ioc Yarn Agency Vs. Samsons Processing Industries - Court Judgment

Amitava Lala, J.

1. The Court: This is a suit for price of goods sold and delivered. So far as the principal sum is concerned, there is no dispute. The dispute in the suit is in respect of rate of interest. This question was thoroughly considered on the earlier occasion and defendant was directed to pay the principal sum of Rs. 3,67,740/- to the plaintiff by an order dated 3rd March, 1999. Such order was duly complied with. The following issues are framed hereunder:

'(1) Whether this Court has pecuniary jurisdiction to entertain the suit as it is framed?

(2) Whether there is delay in payment and if so, whether the defendant is entitled for interest and what should be the rate of such interest in respect of paid and/or unpaid bills?

(3) To what relief, if any, is the plaintiff entitled?'

2. This Court has gone through the plaint, written statement, documents disclosed hereunder specially exhibited. Therefore, the documentary and oral examinations were considered and arguments which were put forth by the learned Counsels appearing for both the parties were heard.

3. Prima facie two aspects are apparent before taking into account the finality of the case. Firstly, tendering the amount of principal sum of Rs. 3,67,740/- during the pendency of the suit which clearly gives indication of dues from the defendant to the plaintiff. Secondly, in a commercial transaction when there is a due, the same cannot be receivable without any interest. Therefore, at the threshold, Court has no other alternative but to proceed with the discussion keeping the case of the plaintiff little high over the defendant.

4. However, it has to be recorded hereunder that although an issue in respect of jurisdiction has been framed under issue No. 1 but no such argument was advanced by the defendant to that extent as a result whereof the Court has no other alternative but to accept the submission of the merit of the defendant to the jurisdiction. Accordingly, I have to hold in favour of the plaintiff so far as the issue No. 1 is concerned due to submission to the jurisdiction by the defendant expressly or impliedly.

5. Two witnesses were examined on behalf of the plaintiff and one witness was examined on behalf of the defendant. The witnesses on behalf of the plaintiff are one Sri Trilok Khemka and another Sri Nirmal Agarwal. On the other hand, the sole witness on the part of the defendant is one Sri Prabodh Mondal.

6. Mr. Ajoy Krishna Chatterjee, learned Counsel appearing for he defendant was called on first for the purpose of making his argument as his witness was examined at last by following the practice of the Court hearing suits. In turn, Mr. Chatterjee, has drawn my attention to the statement of account annexed to the plaint to establish before this Court that principal sum having been paid there is no sum due and payable on account of interest. Secondly, the suit which was filed on 9th April, 1997 regarding the bills and debit notes for the period of 1993 which is clearly beyond the period of limitation. Therefore, the claim is time barred. Hence the plaintiff is not entitled to claim any sum under the Debit Note No. 23 dated 14th September, 1993 for a sum of Rs. 34,992.60 paise and dated 8th February, 1993 for a sum of Rs. 47,924.00 paise totalling of Rs. 82,916.60 paise. Leaving aside these two amounts under the same debit note as on 2nd April, 1996 a sum of Rs. 1,67,985.29 paise, as on 8th June, 1996 a sum of Rs. 2,77,716.14 paise and as on 8th June, 1996 a sum of Rs. 2,67,622.96 paise totalling to Rs. 7,13,324.39 paise is shown as due. Therefore, if such amount is deducted from the paid up amount and the self-same statement of account for a sum of Rs. 12,35,554.00 paise, it will appear that a sum of Rs. 5,22,229.70 paise is due and payable. If the payment of Rs. 3,67,740.00 paise as paid during the pendency of this suit by the defendant to the plaintiff is adjusted, a sum of Rs. 1,54,489.70 paise will become due and payable. If the Court proceeds on the basis of the demand notice being 2nd of July, 1996 being P.O. 28 find that the total claim as on that date is Rs. 11,63,980.99 paise. Hence, there is a difference of the balance amount of Rs. 71,573.01 paise. Exactly such sum is available as against interest upto 31 st March, 1997 in the statement of account of the plaintiff itself. If such amount is subtracted from Rs. 1,54,489.70 paise balance will be Rs. 82,916.69 paise leaving aside bona fide mistake in last figure 'O' or 'q' in the exact added figure of time barred amount of first two items of the debit note for the year 1993. Therefore, no such is due and payable.

