Kurapati Venkata Mallayya And Another v. Thondepu Ramaswami And Co. And Another

Mudholkar, J.— This is an appeal by a certificate granted by the High Court of Andhra Pradesh under Article 133(1)(a) of the Constitution.

2. The relevant facts are these:

3. The plaintiff-respondent Ramaswamy & Co. who carry on business in tobacco at Guntur instituted a suit against the appellant firm which also carries on similar business at that place and its alleged partners Kurapati Venkata Mallayya and Mittapalli Abbayya, for the recovery of the price of 112 bales of DB tobacco strips (hereafter referred to as DB strips) sold to them on June 5, 1946, amounting to Rs 14,095 and interest thereon from the date of purchase to the date of suit. In addition, the respondent firm claimed interest from the date of suit to the date of realization. It is the respondent firm's case that the tobacco weighed 28,196 pounds and that the appellant firm purchased it by agreeing to pay its price at 8 annas per pound. Further according to the respondent firm the appellant firm agreed to pay interest on the amount at 9% per annum. The appellant firm denied having purchased 112 bales of tobacco from the respondent firm and denied also having agreed to pay its price at 8 annas per pound or at any other rate. They also denied the existence of any agreement to pay any interest.

4. According to the appellant firm in May 1946 it secured a contract to supply to the Russian Government 3000 bales of inferior tobacco at the rate of 8 annas per pound. One Kottamasu Venkateswarlu (who was distantly related to the partners of the appellant firm) was the managing partner of the respondent firm. This firm had some inferior tobacco and Venkateswarlu pressed the appellant firm to take over 112 bales of that tobacco from it and tender them towards the contract with the Russian Government saying that the appellant firm may deduct one anna per pound from the price received from the Russian Government towards their expenses and commission. The appellant firm had reluctantly agreed to this request and despatched 97 out of the 112 bales to Kakinada after getting Agmark certificate with respect to them, with the assistance of Venkateswarlu. The representative of the Russian Government, however, rejected the goods on the ground that they were of inferior quality. Five bales out of these 97 bales were rejected by the Agmark authorities after re-inspection of the goods at Kakinada. Those bales were returned to Guntur along with other rejected bales which belonged to the appellant firm but they were consumed in an accidental fire in the godown of the appellant firm. The remaining 92 bales are said to be still lying with the shipping agent at Kakinada and that as the tobacco is of very poor quality no purchaser had yet been found for it. Fifteen bales out of the 112 bales which had not been sent to Kakinada got damaged and had to be rebaled. As a result of the rebaling they were reduced to ten bales and these are still lying with the appellant firm, which the appellant firm was willing to return to the respondent firm on its paying the godown charges.

5. Thus, the main defence of the appellant firm is that it never purchased 112 bales of tobacco from the respondent firm and, therefore, the respondent firm could not sue it for the price of those bales. It may be mentioned that before the institution of the suit a Receiver had been appointed in another suit for realisation of the debts due to the respondent firm. The court before which the suit was pending had made an order on June 22, 1949 permitting the Receiver to collect the debts due to the respondent firm. In pursuance of this order the Receiver Suryanarayana instituted the suit out of which this appeal arises, describing himself thus in that plaint: “I, Suryanarayana Garu, Receiver appointed in OS 275 of 1948 on the file of the District Munsif's Court, Guntur.” The appellant firm contended that the suit was untenable because a Receiver has no right to institute a suit in his own name and further that the Receiver had not been expressly authorised by the court to institute the suit in question. The appellant firm also contended that the suit was barred by time. It specifically contended that the respondent firm was not entitled either to the alleged price or to any interest. The appellant firm further contended that Mittapalli Abbayya ceased to be a partner of the firm since the year 1942 because as a result of a partition between Abbayya and his sons, Abbayya's interest in the appellant firm fell to the share of one of his sons, Kotilingam.

6. In consequence of the plea taken by the appellant firm that the suit was not tenable the respondent firm amended the plaint with the leave of the court on December 27, 1949 by describing the plaintiff as “Messrs Thondepu Ramaswami & Co., represented by I. Suryanarayana Garu Receiver appointed in OS 275 of 1948 on the file of the District Munsif's Court, Guntur.” in place of the original “I. Suryanarayana Garu, Receiver appointed in OS 275 of 1948 on the file of the District Munsif's Court, Guntur.” Thereupon the appellant firm filed an amended written statement in which it contended that the amendment was made long after the period of limitation and that it does not cure the initial defect in the suit of having been filed by a person other than the one who was entitled to institute a suit and that consequently the suit was barred by limitation.

