Star Paper Mills Ltd. vs Behari Lal Madan Lal Jaipuria And ...
2007 Latest Caselaw 608 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The plaintiff is a limited company engaged in the business of manufacture of various varieties of paper which are sold through wholesalers. The arrangement of such sale is stated to be through direct payment or payment against hundies payable on due date with the bank by the such wholesalers.

2. Defendant No. 1 was working as a wholesale dealer of the plaintiff-company in purchasing material. Defendant No. 2 is stated to be the Managing Director of defendant No. 1 and defendant No. 1 is stated to be controlled by both defendants No. 2 and 3.

3. The terms of the sale of the paper to defendant No. 1 was stated to be through limited credit of 45 to 60 days. Fifteen days interest free credit facility from the date of delivery was available and thereafter interest was charged. Any default of payment carried interest of 21 per cent per annum from date of delivery till date of payment and further penal interest at 3 per cent. The arrangement between the plaintiff and defendant No. 1 worked satisfactorily up to September, 1985.

4. In October, 1985, defendant No. 2 is stated to have approached the plaintiff personally at the Saharanpur Mills for what was claimed to be a bulk order in their hands from customers. The defendants wanted to lift higher quantity of goods. These huge stocks are stated to have been lifted in the month of November-December, 1985 and January, 1986. The total value of the goods supplied is stated to be worth Rs.72,27,079/- vide 189 consignments against the terms of direct payment. These goods are stated to have been sold to defendants vide nine consignments worth Rs.2,99,480/- against the terms of payment through hundi document signed through authorized representatives. The plaintiff claims that all these amounts are due apart form incidental charges levied on certain bills accepted by defendants. Interest is also claimed at the contractual rate.

5. Certain on-account payments are stated to have been made by defendant No. 1 apart from certain adjustments made. Defendant No. 1 is also stated to have deposited sums against various debit notes towards trade discount deposit, which was adjusted against the balance payment of interest. The detailed calculations have been set out in the annexures to the plaint. The total principal balance amount claimed is Rs 71,82,266/- apart from interest on outstanding bills of Rs 24,59,499.31/- totalling to the suit amount of Rs 96,41,765.31. The liability is sought to be affixed on defendants No. 2 & 3 also on account of allegation of dishonest intention of manipulation of funds and stocks of defendant No. 1.-company.

6. The suit has been contested by the defendants. Defendants No. 2 & 3 have denied any personal liability. Defendant No. 1 is a public limited company which was converted from an original partnership firm in the year 1976. It is a case of the defendants that the disputes really arose on account of the change of the management of the plaintiff which was earlier controlled by the family of the Bajorias who were closely related to defendants No. 2 & 3. Subsequently, the Goenkas took over the business. Defendant No. 1, in fact, has claimed settlement of accounts on account of ad hoc payments made from time to time. The defendant No. 1 in sum and substance has claimed that there was actually no supply of paper made to the said defendant but the whole arrangement was a subterfuge for tax gains, though defendant No. 1 also participated in the same. This arrangement is stated to be originally perceived by the Jaipurias whereby defendant No. 1 was to receive certain bills drawn on them on account of the fact that the plaintiff intended to sell certain quantity of paper in the open market at a price higher than the mill price. This paper could not be taken out of the mill until the bills were accepted by one of the wholesaler/dealer. The defendants claimed to have come under pressure since they were wholesalers/dealers of the plaintiff and they were held out a threat of termination of such dealership. The transaction is also alleged to be one for evasion of tax since the sales tax on direct sales from Saharanpur was 40 per cent while if the goods were transported to the Delhi Depot of the plaintiff and sold from the Depot, no sales tax was leviable. Defendant No. 1 claims to have paid a sum of over Rs 2.7 crore in accounts towards payment of goods from May, 1985 onwards and thus payments were made towards the genuine supplies made.