7. Moreover, the sum which is claimed to be an admitted amount in the application under Chapter 13A of the original side rules for a sum of Rs. 3,67,740.00 paise is concerned, such amount was also tendered to the broker of the plaintiff as would be evident from paragraph 6 of the written statement. Such paragraph 6 of the written statement is as follows :

'With further reference to paragraph 7 of the plaint it is stated that altogether there were 11 bills due and payable. All the said 11 bills have duly been paid and duly received by the plaintiff in full and final settlement. The last cheque for Rs. 3,67,740.00 paise being No. 223127 dated October 24, 1996 had however, been refused.'

8. According to Mr. S. Tibrewal, learned Senior Counsel appearing for the plaintiff such statement is incorrect since they themselves disclosed such document as P.D. in the Judge's Brief of documents. Learned Counsel appearing for the defendant is also drawn my attention to Page 42 of the Judge's Brief of documents, wherefrom I find that the photo-copy of the cheque of such amount is marked as P.D. No. 29. According to him it has wrongly marked as P.D. (plaintiffs document). It is evident from the affidavit of documents filed by the defendant that the same is their disclosure. So it has to be marked as D.D. (defendant's document). I find there is a substance in such submission.

9. The learned Counsel appearing for the defendant has drawn my attention to the paragraph 4 of the plaint which is quoted hereunder:

'It was agreed upon by and between the parties that the defendant would make payment for the said goods to the plaintiff within 30 days from the respective dates of delivery thereof to the defendant and that in default thereof, the defendant would be liable to pay to the plaintiff interest on the outstanding amount at 24% p.a. from the respective due debits of payment of the bills till liquidation thereof by the defendant.'

10. The defendant has categorically denied such statement by saying that there was no agreement for making payment within any specific period nor there was any rate of interest agreed on account of any default. However, the learned Counsel, for the defendant stated that one Sri Kedarnath Bansal being Manager and Constituted Attorney of the plaintiff verified the plaint but he was not examined. One of its brokers i.e. Sri Trilok Khemka and another is Sri Nirmal Agarwal were examined. He also stated that there was no written agreement between the broker and the defendant so far as the delayed payment is concerned. Certain principles of law has to be discussed at first in coming to the conclusion. Accordingly, Mr. Chatterjee has drawn my attention to Section 61(2)(a) and Section 32 of the Sale of Goods Act, 1930. Section 61(2)(a) prescribes that in absence of the contract to the contrary, the Court may award interest at such rate as it thinks fit on the amount of the price from the date of tender of the goods or from the date on which the price was payable wherein Section 32 says that unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the sellers shall be ready and willing to give possession of the goods to the buyer in exchange of the price and the buyer shall be ready and willing to pay the price in exchange of possession of such goods. Therefore, when there is no agreement either payment will be made immediately or as per Section 61(2)(a) it may be guided by the Section 3 of the Interest Act. Section 3 of the Interest Act, 1978 prescribes that in any proceedings for the recovery of any debt or damages or in any proceedings in which a Claim for interest in respect of any debt or damages already paid, the Court may, if it thinks fit allow the interest to the person entitled to the debt or damages or to the person making such claim, as the case may be, at a rate not exceeding the current rate of interest. According 10 Mr. Chatterjee, the word 'debt' is equally applicable in case of money lent and advanced and price of goods sold and delivered both being commercial transactions. However, I can find from the Section 5 of the said Act that nothing of the Interest Act shall affect the provision of Section 34 of the Code of Civil Procedure, 1908 that so far as the decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition, to any interest adjudged on the principal sum for any period prior to institute of the suit with further interest at such rate not exceeding 6 per cent per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of the payment or to such earlier date, the Court thinks fit. A proviso has been incorporated in the Amendment Act, 1976 of the Code of Civil Procedure i.e. where the liability is arising out of commercial transaction, such rate of interest may exceed 6 per cent but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which monies are lent and advanced by nationalised Banks in relation to commercial transactions.

11. Therefore, before coming into the appropriate conclusion upon going through the discussions I have to hold that in case of decree for payment of interest the four principles are to be adopted;

(a) Decree for payment of agreed rate of interest; (b) Decree for such sum as the Court thinks fit as per Section 61(2)(a) of the Sale of Goods Act; (c) Decree as per Section 3 of the interest rate not exceeding the current rate of interest; (d)-Decree as per Section 34 of the Code of Civil Procedure for an amount not exceeding 6 per cent or as per proviso that at the rate at which monies are lent and advanced by nationalised banks in relation to commercial transactions.