7. The trial court held that the respondent firm had established the contract alleged by it but that it had not established that the appellant firm had agreed to pay the price at the rate of 8 annas per pound. It, however, held that the price of tobacco was Rs 5639-3-0, but it, dismissed the suit on the ground that I. Suryanarayana was not entitled to institute a suit in his capacity as Receiver in 0S 275 of 1948, that the amendment of the plaint was made beyond the period of limitation and that, therefore, the suit was barred by time.

8. In appeal the High Court held that the Receiver was entitled to institute the suit having been authorised by the Court to collect the debts of T. Ramaswami & Co., that at the most there was a misdescription of the plaintiff firm in the cause title of the suit which could be corrected any time and that consequently the suit was within time. It further held that the price of tobacco agreed to between the parties was 8 annas per pound and that the plaintiff was entitled to a decree for Rs 14,098 and interest at 6% p.a from the date of delivery of the goods till realization.

9. The first point urged before us by Mr Ranganadham Chetty on behalf of the appellant firm is that the High Court, as well as the Subordinate Judge were in error in holding that the bales in question had been purchased by the appellant firm from the respondent firm. This, however, is a question of fact and since the two courts below have found against the appellant firm on this point this Court would not ordinarily interfere with such a finding. Mr Ranganadham Chetty, however, contended on the authority of the decision in Bibhabati Devi v. Kumar Ramendra Narayan Roy that the practice of the court in appeals by special leave is not a cast iron one and that it would, therefore, be open to this Court to depart from it in an appropriate case. The aforesaid decision was referred to by this Court in Srinivas Ram Kumar v. Mahabir Prasad (1951) SCR 277 at p. 281 and it was pointed out that when the courts below have given concurrent findings on pure questions of fact, this Court would not ordinarily interfere with them and review the evidence for the third time unless there are exceptional circumstances justifying a departure from the normal practice. Learned counsel contended that this is an unusual case because the reasons given by the High Court for holding that the transaction was a sale are quite different from those given by the trial court and in fact one of the reasons given by the High Court proceeds on a view of an important piece of evidence which is diametrically opposite to that expressed by the trial court. Mr Ranganadham Chetty pointed out that in support of its claim the respondent firm relied upon two entries in its account books Exs. A-13 and A-14, that these entries were not relied upon by the trial court, but the High Court has without giving any reasons for regarding them as genuine, acted upon them. What the trial court has said in para 14 of its judgment is as follows:

“In order to establish the sale of 112 bales of flue cured virginia tobacco strips, Ramaswamy relies on certain entries in the account books of his firm. Exhibit A-13 is the katha on p. 27 of the day-book of Thondepu Ramaswamy & Co., containing an entry in respect of 112 bales weighing 28,196 pounds at Re-0-8-0 per pound and debiting a sum of Rs 14,098. The words ‘Re 0-8-0 per pound' are contained in the third line of the entry. The words ‘112 bales weighing 28,196 pounds at Re 0-8-0 per pound' appear to be written closely. The sum of Rs 14,098 appears in different ink. Exhibit A-14 is the katha of the 1st defendant firm found on p. 111 of the corresponding ledger of Thondepu Ramaswamy & Co. On 5-6-1946 a sum of Rs 14,098 was debited in respect of 112 bales of barn tobacco weighing 28,196 pounds at Re 0-8-0 per pound. In the second line of the entry the price therefor () and the debit of the sum of Rs 14,098 are found. On 21st August, 1946 interest of Rs 267-1-9 was added. Exhibit A-17 is the interest katha of Messrs Thondepu Ramaswamy & Co. Exhibit A-16 is the katha at p. 41 of the day-book of Thondepu Ramaswamy & Co. The katha shows that on 21-8-1946 two balancing entries for interest of Rs 267-13-6 were made in the day-book. The entry on the right hand side has been scored out and Ramaswamy has not been able to explain why and under what circumstances the entry happens to be scored out. The entry on the left hand side however, was not scored out. The totals do not tally unless the sum of Rs 267-13-6 is included in the aggregate sum mentioned on the right hand side on p. 41. It has been commented on behalf of the defendants that Ramaswamy himself has no personal knowledge of the entries, that the clerks who made the entries in the account books have not been examined and that Exhibits A-13, A-14 and A-16 cannot be relied on in order to come to the conclusion that the transaction relating to 112 bales was a sale and only a sale. Though Ramaswamy was not present when the entries were made in the several registers of his firm, it is not disputed that the accounts have been maintained in the usual course of business.”