7. Issues were framed on 07.04.1995 which are as under:

PRELIMINARY ISSUES:

A) Whether the plaintiff has paid proper court fees on the plaint?

B) Whether there is a counter claim raised in written statement?

C) Whether the defendant is liable to pay Court Fees thereon?

D) Whether the suit is not maintainable and is liable to be dismissed as barred under Order 2 Rule 2 of the Code of Civil Procedure?

E) Whether the plaint is liable to be rejected/amended in terms of the judgment in IA No. 3250/89 where the plaintiffs have undertaken not to rely upon and claim any relief against the defendants on the basis of averments of the dishonest intention, manipulation and fraud etc. made in para 18 of the plaint?

ISSUES

1) Whether the plaint has been signed, verified and instituted by a person competent to do so?

2) Whether the defendant nos. 2 & 3 are personally liable for the claims against the defendant No. 1?

3) Whether the alleged bills forming the claim in the suits have been raised on the basis of the fictitious and fraudulent transactions?

4) Whether the defendant No. 1 accepted the bills without actual delivery of goods to it?

5) Whether there was any sales office or sales depot of the plaintiff at Delhi, from which the plaintiff has made alleged sales to the defendant No. 1?

6) Whether the defendant No. 1 was purchasing paper from the Delhi Office of the plaintiff?

7) Whether on a representation made by the defendant No. 2 in the month of October, 1985, personally at Saharanpur Mills, the defendant No. 1 lifted huge stock of paper in the months of November, December, 1985 and January, 1986 from the plaintiffs?

8) Whether the defendants No. 2 and 3 gave assurances to the plaintiff and acting on them the plaintiff supplied goods to the defendant No. 1?

9) Whether the defendant No. 1 is under undue influence, coercion and threats as detailed in written statement?

10) Whether the defendant No. 1 accepted the hundi as detailed in Annexure 'B' of the plaint?

11) Whether the plaintiff is entitled to recover any incidental charges as detailed in Annexure 'C' of the plaint?

12) Whether the plaintiff could not have adjusted the credit due to the defendant against the outstanding amounts as alleged in the plaint?

13) Whether the suit for interest alone is not maintainable as principal amount has been received and accepted by the plaintiff unconditionally?

14) Whether the plaintiff is entitled to and can claim interest at the rates claimed in the suit?

15) Whether the interest claimed is hit by the provisions of Usurious Loans Act?

16) Whether the claim of the plaintiff in respect of certain bills allegedly accepted by the defendant is barred by time?

17) Whether the plaintiff has not given due and proper credit to the amounts paid by the defendant amounting to Rs.2,72,08,308.29/- from May, 1985 till the date of filing of the written statement?

18) Whether the plaintiff is liable to render true and proper accounts to the defendants from the inception of the wholesale dealership up to date between the parties?

19) To what amount, interest and relief the plaintiff and/or the defendant are entitled to claim from each other?

8 Although the first five issues were to be treated as preliminary issues, the record shows that at no stage of time these preliminary issues were decided nor were they pressed to be decided as preliminary issues. The result is that even the preliminary issues have to be decided now along with other issues after trial has taken place. The plaintiff has examined Sh. Anand Swaroop Bhargava as PW1 while Sh. R.C.Jaipuria stepped into in the witness box as DW1 to support the case of the defendants.

9. Learned Counsel for the parties were heard at length. The findings on the issues are as under:

PRELIMINARY ISSUE No. A

A) Whether the plaintiff has paid proper court fees on the plaint?