12. Now the question before this Court is whether money was paid immediately on exchange of goods or within any prescribed period fixed thereunder or any sum is not due and payable at all.

13. According to Mr. Chatterjee, there was no agreement of payment of interest. The relevant questions of their witness Mr. Mondal has been referred hereunder being question Nos. 12,19, 34 to 36 of the Examination-in-Chief and question Nos. 79 to 83, 93 to 95, 103, 106 to 108., 120 to 122 and 124 of the cross-examinations in respect of no agreement for payment of the amount within the prescribed period. So far as the tendering of cheques are concerned, he has relied upon the question Nos. 25 and 26 of the Examination-in-chief and question Nos. 110 to 113, 127 of the cross-examination. So far as the concerned questions of the payment through broker is concerned he relied upon question Nos. 102, 103 and 204. Said Mr. Mondal is an employee of the company for last 23 years. As against question No. 8, he stated that Sri Trilok Khemka one of the witnesses of the plaintiff is a broker of the yarn in the market and the defendants have made transaction of yarn through the broker. He has categorically denied the receipt of the debit note against question No. 34. Even he has disputed the rubber stamps used in the debit note. However, in answering the question of the Court being Nos. 72 to 73 he stated that he is not saying it is not their rubber stamp at all but such type of rubber stamp never used in the head office of the defendant. Again, in answer to the question of the Court being Nos. 56 to 58 he stated that defendant has received the goods by way of placing the orders. The plaintiff supplied the goods to the neeters and the neeters informed them that they had taken the delivery of the goods. In fact, the defendant was receiving the finished goods from the neeters i.e. in answer to question No. 59. It is stated that there was no terms of payment for purchase whenever bills were raised on them. They are issued the cheques. The specific answer in this respect is given against question No. 61 in cross-examination 'The broker used to submit the bill one or two days later. When broker used to bring the bill we used to issue cheque'. Under another specific question No. 62 he has stated 'No, it may be more than one or two days later'. Again another specific question bring question No. 63 was put 'May be more than one month'. The answer is 'It may be so'. Question No. 64 is 'These things happen when there is shortage of fund, the payments to be made are delayed. Is it so?' Answer is 'Yes, that is so'. Therefore, upon going through such questions and answers one aspect is very clear that the goods were received. No payment terms were there but payment was made as and when the broker presented the bills either within one day or two or within a month. Such payment was delayed due to shortage of fund.

14. He also referred the questions and answers of Sri Trilok Khemka being Nos. 32 to 38 arid question Nos. 51 to 53 of the Examination-in-chief also question Nos. 62 to 64, 68 to 82 and 92 to 107 of the cross-examination. But before that, in answering question Nos. 1to.4, he has described himself as yarn broker. He has stated that he was doing separate business or broker and some times works as neeter. He has given an answer as against question No. 60 of cross-examination that he is not an employee of the plaintiff. On the other hand he has described that there was no agreement in between the plaintiff and defendant in answering question No. 64 of cross-examination. In respect of forwarding cheque of Rs. 3,67,704.00 paise he as stated in answering question No. 94 onwards of the cross-examination that he has no knowledge about the cheque. He has not received it. He has relied upon a statement of 'Ajitbabu' on the plaintiff being the concerned person for the purpose. In answering question. No. 99 onwards he further stated that he used to see his brother who told him that such 'Ajitbabu' is out and at present he is looking his business. Therefore, neither the depositions of the witness is free from contradictions nor the witness appears to be an appropriate person to depose on behalf of the plaintiff company on account- of the agreement and payment of interest. He has drawn my attention to the question No. 16 being examination-in-chief of Sri Nirmal Agarwal who happened to be accountant of the plaintiff. In answering such question, he stated that the claim amount under the demand notice being Exhibit 'C was for a sum of Rs. 11,63,980.99 paise which includes interest upto the period. He has also drawn my attention to the question Nos. 59 to 64 of Mr. Mondal being the defendant's witness which is in respect of payment by cheque, etc. Once again he specifically drawn my attention to the answer to the question No. 33 of the plaintiff & witness No. 2 being Sri Nirmal Agarwal which is a suggestion on the part of the defendant that said Sri Agarwal had no personal knowledge about service of the demand notice but the answer was given that 'No, I disagree'. Side by side, my attention was drawn to the question No. 37 of Sri Mondal being defendant's witness who stated that no such notice for the sum of Rs. 11,63,980.99 paise was served upon it.

