Judgment

KOSHAL, J.:- This appeal by certificate granted by the High Court of Gujarat under sub-clause (a) of Clause (1) of Article 133 of the Constitution of India is directed against its judgment dated the 29/30th October, 1969, accepting a first appeal preferred by the defendant firm to it and dismissing the plaintiffs suit which had been decreed by the trial court.

2. The said suit was filed on the 24th November, 1958, in the court of the Civil Judge, Senior Division, Nadiad, by one K. M. Patel for the recovery of Rs. 38,718/- from the defendant firm on account of the price of 225 bags of tobacco weighing 268 Bengali maunds at the rate of Rs. 112/,- per such maund and interest thereon. The case set out in the plaint was that the tobacco in question had been purchased by the defendant firm on the 28th of November, 1955, that the same was despatched to the defendant firm by train from Anklav railway station on the 1st of December, 1955, on which date a bill for Rs. 30,523/- covering the price of the goods and incidental expenses was sent to the defendant firm, that the goods were received by the defendant firm who failed to pay for the same, that ultimately the defendant firm gave to the plaintiff four cheques each for Rs. 5,000/-, drawn on a banking company of Santa but that all of them were dishonoured on presentation. In addition to the said amount of Rs. 30,523/-, the plaintiff claimed Rs. 8,195 on account of interest at the rate of 9 per cent per annum for the period preceding the suit. He further prayed for award of future interest and costs.

3. The defendant firm denied the plaintiffs claim in toto. It averred in the written statement that no goods had been received by it from the plaintiff and that it had given no cheques to him. According to the defendant firm the goods in question had been purchased by it from a firm carrying on business in the name and style of R. K. Patel at Jabalpur which had told the defendant firm that the goods would be sent to it by the plaintiff. In relation to the four cheques the defendant firm stated that on the 29th November, 1957, it had entered into a transaction for the purchase of 900 bags of tobacco from firm R. K. Patel, that them goods had also to be supplied from the plaintiffs warehouse and that it was at the instance of one Chhotabhai belonging to firm R. K. Patel that the four cheques were issued by the defendant firm in the name of the plaintiff and given to Chhotabhai, although the agreement for the purchase of 900 bags of tabacco was ultimately cancelled.

4. On the pleadings of the parties the main question which arose for determination was whether a privity of contract existed between them in relation to the sale and purchase of the goods in dispute in regard to which no document was admittedly executed.

5. At the trial the plaintiff examined only one witness besides himself. He deposed that the transaction was entered into at his business premises in Joshi Kuva by Khudabux, a Munim of the defendant firm, with himself in the presence of Indravadan Muljibhai, P. W. 2 who supported that stand. The plaintiff also banked on document showing that he had obtained permission of the Central Excise authorities for the transfer of 225 bags of tabacco from his godown to the defendant firm at Mahiyar where the defendant firm carried on its business, that the goods were actually received by the defendant firm on the 17th of December, 1955, and that they were stored by the defendant firm in its warehouse. The plaintiff produced his cash book which contained an entry (Exhibit 54) indicating that an amount of Rs. 30,523/- was debited on the 1st December, 1955, to the account of the defendant firm on account of the price of 225 bags of tobacco at the rate of Rs. 112/- per Bengali maund and incidental expenses. The ledger entry (Exhibit 55) conforms to the cash book entry.

On the other hand, Abdul Halim Haji Rahimbux, one of the partners of the defendant firm appeared as its sole witness who de