10. The plaintiff has undisputedly paid ad valorem court fee on the said amount It is the plea of the defendants that each delivery is to be a separate contract as per ExDW1/2 and thus separate court fee is payable for each transaction under Section 17 of the Court Fees Act, 1870. It is not in dispute that the transaction between the parties was running over a period of time. Goods used to be supplied from time to time for which invoices were raised. Ad hoc payments used to be made by defendant No. 1 at times while at times the full bill amount used to be paid as per the past practice. Thus amounts were credited to the account of defendant No. 1 maintained with the plaintiff. The amount claimed is on account of the total supplies made after giving credit for the amounts paid from time to time as also certain discounts and other credit notes available for the benefit of defendant No. 1. In view thereof, it is not necessary to pay court fees on the amounts calculated for each separate bill, the plaintiff having paid ad valorem court fee on the total amount. The issue is answered in favor of the plaintiff.

B) Whether there is a counter claim raised in written statement?

C) Whether the defendant is liable to pay Court Fees thereon?

11. The defendant in the written statement has made a claim of Rs 2,72,08,308.29/-, though no details of the same have been given. This is really in the nature of a counter claim. The defendants cannot couch the amount in the form of a relief for rendition of accounts. The defendants have led no material evidence in this behalf nor have they paid court fees on the same. The counter claim of the defendants cannot thus be entertained and the issue is answered accordingly.

D) Whether the suit is not maintainable and is liable to be dismissed as barred under Order 2 Rule 2 of the code of civil procedure?

12. The plea of bar of suit under Order 2 Rule 2 of the Code of Civil Procedure, 1908 ('the said Code' for short) is predicated on the plea that two other suits have been filed against the defendants for sale of goods during the same period of time. The plaintiff has explained that there were two nature of sales made - one supplied to the defendants from Delhi while the other supplies made to the defendants from the mill at Saharanpur. The present suit is confined to the supplies made from Delhi. Not only that the present suit is stated to be filed prior to filing of the other suits and thus there can be no question of application of provisions of Order 2 Rule 2 of the said Code to the present suit apart from the fact that the supplies originate from two different places. The issue is answered in favor of the plaintiff.

E) Whether the plaint is liable to be rejected/amended in terms of the judgment in ia No. 3250/89 where the plaintiffs have undertaken not to rely upon and claim any relief against the defendants on the basis of averments of the dishonest intention, manipulation and fraud etc. made in para 18 of the plaint?

13. Learned Counsel for the plaintiff did not dispute the fact that while the application of the defendants IA No. 3250/1989 was being considered for stay of the suit on account of the criminal prosecution of the defendants No. 2 & 3 on the ground of prejudice to be caused in the criminal trial, the counsel for the plaintiff had made a statement that the plaintiff would not rely upon the allegations of criminality against defendants No. 2 & 3. Learned Counsel for the plaintiff has also not been able to seriously dispute that no evidence has been led by the plaintiff for lifting of the corporate veil to fasten the liability of defendants No. 2 & 3. Whatever was done by the said defendants was on behalf of defendant No. 1. The result is that though the plaint is not liable to be rejected as a whole, the relief in the suit can only be claimed against defendant No. 1 and defendants No. 2 & 3 are absolved from any liability. The issue is answered accordingly.

ISSUES

1) Whether the plaint has been signed, verified and instituted by a person competent to do so?

14. The plaintiff has produced a copy of the Board Resolution dated 10.09.1987 authorizing Sh.L.K.Poddar to institute the suit. This Resolution has been accepted as ExP 909. Sh.L.K.Poddar is stated to have left the employment of the plaintiff prior to the commencement of the evidence and his whereabouts are not known. Thus PW1 proved the said Resolution and being familiar with the signatures of Sh. L.K.Poddar was able to identify the same. The original Minute Book has been kept available for the scrutiny by the court. It cannot thus be said that there is no proper authority for the institution of the suit.

15. Learned Counsel for the defendants referred to the judgment of the learned Single Judge of this Court in M/s Nibro Ltd v. National Insurance Co. Ltd. and State of Haryana v. Bharat Stell Tubes Ltd. AIR 1996 Delhi 198. These two judgments only emphasize that plaintiff cannot succeed in a suit unless an authorization in favor of the person instituting the suit is proved. Since the same is proved, these judgments do not come in the way of the plaintiff. The issue is answered in favor of the plaintiff.