15. However, these are all relevant factors for the purpose of coming to conclusion in respect of the payment of interest or no payment of interest. But what would be the rate of interest, in absence of the particular agreement can not be said to be agreed. Therefore, in case of failure to provide rate of interest by the plaintiff Court has to go by its own discretion in respect of fixation of interest if ultimately the plaintiff becomes successful in establishing payment of the same. Mr. Chatterjee has drawn my attention to : AIR1977Mad56 , (A.K. Srinivasa Naidu v. S. Jayarama Reddian Firm), headnotes 'B' and 'C'. The Division Bench of the Madras High Court was pleased to hold that there is no agreement to pay interest on account of any default arising out of Section 61(2)(a) of the Sale of Goods Act. But such implied legal liability could be negatived by the Course of dealings between the parties under Section 61(2)(a) of the Act.

16. However, Section 61(2)(a) of the Sale of Goods Act prescribes that where any right, duly or liability would arise under a contract of by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage is such as to bind both the parties to the contract. Moreover, the Division Bench held that even in the absence of the contract between the parties regarding payment of interest the plaintiff is entitled to claim interest at the rate of 6 per cent per annum on the net debt due provided he makes a demand for the purpose.

17. He has also relied upon : [1970]1SCR523 , Meghraj and Ors. v. Mst. Bayabai and Ors., to establish that when there is no agreement Interest Act is applicable the case of money lent and advanced or price on goods sold and delivered. Therefore, by applying such test it is to be construed that on account of debt due and payable the interest has to be adjusted first but not the principal. The submission as made by him is supported by the ratio of the judgment as referred above wherein also it was field that the normal rule in the case of debt due with interest is that any payment made by the debtor is at the first instance to be applied towards satisfaction of interest and thereafter to the principal. In the premises, he said, whatever bill has been raised under the demand notice is inclusive of interest which is also evident from the deposition or one of the witnesses of the plaintiff itself.

18. He further cited a judgment reported in : AIR1994Bom48 , State of Maharashtra and Ors. v. Saifuddin Mujjaffarali Saifi, in its head note 'B' and paragraph 45 that current rate of interest has been defined in Section 2(b) of the Interest Act, 1978. The maximum rates at which interest may be paid on different classes of deposits by different classes of scheduled Banks fixed in accordance with the directions given or issued by the Banking companies generally by the Reserve Bank of India under the Banking Regulation Act. The scheduled Bank 'means a Bank not being Cooperative Bank, However, debt means the liability of an ascertained sum of money but not included any judgment debt.' In any event, it has also bracketed under the definition that the interest on account of Savings Bank and those maintained by charitable or religious institutions will not be applicable in determining current rate of interest. Therefore in all submission is made that no amount was due and payable even if purported rate of interest of 24% claimed to be agreed.

19. In turn, I called upon Mr. Tibrewal, learned Senior Counsel appearing on behalf of the plaintiff who contended before this Court that this is a commercial transaction. There is a cause of debt due and delay. Therefore, whenever there is a delay in payment, the defendant is entitled for interest. He has drawn my attention to the question No. 135 put by the defendant in cross-examination by way of suggestion to Mr. Khemka plaintiffs witness vis-a-vis question Nos. 97 to 101 answers of Mr. Mondal to establish contradictions in the stand of the defendant of about one Mr. R. Choudhury who signed the purported purchase orders produced by Mr. Khemka. In any event such purchase order was signed by Sri Khemka. Question No. 50 as well as question Nos. 25 to 32 about of Sri Khemka were drawn attention of the Court. He made his submission by subject matter of handing over cheques. Learned Counsel has given emphasis in respect of question Nos. 23 to 39, 52 to 53, 94, 101 to 104, 112, 116, 119, 125 to 136 of Mr. Khemka. Mr. Tibrewal also drawn my attention to question Nos. 122 to 128 of Mr. Mondal in respect of putting signature by Mr. Chowdhury. Against the question No. 128 Mr. Mondal said about the alleged signature of Mr. Roy Chowdhury by saying that name of one Mr. Nitish Kr. Samanta appearing in the challans is a partner of the firm. But he does not know the stamp. He has also given the answer in question No. 129 that the signature looks like signature of Mr. Samanta. Subsequently, in other question, he said Mr. Samanta's signature as appeared to be there. Mr. Tibrewal contended before this Court that the defendant did not call Mr. Samanta to give evidence. Thereupon, he has drawn my attention to a passage of cross on evidence 4th edition, page 227. Any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction and failure to do this may be held to imply acceptance of the evidence-in-chief. This passage was taken, according to him, from (1869) 6 R 67, Browne v. Dawn, He has also given an emphasis on the famous case on evidence reported in : AIR1961Cal359 , A.E.G. Carapiet v. A.Y. Derderion, at its page 362 paragraph 10 therein. The opponent is declared to avail himself opportunity to put his essential or material case in cross-examination. It must follow that a testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves, to prevent the surprise at trial and miscarriage of justice because it gives motive to the other side of the actual case that is going to be made when the term of the party on whose behalf the cross-examination is being made the case to give evidence by producing witnesses. If he asked no question with regard to this then he must be taken to accept the plaintiffs account in its entity. Such failure reads to miscarriage of justice; firstly by surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never to be and secondly because such subsequent testimony has to change of being tested and corroborated. In this case also the principle as emphasised by Mr. Tibrewal earlier has been followed. Therefore, since the defendant has not produced Mr. Samanla as witness before the Court an adverse inference can be drawn as against the defendant in this respect.

