( 1 ) THIS is an appeal filed by the original defendant under Section 96 of the Code of civil Procedure, against the money decree for an amount of Rs. 39,533. 60 p. with running interest at the rate of 12 per cent per annum and also the order regarding cost by the learned Judge of the City Civil court at Ahmedabad in Civil Suit No. 3372/76. The facts, in brief, which have given rise to the appeal, are as under:

( 2 ) THE respondent- Arvind H. Pathak, sole proprietor of M/s. Vinus Containers at Godhra, filed Civil Suit No. 3372/76 against the present appellant Gujarat Agro oil Enterprises Ltd. for recovering an amount of Rs. 29,386. 25 p. for the price of the goods sold and delivered to the defendant, with interest amounting to rs. 10,238. 20 p. on such principal amount and Rs. 100/- by way of notice charges. According to the plaintiff, who was manufacturing Tin containers of various types and sizes at Godhra agreed to supply tin containers as per the defendants purchase orders No. 21299, 21300 and 21301. According to him he had supplied different quantities of tin containers on different dates in the months of June, July, august, September and October 1973, but the defendants have made only part payment of Rs. 1,09,500/- against the price of goods valued at Rs. l,38,886. 35 p. Hence the plaintiff had to serve the defendant a notice of demand. As the defendant raised certain contentions regarding duplication of bills and over charging certain items, the plaintiff filed the suit for recovering the aforesaid amount and also interest at the rate of 12 % from the date of respective bills.

( 3 ) IN his affidavit for leave to defend Exh. 11 which is later on treated as the written statement at the request of the defendant, it was contended on behalf of the defendant that the plaintiff had supplied only 25,166 tins towards four purchase orders for 1,04,000 Tin containers and so, the defendant had to pay a higher price of rs. 21,978. 35 p. in order to purchase the remaining containers from the market. It was further contended that the defendant had received only 1200 Tins valued at Rs. 6420/- on 2-8-73 but he was claiming the said amount twice over on the basis of two different bills dated 2nd August 1973, bearing two different numbers-one bearing No. NAV/332/10 and another bearing No. NAV/b/2. Thus, according to the defendant, the plaintiff was not entitled to demand the amount of Rs. 6420/ -. Further, it is contended that the plaintiff had charged Rs. 6. 25 per Tin in respect of goods sent to Barodaon 10-10-73,16-10-73 and 30th September 1973 instead of the contractual rate of Rs. 5. 39 p. per Tin even though necessary corrections were made in the original bills. The defendant also challenged the inclusion of Octroi charges and claimed damages to the tune of rs. 90. 95 p. for delivery of 17 damages tins at Piplod. The defendant also submitted the statement regarding various items on which he was entitled to deduction of Rs. 22,069. 30 p. The defendant also submitted a Pursis Exh. 27 stating that he was preferring a counter claim/set off for an amount of Rs. 1866. 67 which is the amount of over-payment made by him to the appellant. The defendant also raised other contentions regarding non-joinder of the state of Gujarat as a necessary party and regarding rate of interest claimed by the plaintiff.

( 4 ) BY its reply Exh. 90 to the defendants counter claim, the plaintiff contended that the counter claim was barred by limitation, and that the defendant was also liable to pay interest as he has not made the payment of bills within 7 days from the date of the delivery, as stipulated in the bills furnished by the plaintiff. He further contended that due to heavy rains disrupting the road transport in backward area in which the Factory was situated and due to the non-availability of labourers during heavy rains he was unable to supply the quantity required by the defendant.

( 5 ) THE learned Judge of the City Civil court raised s