2) Whether the defendant Nos. 2 & 3 are personally liable for the claims against the defendant No. 1?

8) Whether the defendants No. 2 and 3 gave assurances to the plaintiff and acting on them the plaintiff supplied goods to the defendant No. 1?

16. In view of the findings arrived at in Preliminary Issue No. (E), defendants No. 2 & 3 have been held not to be personally liable for any claims against defendant No. 1. The issues are answered in favor of the said defendants No. 2 & 3.

3) Whether the alleged bills forming the claim in the suits have been raised on the basis of the fictitious and fraudulent transactions?

4) Whether the defendant No. 1 accepted the bills without actual delivery of goods to it?

5) Whether there was any sales office or sales depot of the plaintiff at Delhi, from which the plaintiff has made alleged sales to the defendant No. 1?

6) Whether the defendant No. 1 was purchasing paper from the delhi office of the plaintiff?

7) Whether on a representation made by the defendant No. 2 in the month of October, 1985, personally at Saharanpur mills, the defendant No. 1 lifted huge stock of paper in the months of November, December, 1985 and January, 1986 from the plaintiffs?

9) Whether the defendant No. 1 is under undue influence, coercion and threats as detailed in written statement?

17. The submissions of learned Counsel for the parties on these issues were made at one go since these are interconnected and, in fact, are the crux of the dispute between the parties. The substratum of the defense of the defendants against the claim of goods supplied is that the goods were actually not supplied though the bills had been received. These goods are stated to have been sold by the plaintiff in the open market and a subterfuge was enacted only to gain benefit for the plaintiff. It is not in dispute that defendant No. 1 participated in the same though the claim is that this was under the threat of termination of the wholesale dealership. It is not in dispute that that defendants No. 2 & 3 are established business persons and are educated. It is not a case where an illiterate person would have executed documents or entered into an arrangement with anyone without knowing the contents or implications thereof. If the defendants with their eyes open entered into a particular arrangement, they will have to bear the consequences of the same. The burden would lie heavily on them to establish that, in fact, no such goods were supplied and the arrangement was only a ruse.

18. On the framing of the issues and the nature of defense, it is obvious that the onus was on the defendants to establish such fictitious and fraudulent transaction.

19. In my considered view, the defendants have failed to discharge this onus. DW1 during his cross examination could not dispute that the bills and debit notes were signed by the defendants. PW1 proved the accounts. The arrangement for supply against hundies has not really been disputed. This arrangement was practiced even in the past and has so continued.

20. A material aspect to be considered is the ST I forms issued by the Sales Tax Department. Such ST I forms are issued in duplicate and were obtained by the defendants from the Sales Tax Department. Defendant No. 2 signed these ST I forms and handed over a copy of the same to the plaintiff which was to be used by the plaintiff before the Sales Tax Department. These second copies of the ST I forms have been proved as Ex P607-763. The occasion for issuance of these sales tax forms would only arise if goods had been supplied. It hardly lies in the mouth of the defendants to claim that they did all this only to assist the plaintiff without ever having received the goods.

21. I am unable to accept the plea advanced by the learned Counsel for the defendants that the onus to prove the transaction is bona fide and genuine and is upon the plaintiff and that the onus would shift upon the defendants after plaintiff discharges its onus. The past transactions are not in dispute. Defendants admit to an arrangement for above goods and execution of documents. The plaintiff cannot be asked to prove in the negative merely because the plaintiff has instituted the suit. The way the issues have been framed itself shows that the onus has been put on defendant No. 1 in view of the nature of defense of defendant No. 1.

