JUDGMENT :

1. Being aggrieved and dissatisfied with the judgment and decree dated 30.10.1991 passed by Civil Judge, Senior Division, Navsari in Special Civil Suit No.53 of 1985 whereby the Suit of the respondent no.1 herein against the appellant, who is defendant no.2 and against the respondent no.2 herein i.e. defendant no.1, have been passed directing them to pay a sum of Rs.6,44,496/- with interest at the rate of 18.5.% from the date of the suit till realisation and costs of the suit.

2. Initially the appeal was filed by the appellant herein who is original defendant no.2 against the respondent no.1­original plaintiff and respondent no.2-original defendant no.1, however, during the pendency of the appeal, respondent no.2-original defendant no.1 has been deleted as party and, therefore, now the parties in the appeal is original defendant no.2 as appellant and respondent no.1 is the original plaintiff. For brevity and convenience the parties are referred to as the defendant no.2 and plaintiff respectively.

3. The brief facts of the case is that the plaintiff filed suit against both the defendants for recovery of amount of Rs.6,44,496/- together with interest at the rate of 18.5% p.a. from the date of the suit till realisation and costs of the suit for the cold steel strips, which was sent through the defendant no.2 to defendant no.1 with instruction to the defendant no.2 to deliver the goods after retirement of the documents on payment of bill. The bill was forwarded by the plaintiff through their bankers. The amount was to be paid by defendant no.1. That in violation of these express instructions, the defendant no.2 has delivered 8 consignments to the defendant no.1 without collecting the relative Goods Consignment Notes (Lorry Receipt), duly retired by the defendant no.1 who has taken the delivery of the same but failed to pay the price thereof to the plaintiff. The suit has been resisted by both the defendants initially but during the trial the defendant no.1 did not appeared and produced any evidence whereas the plaintiff and defendant no.2 has produced oral and documentary evidence. On the basis of the evidence produced before the trial Court and after hearing both the sides and considering the evidence on record, trial Court has passed the judgment and decree in favour of the plaintiff and against both the defendants.

4. The learned trial Court has framed the following issues:

1. “Whether the plaintiff proves that as per the order of the Deft. No.1 No. R.M.L. 26/77 dated 9/6/77 the goods worth Rs.4,49,821/- as described in para (1) of the plaint were supplied to the Deft. No.1?

2. Whether the plff. Proves that the said goods were supplied to the Deft. No.1 through its approved transport agent- Deft. No.2?

3. Whether the Plff. Proves that the Deft. No.1 has to present the transport receipts for taking delivery of the materials from the Deft. No.2?

4. Whether the plff. Proves that Deft. Acted contrary to and inconsistent with the terms and the conditions of the contract as alleged in para (3) of the plaint?

5. Whether the plff. Proves that Rs.4,49,821/- are found due as principal amount?

6. Whether the plff. Is entitled to any interest/ If yes at what rate?

7. Whether the plff. Is entitled to notice charges?

8. Whether the plff. Is entitled to recover in all the sum of Rs.6,44,497/­? If yes, then from both or any of the Defts.?

9. Whether the suit is bad on account of misjoinder of parties?

10. Whether this Court has jurisdiction to hear and decide this suit?

11. Whether the suit is filed within the prescribed period of limitation?

12. Whether the Deft. No.1 proves that there was no previty of contract between himself and plff.?

13. Whether the Deft. No.1 proves that the goods sent to him were defective and were not in accordance with the contract?

14. Whether the Deft. No. 1 proves that present dispute was settled with the plff. On date 11/6/85 and in full settlement of sum of Rs.50,000/- were paid to the plff. On date 19/6/85?

14A. Whethe