Counter-claim not mentioned in the written statement.

COMMON JUDGMENT A.S.VENKATACHALAMOORTHY, J.

The appellant viz., Southern Ancillaries Private Limited, represented by its Managing Director, filed a suit in O.S. No.47 of 1983 before the learned Subordinate Judge, Tiruvallore, against the respondent herein, praying the Court to pass a decree for a sum of Rs.1,45,790.99 with interest on Rs.1,28,450.24 at 6% per annum from the date of suit till realisation.

The respondent-defendant in A.S. No.873 of 1988 made a counter claim contending that the plaintiff is liable to pay to it a total sum of Rs.3,61,329.35 along with interest at 19% p.a. from 3.4.1981 for the delay in making payments.

2. The learned Subordinate Judge, after trial, held that,

{a} the defendant is liable to pay a sum of Rs.1,45,790.99 and interest at 6% p.a. on Rs.1,28,450.24 from the date of suit till realisation;

{b} the plaintiff, out of the amounts due to the defendant viz., Rs.3,61,329.35, to deduct Rs.17,340/- and pay the balance; and

{c} on the principal sum of Rs.71,111.30, the plaintiff is liable to pay interest at the rate of 6% p.a.

3. The plaintiff, being aggrieved by the judgment and decree of the learned Subordinate Judge, Tiruvallore, has filed Appeal Suit No.873 of 1988.

The defendant has filed A.S. No.466 of 1989, claiming enhanced rate of interest as against the rate awarded viz., 6% p.a. by the trial court.

4. In view of the fact that the appellant in A.S. No.873 of 1988 has made only legal submissions, it is unnecessary to set out in detail the basis of the claims made and suffice to narrate the nature of the claims broadly. The plaintiff would claim that the defendant is liable to pay the sums as mentioned in the plaint, being arrears due to it in respect of various machining jobs done for over several years.

On the other hand, the defendant would contend that,

(i) 1104 Nos. of bearing shell castings have been spoiled by the plaintiff due to wrong machining, resulting in a loss of Rs.1,98,720/-;

(ii) there is failure on the part of the plaintiff to return 672 Nos. of bearing shell castings which were sent by the defendant for machining by the plaintiff; and

(iii) the plaintiff has failed to return other miscellaneous items entrusted to them on various dates for machining. Thus, the defendant would claim that, in all, the plaintiff is liable to pay the defendant a total sum of Rs.3,61,329.35 with further interest at 19% per annum from the date of counter claim till realisation.

5. For the purpose of considering the various submissions made by the appellant-plaintiff and for better appreciation, it is necessary to set out certain factual details as to what happened during pendency of the suit.

The learned Subordinate Judge framed issues on 9.9.1983. After a number of adjournments, the trial commenced on 7.12.1984 when PW-1 was examined in chief in part. Further examination-in-chief of PW-1 was done on 06.03.1985, 14.3.1985 and 29.3.1985. On 1.7.1985 and again on 2.7.1985 PW-1 was cross examined and documents viz., Exs.B-1 to B-7 were marked. On 10.7.1985, 1st witness on behalf of the defendant was examined-in-chief. The request for adjournment by the plaintiff's counsel to cross examine the defendant's witness was opposed by the defendant's counsel and the court also declined to adjourn it. An application was filed by the plaintiff, seeking permission to recall and cross examine the witness for the defendant. The same was allowed and the defendant's witness was cross examined on 30.7.1985 and 31.7.1985. On 6.8.1985. the defendant examined its 2nd witness. On 7.8.1985, the defendant examined its 3rd witness and documents were marked. On 8.8.1985, D.W.3 was cross examined and the matter was adjourned to 19.8.l985 for arguments. Thereafter, the case was adjourned twice and on 26.8.1985, the defendant filed I.A. No.464 of 1985, praying the Court to re-open the suit for the purpose of payment of Court Fee on the counter claim made by it (defendant). The trial court dismissed the same by its order