22. Learned Counsel for the defendant contended that the plaintiff has failed to produce the best available evidence. It was submitted that some of the material witnesses in the matter have not been produced and that no witness from the company of auditors was produced. In this behalf, learned Counsel referred to the judgment in Janaki Narayan Bhoir v. Narayan Namdeo Kadam wherein it was observed that placing the best possible evidence in the given circumstances, before the court for consideration is one of the cardinal principles of the Indian Evidence Act. In Rajappa Hanmantha Ranoji v. Mahadev Channabassappa and Ors. , it was found that the examination of respondent no 4 as a witness, which was vital and at the heart of the matter was not done and there was no explanation of his non examination. It was held that the decree was based on no evidence and was perverse. In Bharat Heavy Electricals Ltd. v. State of Uttar Pradesh and Ors. , the appellant did not produce records alleging that they were not available which led to drawing adverse inference against them.

23. I am unable to accept the plea of the learned Counsel for the defendants that the documents have not been proved in accordance with Sections 61, 62 and 63 of the Evidence Act, 1872. It cannot be said that in case of a corporate entity like the plaintiff, if the principal person earlier dealing with the transaction is not available, no claim would lie. PW1 appearing for the plaintiff proved documents. The suit is really based on documents.

24. Learned Counsel for the defendant submitted that by not producing the original books of account, the plaintiff has failed to prove its case. Only the excerpts of the entries stated to be contained in the book have been appended and not the reproduction of the account books. It was further submitted that the provisions of Order 7 Rule 17 of the CPC were not complied with. In this regard, reference was made to the judgment of the Apex Court in Ishwar Dass Jain dead through LRs v. Sohan Lal Dead by LRs wherein it was observed that sanctity Is attached in the law of evidence to books of account if they are account books in the original and show on their face that they are kept in the regular course of business. Such sanctity cannot attach to private extracts where the original accounts are not filed in court. Where original books are not produced, it is not possible to know whether the entries relating to the payment are made in the regular course of business. Extracts from accounts are not account books falling within Section 34 of the evidence Act and are inadmissible. In Chandradhar Goswami v. Gauhati Bank Ltd. , it was observed that no person can be charged with liability merely on the basis of entries in books of accounts, even where such books are kept in the regular course of business. There has to be further evidence to prove payment of the money which may appear in the books of accounts in order that a person may be charged with liability except where the person charged accepts the correctness of the books of accounts and does not challenge them. Learned Counsel for the plaintiff on the other hand submitted that PW1 had proved the books of accounts in court but he was not cross examined on this account.

25. The conspectus of the above judgments shows that sanctity is attached in law to account books in the original but even where account books are kept in the regular course, liability cannot be fixed merely on the basis of the entries in such books and further evidence is to be given. It may be noticed that the plaintiff is not only relying on the said extracts to prove its case but has also placed a number of other documents on record including the ST I forms, debit notes, credit notes, hundis, bills etc

26. Learned Counsel for the defendants sought to rely upon the observations made in the Apex Court in Subhra Mukherjee and Anr. v. Bharat Cooking Coal and Ors. . The Apex Court while discussing the provisions of Section 101 of the Evidence Act, 1872 observed that where there is an issue of sham and bogus transaction, the party making the allegation must prove it but where the question before the Court was whether the transaction in question was bona fide and genuine, the party relying on the transaction has to prove its genuineness first. It is only thereafter would the defendant be required to dislodge it and to prove that the transaction was sham and fictitious. It may be noticed that this was a case where on remand of the case, the question arose whether the transaction in question was bona fide and genuine one.