20. That apart, he has also drawn the distinguishing feature of : AIR1994Bom48 (supra) by saying that the interest has indicated therein is in respect of the interest pendente lite and about the Judge's discretion but before that, Court has to come to a definite conclusion as to whether there was an agreed rate of interest or not. Section 61 of the Sale of Goods Act gives provision for pleading and proving. On account of interest, it has to be adjusted first. He has distinguished the ratio in : [1970]1SCR523 (supra). So far as the question of limitation is concerned he stated that continuous account is available from the Annexure 'A' of the plaint. In-any event limitation is a question of fact. When there is no issue of limitation the same cannot be held to be applicable.

21. He has cited a judgment reported in : AIR1981Pat187 , Rajpan Prasad v. Kaushalya Kuerand Ors., in its several paragraphs to establish that even if the plaintiff had failed to prove the existence of the contract for entitlement may recover interest on the amount due to him on account of price of goods supplied. The Court had power to grant interest on the actual price of goods at such rate al it thinks fit. Last payment has been made on 4th April, 1996 from which date the entitled amount with interest to be paid.

22. Mr. Chatterjee, in reply, contended that as per Section 3 of the Limitation Act it is duty of the Court to ascertain the question of limitation. Paragraph 6 of the plaint and paragraph 10 of the written statement are to be looked into. Article 1 of the Limitation Act prescribes for the purpose of balance due even on a mutual open and current account where there had been reciprocal demands between the parties in three years period. The appropriate period from the close of the year in which the last item was admitted or proved is entered into the account. Such year has been computed as to the account. Since it is an admitted position that the last cheque was paid there is no question of part payment. There is no acknowledgement of liability of part payment. In that case there is no liability on account of defendant.

