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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

SECOND APPEAL NO. 992 OF 2006

WITH

CIVIL APPLICATION NO. 11395 OF 2006

Rajendra Kulkarni,

Age Major, Occu. Business,

R/o. "Madhubal", Nageshwarwadi,

Aurangabad.

....Appellant.

Versus

M/s. Tajir, Tilak Path,

Aurangabad, through its

Partner, Shri. Parves Hussain

s/o. Shabbar Hussain Yeolawala.

....Respondent.

Shri. S.V. Adwant, Advocate for the appellant.

CORAM :

K.U. CHANDIWAL J.

DATE :

7th May, 2010

ORAL ORDER :

1.

Heard Mr. Adwant extensively. He chased his

points, taking recourse to sections, 55, 73 of the

Contract Act, Order 30, Rule 1 of C.P.C. also Order 7,

Rule 11 thereof. He criticized the judgment on the

factum of award of interest.

2.

A suit for recovery against the defendant

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resulted in decree by the learned Court of first

instance with future interest at the rate of 18% per

annum, challenged the same before the First Appellate

Court by the defendant, resulted in reducing the

inter-se interest to 6%, however the post decreetal

interest remained unaltered. The findings are

questioned by the unsuccessful defendant in the second

appeal.

3.

As stated earlier painstaking submission to

highlight the points actuating in terms of section 55,

73 of Contract Act were tried to be pursued. At this

stage itself, one needs to be reminded, the present

controversy between the plaintiff and defendant

revolved to simple sale of goods and receiving a

cheque in discharge of the liabilities. It was also

added with a rider, a vehicle belonging to the

defendant was to be sold through the process by the

plaintiff. The plaintiff accounted the same while

adjusting and sought residue against the defendant

with interest at either 24 % or 18%.

4.

The Courts found the defendant had wavering

stand. All throughout in the written statement, he

says in

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para 4 (i-b) that the defendant had issued a blank

cheque to the plaintiff with understanding that

defendant will give his car to the plaintiff against

the payment of presentation of bills thereof, pursuant

to which the plaintiff will return the said blank

cheque to the defendant. The defendant in para 4 (i-c)

translates, the plaintiff took the car from the

defendant and behind his back sold/alienated it at a

throw away price, without consulting the defendant or

even informing him about the bills due from him.

It was a minimum expectation, the defendant to

keep himself in tune with the pleading. In the

evidence, defendant says, the cheque was given to the

plaintiff as a commission to meet the sale of the

vehicle. This new theory as propagated by the

defendant could not be digested.

5.

The fact remains, it has been objected by Mr.

Adwant that there were no bills or accounts produced

by the plaintiff to establish dues. It could not

rationally be done, as in the cross-examination, the

plaintiff has accepted that the cheque was issued by

the defendant on "settling the accounts". The term

"settling the accounts", in unmistakable direction

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illustrate the accounts were stated and settled.

Having reached to this situation, it was not

imperative for the plaintiff to have brought his

vouchers, bills or the account extract.

6.

The moot question that has been projected in the

second appeal is, initially the suit was filed in the

name of M/s. Tajir, showing it as a partnership firm.

By virtue of an application, amendment was carried in

terms of direction below Exh. 17 dated 7.4.1997, the

status of the firm from 'M/s. Tajir, a partnership

firm' is changed/amended to the firm namely 'M/s.

Tajir, a propriety concern of Shri. Nuruddin Parvez

Yeolawala'. This, according to Mr. Adwant, is again

devoid of particulars or rath