27. Learned Counsel for the defendant drew the attention of the court to the judgment of the Apex Court in Shiv Chander Kapoor v. Amar Bose . In this case, the court was inter alia, looking into the nature and scope of enquiry to be made by the rent controller when the validity of permission granted under Section 21 of the Delhi Rent Control Act, 1958 was challenged. It was observed that the scope of enquiry when the validity of the permission granted by the controller is assailed is to determine whether the permission granted was not really for a genuine tenancy for a limited period but a mere pretence for circumventing the provisions of Section 14 of the Delhi Rent Control Act, in which case, such act being a fraud on the statute does not bind the tenant whose consent to the sham transaction was obtained taking advantage of hid unequal bargaining power. In such a case the tenant can assail the permission. The aforesaid observations are in the context of Section 21 of the Delhi Rent Control Act. Furthermore, they are to the effect that a tenant who has consented to a sham transaction by reason of his unequal bargaining power can assail the permission granted. It states that on a tenant's complaint questioning the validity of the permission, the controller is to issue notice to the landlord and make an adjudication with opportunity to both sides of being heard. It is for the tenant to raise a plea during currency of the tenancy and on such a plea enquiry is contemplated. However, the judgment does not really throw light on the issue of burden of proof.

28. A perusal of the issues framed in the present case would show that the onus has been placed on the defendants. This is apparent from a bare reading of issues No. 3 & 4. This is so since the present suit is based on documents which establish the transaction and that being the position, the onus was put on the defendants to show that the transaction was not bona fide.

29. A lot of emphasis was laid by learned Counsel for the defendants on the fact that the plaintiff has failed to prove the existence of any godowns at Delhi to advance the plea that the goods used to be actually directly dispatched to the local customers. In this behalf, learned Counsel referred to the challans which bore different addresses of the godowns during the same period of time. This has been explained by the learned Counsel for the plaintiff. Learned Counsel submitted that the evidence on record shows that there were different godowns. There is no prohibition of having different godowns and since the letting out of these godowns is normally for short periods, there used to be changes in the godowns to which the goods were brought into Delhi and stored.

30. Learned Counsel for the defendants sough to challenge even the endorsements made on the various invoices against which delivery was made. These are invoices where there is no challan but are stamped with a seal of defendant No. 1 with an endorsement 'bill-cum-challan'. These are signed by the directors of defendant No. 1 and yet learned Counsel states that they cannot be relied upon only because the directors of defendant No. 1 used to be not sitting at the godowns while delivery used to be made at the godowns. This is hardly a plea which can be accepted. I am also unable to accept the plea that the nature of transaction was unusual or that the defendants came under some pressure. Defendant No. 1 had been a wholesale dealer of the plaintiff for some years. If defendant No. 1 willingly gets into a transaction with the plaintiff, the defendant No. 1 cannot pass on liability by merely claiming that defendant No. 1 was an unwilling party to the transaction.

31. Learned Counsel for the plaintiff has also fortified his case by reference to Ex 821-827 being various letters addressed by the defendants to the plaintiff which inter alia referred even to tax deduction at source. Learned Counsel also emphasized that even the specimen signatures of the defendants were made available as per Ex P 870.

32. In my considered view the defendants have miserably failed to discharge the onus placed on them to show that there was any fraudulent transaction in question. The issues are answered accordingly.

10) Whether the defendant No. 1 accepted the hundi as detailed in annexure 'b' of the plaint?

33. It is not in dispute that supply against hundies was a practice adopted in the transaction between the parties. The hundies were sent by the plaintiffs through their bankers. The hundies were admittedly never paid/honoured. RW1 Sh.R.C.Jaipuria in his cross examination on 06.12.2004 did not dispute that the practice of payment by way of hundies towards supply of material was an accepted practice. This issue is answered accordingly in favor of the plaintiff.

11) Whether the plaintiff is entitled to recover any incidental charges as detailed in annexure 'c' of the plaint?

34. PW1 has stepped into the witness box to confirm the incidental charges as per annexure C. A perusal of the nature of such incidental charges also shows that the same are as per the debit notes issued and the total amount is Rs 3659/-.

35. The defense of the defendants has to be looked into in the overall conspectus of the defense whereby the defendants are really seeking to absolve the liability only on the pretext of the whole transaction being under duress and pressure of the plaintiff without any supply being made. The defendants have failed to establish this. Thus the issue is answered in favor of the plaintiff.