23. It appears from the documentary and oral evidences that excepting two photo-copies of purchase orders produced by the plaintiff's witness, Mr. Trilok Khemka while in the witness box and marked for identification nowhere it appears that there is a fixed period of payment i.e. 30 days and the same is handwritten. In no other exhibited documents it is stated that 30 days is the fixed period and in case of failure in payment within such period 24 per cent is rate of interest. From the right side of such the document it appears that there is a signature of one R. Roy Chowdhury but before such handwritten parties where indications of number of days and interest are handwritten. On the basis of such documents the plaintiff has come to a conclusion that there is a period for 30 days which has to be maintained for payment on default interest is to be paid @ 24 per cent. From the exhibits being Exhibit 'A' series being the documents of the plaintiff claimed to be received by the said Sri Roy Chowdhury rate of interest is reflected as 24 per cent but without any fixed period. These documents are in the form of debit notes. On the other hand from the printed bills for the period of 1993 it appears that interest is printed @ 21 per cent per annum. In the demand notice dated 2nd July, 1996 the interest was calculated at 24 per cent. Therefore, some indication as to the payment of interest in case of any default is available. Moreover, commercial transactions cannot be free from interest. Now I have to come to a definite conclusion in respect of the payment of the dues. I wanted to come to a conclusion on the basis of oral evidences. But I am sorry to say that I am not very happy with the witness action of both the parties. Plaintiffs main witness Sri Trilok Khemka cannot be party to the transaction is between plaintiff and defendant. Admittedly he is yarn broker. Therefore at best he can be accepted a dealer of the disclosed principal i.e. plaintiff. Manager and Constituted Attorney of the plaintiff, who verified the plaint has not been produced to establish the cause. Therefore it is unknown at whose instance he has given evidence. Court may presume that the plaintiff is not at all interested about purported claim. Although one Mr. Nirmal Agarwal claimed to be the accountant for the relevant period but in answer to question Nos. 15 and 16 he replied that interest includes the figure in the demand notice i.e. Rs. 11,63,983.99 paise even in examination-in-chief. Therefore his evidence cannot improve the case of the plaintiff for any amount more than that even on account of interest. On the other hand the defendant produced only one witness i.e. manager of the defendant who verified the plaint. Therefore his evidence carries weight than the plaintiff s witnesses before the Court of Law in respect of transactions. Although one of the partners Sri Nitish Kr. Samanta who issued the cheque was not produced for witness action nontheless manager can vouch for the same. Mr. R. Roy Chowdhury claimed to be the previous employee. In any event, if plaintiff required anybody's presence the same could have been avoided and could have asked for issuance of subpoena. However sheet anchor of the case if persuasive argument of Mr. Chatterjee in respect of the statement of account of the plaintiff itself. It has made me slightly tilted in his favour in giving less accommodation to the plaintiff. It is an admitted position from the calculation as given by him that no sum was due and payable before the institution of the suit. It also appears from the cheque being marked for identification being PD No. 29 that cheque was tendered presumably on 29th October, 1996 prior to the institution of the suit which was not received by the plaintiff as would be evident from the order of this Court dated 3rd March, 1999. Mr. Tibrewal, learned Counsel, appearing for the plaintiff contended that they have no objection in receiving the cheque without prejudice to the rights and contentions of the parties. Such order was passed. However, in final conclusion the Court cannot come to a definite finding that there was no refusal in making payment. Therefore, the sum of Rs. 3,67,740/- was claimed to be paid in the month of October, 1996 on account of any part payment of the debit note for the month of June, 1996, the plaintiff would be entitled to interest from June, 1996 to October, 1996. Since the payment was refused by the plaintiff and ultimately 'accepted on being tendered as per the order of the Court dated 3rd March, 1999 payment of interest for such period is disallowed but again the payment of interest to be accrued on such amount from the date of the order i.e. 3rd March, 1999 till the payment. The calculation of the defendant seems to be correct. Therefore, now it is the question of rate of interest on such amount and the period so fixed. According to me non-production of the partner of the defendant i.e. Sri Nitish Kr. Samanta, who issued the cheque, as witness will definitely give rise an element of adverse inference that in case of non-payment of principal amount it will liable to pay interest. In other words balance of payment of principal sum will carry interest. Accordingly, the Court has drawn an adverse inference that in case of default there is a provision of payment of interest specially when it is available from the debit note and demand notice which provides rate of interest @ 24% per annum. But since the period has not been proved save and except '30' as written in the photocopies of two documents produced by Sri Khemka from his custody kept as marked for identification under the name of one Mr. Roy Chowdhury there is no proof what should be the period of default for calculating the interest. Therefore, I have to apply my discretion in respect of ascertainment of the interest and the period. It is an admitted position that debt includes interest and such interest is to be adjusted first. Therefore, it is also doubtful whether any interest has not yet been adjusted at all.

24. Hence, taking into totality of the facts and circumstances of this case and applying the test of balance of convenience I hold that there should be a decree for a sum of Rs. 3,67,740/- which was paid by the plaintiff to the defendant under an order dated 3rd March, 1999. Such decretal amount will carry interest at the rate of 24% per annum from June, 1996 to October, 1996 but at a simple rate when the same was tendered by a cheque and it was refused by the plaintiff. Thereafter, the plaintiff will only be entitled for the interest interim, further and interest on judgment at the same rate i.e. 24% per annum at a simple rate from the date of the order of the Court on 3rd March 1999 till such date when such sum of Rs. 3,67,740/- was actually received by the plaintiff. The cost assessed at Rs. 10,000/-. Thus, the suit is disposed of.

25. Xerox certified copies of this judgment will be supplied to the parties within seven days from the date of putting requisites.

26. All parties are to act on a signed copies minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the officer of the Court in respect as above.