10. It is no doubt true that in para 28 while dealing with the question of price the trial court has observed: “Much reliance cannot be placed on the rate mentioned in Exhibits A-13 and A-14 and the price has to be determined independently having regard to the fact that the price of tobacco depreciates gradually with its age.” It will thus be seen that the trial court has not rejected these entries outright but only rejected them insofar as they were intended to establish the price agreed to be paid to the respondent firm. Dealing with this matter the High Court has observed thus:

“Exhibit A-13 is the entry in the day-book of Thondepu Ramaswami & Co. under date 5-6-1946 wherein a sum of Rs 14,098 is debited to the defendant firm in respect of 112 bales of tobacco weighing 28,196 pounds at 8 annas per pound. Though the figures ‘Rs 14,098' were written in a different ink from the rest of the entry, this is not a suspicious circumstance because the rest of the entry which is in the same ink and which is written in a normal manner contains reference to the sale of 28,196 pounds at 8 annas per pound. The resultant total is entered in the column on the right hand side as Rs 14,098. It may be that the figure of Rs 14,098 was entered a little later before the accounts for the day were closed. Exhibit A-14 is the corresponding ledger of Thondepu Ramaswamy & Co, and the entries in the day-book are duly incorporated in the ledger.”

Then later on the High Court has observed:

“At the same time the entries in the regularly kept books of the plaintiff firm cannot be thrown overboard particularly when no challenge was made of their genuiness.”

The High Court has also stated: “It is apparent from Exhibit A-23 that the defendant firm was shown to be a debtor not merely with respect to Rs 14,098 the price of 28,196 pounds but also in respect of the interest due upon the sum, and the plaintiff firm has paid income tax thereon.”

11. All this shows that for accepting the entries in toto the High Court has given certain reasons and even though we may not agree with them it cannot be said that there is any unusual circumstance which would warrant our reviewing afresh the evidence on the point as to whether the transaction in question was a sale or not.

12. Mr Ranganadham Chetty next contended that the courts below have not borne in mind the true significance of the words “no price” occurring in the entry relating to the 112 bales in question in the verification register Ex. A-28. The entry reads thus:

“5-6-46 For ll2 bales of Baru tobacce no price at Re 0-8-0 per pound ... 14,090-0-0.”

The entries were in Telugu and the actual words used are “ ” and according to Mr Ranganadham Chetty they mean that there was no sale. The courts below, however, which were conversant with the language, have understood the entry to mean “no price” and that is how the expression has been translated in the paper-book and it is not open to Mr Ranganadham Chetty to say that the meaning is otherwise than this. Mr Chetty then contended that even accepting that the meaning is only “no price” the proper inference to be drawn is that there was no transaction of sale and that the rate of 8 annas per pound stated in the entry is given merely for valuing the 112 bales. That may be so, but it does not negative the effect of the other entries which clearly point to the transaction being a sale. Some point was also sought to be made by Mr Ranganadham Chetty from the fact that no copy of the transport permit required to be taken for the transfer of excisable articles from one bonded warehouse to another was placed on record. We fail to see the significance of this because the appellant firm admits that 112 bales of tobacco were actually received by it from the respondent firm. It will thus be seen that there are no exceptional circumstances or unusual reasons which would induce us to re-examine the entire evidence on the point ourselves. We, therefore, decline to do so.

13. The next question is whether the suit was in proper form and was within time. Though the cause of action for the suit arose on June 5, 1946, it is admitted before us that the courts were closed on June 5, 1949 and the suit was filed on the day on which they reopened. It would, therefore, be within time if it was properly constituted on the date on which it was filed. In Jag Tarini Dasi v. Neba Gopal Chaki which is the leading case on the point was held by the Calcutta High Court that a court must authorise a Receiver sue in his own name and a Receiver who is authorised to sue though not expressly in his own name, may do so by virtue of his appointment with full power under Section 503 of the Code of Civil Procedure (Act XIV of 1882). In coming to this conclusion the learned Judges pointed out that the object and purpose of the appointment of a Receiver may be generally stated to be the preservation of the subject-matter of the litigation pending judicial determination of the rights of the parties and that it does not necessarily follow that if he is authorized to sue, he cannot sue in his own name. Then the learned Judge pointed out:

“Though he is in one sense a custodian of the property of the person whom in certain respects he is made to supplant, there seems to be reason why his power should not be held to be coextensive with the functions. It is clear that he cannot conveniently perform those functions, unless upon the theory that he has sufficient interest in the subject-matter committed to him, to enable him to sue in respect thereof by virtue of his office, in his own name.

On the whole, we are disposed to take the view that, although a receiver is not the assignee or beneficial owner of the property entrusted to the care, it is an incomplete and inaccurate statement of his relations to the property to say that he is merely its custodian. When a court has taken property into its own charge and custody for the purpose of administration in accordance with the ultimate rights of the parties to the litigation it is in custodia legis.