12) Whether the plaintiff could not have adjusted the credit due to the defendant against the outstanding amounts as alleged in the plaint?

36. The burden was put on the defendants to establish as to why the plaintiff could not have adjusted the credit dues to defendant No. 1 against the outstanding amount. The plea of the learned Counsel for the defendants is that the plaintiff has failed to prove that he is entitled to adjust the trade discounts against the dues while the fact remains that the onus was on the defendants. The plea of learned Counsel for the defendants thus cannot be accepted and is rejected. The plaintiff has thus rightly adjusted the dues.

13) Whether the suit for interest alone is not maintainable as principal amount has been received and accepted by the plaintiff unconditionally?

37. This issue has not been pressed by learned Counsel for the defendants and is thus answered accordingly.

14) Whether the plaintiff is entitled to claim interest at the rates claimed in the suit?

15) Whether the interest claimed is hit by the provisions of Usurious Loans Act?

38. These two issues relate to the claim of interest. The interest is claimed as per the invoice. Penal interest of 3 per cent is provided. Defendant No. 1 was paying interest to the plaintiff on the basis of debit notes raised by the plaintiff earlier at the agreed rate of interest of 21 per cent. Copies of the relevant letters, details/statement of interest and interest debit notes are ExP764-820. The letter dated 29.08.1984 (Ex. P 764) of the plaintiff addressed to defendant No. 1 mentions that interest at the rate of 21 per cent will be charged from the date of delivery till the date of payment and a further penal interest of 3 per cent shall be charged from the due date in case the payment is made within a certain specified number of days from the date of delivery and at 3 per cent from the date of delivery if the payment is made beyond such specified number of days.

39. The aforesaid shows that the interest has been charged as per market rate for commercial transaction along with penal interest provided for in case of default in payment. Learned Counsel for the defendants has not been able to explain how the rate of interest is hit by provisions of Usurious Loans Act, 1918. The plaintiff is thus entitled to interest as claimed.

16) Whether the claim of the plaintiff in respect of certain bills allegedly accepted by the defendant is barred by time?

40. This issue is not pressed by the defendants and is thus answered accordingly.

17) Whether the claim of the plaintiff in respect of certain bills allegedly accepted by the defendant is barred by time?

18) Whether the plaintiff has not given due and proper credit to the amounts paid by the defendant amounting to Rs.2,72,08,308.29/- from may, 1985 till the date of filing of the written statement?

41. A perusal of these issues again shows that the issues have again put onus on the defendants. Once again, learned Counsel for the defendants seems to be under misconception that the plaintiff has to discharge the onus. The defendants have not been able to prove the claim nor have they affixed the requisite court fees being in the nature of a counter claim. In fact, while deciding the preliminary issues, the present issue has been accordingly answered. There is no material evidence led by the defendants in this behalf. The issues are answered against the defendants.

19) To what amount, interest and relief the plaintiff and/or the defendant are entitled to claim from each other?

42. In view of the findings aforesaid, it is apparent that the plaintiffs have been able to establish the claim as set out in the suit consisting of principal amount of 71,82,266/- and interest amount 24,59,499.31/-. The question arose of pendente lite and future interest. The transaction is a commercial one. No doubt there have been periodic decrease in the interest rates, but at least for almost a decade after filing of the suit, the interest rates continued to be high.

43. On consideration of the matter, I am of the view that simple interest at the rate of 15 per cent per annum from date of institution of suit till date of realization of the principal amount would meet the ends of justice in the present case.

Relief

44. The suit of the plaintiff is decreed against defendant No. 1 for the sum of Rs 96,41,765.31/- along with simple interest at the rate of 15 per cent per annum from the date of institution of the suit i.e. 05.10.1987 till date of payment on the principal amount of Rs 71,82,266/-. The plaintiff shall be entitled to costs.

45. Suit is dismissed qua defendant No. 2 & 3 with no costs.

46. Decree sheet be drawn up accordingly.