ORDER

This civil first appeal under Section 96 CPC has been filed by the appellants-defendants (for short, ‘the defendants) against the judgment and decree dt.5.3.2003 passed by Additional District Judge No.6 Jaipur City, Jaipur in Civil Suit No.10/1996 titled as M/s. Moti Lal Shanker vs. M/s. Banshidhar Satya Narain and anr. whereby respondent-plaintiff’s (for short, ‘the plaintiff’) the plaintiff suit for recovery of money has been decreed and counter claim of the defendants has been dismissed.

2. Plaintiff instituted a suit against the defendants in the Court of District Judge, Jaipur City, Jaipur on 13.5.1996 for recovery of Rs.2,60,375.58 with interest @ 2.5% per mensem w.e.f. 13.3.1993. Plaintiff averred in suit that Manju S. Chitlangia is the sole proprietor of the plaintiff firm. Defendant No.1 is a partnership firm and defendant No.2 is a partner of the firm. On 13.3.93 twice the defendants borrowed sugar bags from the plaintiff under bill valued Rs.1,31,231.76/- and Rs.1,29,183.82/-. Goods along with bill were sent to the defendants but the defendants did not pay the amount. In lieu of total outstanding amount of Rs.2,60,375.58, the defendants gave cheque of Rs.50,000/- to the plaintiff, which on being presented in the bank, was returned with remark “insufficent fund”. Thereafter, the defendants again issued two cheques No.058070 dt. 16.4.93 and cheque No.058072 dt. 1.5.93 against outstanding amount of Rs.2,60,375.58. On being presented, the said cheques in the bank, they were again dishonoured. Registered notice dt.27.5.1993 was sent to the defendants but they did not make the payment.

3. The defendants filed their written statement and denied the averments made in the plaint. It was averred that the defendants had not borrowed any sugar bag from the plaintiff firm on 13.3.1993 they also denied to have received bills they also averred that two cheques as aforesaid, were given the plaintiff on account of necessity of funds shown by the plaintiff. Defendants further averred in the written statement that current open account was not settled after 1.4.92.

4. In the counter claim, the defendants averred that the plaintiff is required to owe a sum of Rs.1,93,000/- to the defendants, which were taken on 08.03.1993 due to necessity of funds. It was also averred that the suit filed by the plaintiff is barred by limitation.

5. The plaintiff filed rejoinder to the written statement filed by the defendants and denied any outstanding amount owed to the defendants.

6. The trial court framed the following issues:—

(I) Whether on 13.03.1993 the defendants borrowed sugar from the plaintiff under two bills valuing Rs.2,60,375.50 in aggregate and the plaintiff is entitled to recover this amount from the defendants?

(II) Whether on the due amount, the plaintiff is entitled to receive interest @ Rs.2.50% per mensen as per the market rate?

(III) Whether the defendants are entitled for randition of account from the plaintiff in pursuance of Schedule-A?

(IV) Whether suit is barred by limitation?

(V) Whether Satya Narain received a sum of Rs.1,93,000/- from the defendants in Cash and the defendants are entitled to adjustment of the same?

(V-A) whether Smt. Manji S. Chitlangia is the sole proprietor of the plaintiff firm?

(V-B) Whether the defendant is a partnership firm and the defendant No.2 is not its sole proprietor? If yes, what is its effect on suit?

(VI) Relief.

7. Plaintiff examined PW-1 Manju S. Chitlangia, PW-2 Girdhar Sharda, PW-3 Gajanand, PW-4 Vasudev, PW-5 Murari Lal Khandelwal, PW-6 Staya Narain Chitlangia to corroborate the averments made in the plaint and exhibited some documents. Defendants examined DW-1 Satya Narain Parwal, DW-2 Rajendra Modi, DW-3 Jugal Kishore Parwal and got exhibited some documents.

8. Trial court vide its judgment dt. 5.3.2003 decreed the suit of the plaintiff for Rs.2,60,375.58 with interest thereon Rs.1.5 per month w.e.f. 13.3.93 and dismissed the counter claim of the defendants. Hence, t