per cent on the goods which will be brought by the Seth Sahab or his man from outside and I shall pay commission at the rate of Re. 1 per cent on the goods which will be brought by me from outside and for which the Seth Sahab will have only to get released the railway way-bill.

(3) I shall pay the whole expenses of journey, railway fare, allowance, etc. of the persons who will go out on behalf of the Seth Sahab for bringing the goods.

(4) The whole of the goods which will be received from outside, shall remain in possession of the Seth Sahab. The account thereof shall also remain with him. The Seth Sahab will have authority to supply only so much goods as I would permit him to supply, i.e., he cannot supply goods to anybody of his own accord. The expenses which will be incurred in keeping account and other expenses of the shop shall be borne by the Seth Sahab. I shall pay only rent of the shop.

(5) I shall be responsible for any increase or decrease in the goods.

Sd./- Hetampal Singh Jadhav,

(In English)

14-10-42

3. In pursuance of the said agreement, the appellant purchased considerable stock of grain. He had in possession on January 29, 1943, 4,039 maunds 35 seers 4 chhatacks of gram. According to the appellant on that day Hetampal Singh owed him a sum of Rs. 19,228-9-6. The possession of that stock was taken over by the State Government on January 29 and 30th, 1949. The State Government paid the price of the said stock to Hetampal Singh. The appellant s case is that the Government is liable to reimburse him the money due to him from Hetampal Singh. Before the suit came to be filed Hetampal Singh had died and hence the 2nd defendant was impleaded as his legal representative.

4. The plaint filed by the plaintiff is a bald one. It did not set out the right under which the plaintiff was claiming any relief against the State. In the course of the trial, the plaintiff asserted that he was a pledgee of the go