The title of the property for the time being, and for the purposes of the administration, may, in a sense, be said to be in the court. The receiver is appointed for the benefit of all concerned; he is the representative of the court, and of all parties interested in the litigation, wherein he appointed. He is the right arm of the court in exercising the jurisdiction invoked in such cases for administering the property; the court can only administer through a receiver. For this reason, all suits to collect obtain possession of the property must be prosecuted by the receiver, and the proceeds received and controlled by him alone. If the suit has to be nominally prosecuted in the name of the true owners of the property it is an inconvenient as well as useless form — inconvenient, because in many cases, the title of the owners may be the subject-matter of the litigation in which the receiver has been appointed — useless, because the true owners have no discretion as to the institution of the suit, no control over its management, and no right to the possession of the proceeds.” (p. 316-17).

Later the learned Judges pointed out, that for the time being and for the purpose of administration of the assets the real party interested in the litigation is the Receiver and, therefore, there is no reason why the suit could not be instituted in his own name. The learned Judges then referred to a number of cases in support of their conclusion. It seems to us that the view of the Calcutta High Court that a Receiver who is appointed with full powers to administer the property which is custodia legis or who is expressly authorised by the court to institute a suit for collection of the assets is entitled to institute a suit in his own name provided he does so in his capacity as a Receiver. If any property is in custodia legis the contesting parties cannot deal with it in any manner, and, therefore, there must be some authority competent to deal with it, in the interest of the parties themselves. A Receiver who is placed in charge of the property on behalf of a court can be the only appropriate person who could do so. His function cannot be limited merely to the preservation of the property and it is open to a court if occasion demands, to confer upon him the power to take such steps including institution of suits in the interest of the parties themselves. Here, apparently the Receiver was not a person with full powers but by its order dated June 26, 1949 the court authorised him to collect debts, particularly as some debts were liable to get barred by time. The Receiver, therefore, had the right to institute the suit in question. It is, however, contended that the order does not say specifically that he should institute a suit. In our opinion, the authority given to the Receiver “to collect the debts” is wide enough to empower the Receiver to take such legal steps as he thought necessary for collecting the debts including instituting a suit. The suit as originally instituted, was thus perfectly competent. The High Court has observed that even assuring that it would have been more appropriate for the Receiver to show in the cause title that it was the firm which was the real plaintiff and that the firm was suing through him it was merely a case of misdescription and that the plaint could be amended at any time for the purpose of showing the correct description of the plaintiff. We agree with the High Court that where there is a case of misdescription of parties it is open to the court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a case.

14. That brings us then to the third and the last point urged by Mr Ranganadham Chetty. According to him the High Court was in error in holding that the tobacco was agreed to be sold at 8 annas per pound and that the respondent firm was entitled to interest. The High Court has come to a conclusion different from that of the trial court, and therefore, we allowed the parties to take us through the evidence. It was said that once it is found that there was a contract of sale it must necessarily be held to be for a price and that price also must ordinarily be said to have been agreed upon when the contract was made. That may be so, but it would not be correct to say that it is an invariable rule that where a contract of sale has taken place a price must necessarily have been agreed upon. In this connection we may refer to sub-sections l and 2 of Section 9 of the Indian Sale of Goods Act, 1930 (3 of 1930) which run thus:

“(1) The price in a contract of sale may be fixed by the contract or may be left to be fixed in manner thereby agreed or may be determined by the course of dealing between the parties.

(2) Where the price is not determined in accordance with the foregoing provisions, the buyer shall pay the seller a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case.”

By enacting sub-section (2) the legislature has itself accepted the existence of contracts wherein price is not fixed as not an unusual phenomenon.

15. In the case before us, no doubt, the respondent firm has alleged that when the transaction was entered into, the parties fixed the price at 8 annas per pound. The trial court was not prepared to accept the testimony of PW 4 Ramaswamy, a partner of the firm, to the effect that the price was settled at 8 annas per pound when the contract was made. It also refused to place reliance upon Ex. A-14 which is an entry dated June 5, 1946 in the khata of the appellant firm.

The entry reads thus;

“Year, month and date 1946 Particulars Debit

June 5 Debit-Baru tobacco 112 bales

of a net wt. of 28,196 pounds

at Re 0-8-0 per pound

Total value ... 14,098-0-0”

As the trial court has pointed out the words “112 bales weighing 28,196 pounds at 8 annas per pound” appear to be written closely and that the sum of Rs14,098 appears to have been written in different ink. This entry is at the end of the page and if the words “112 bales weighing 28,196 pounds at 8 annas per pound” had been written contemporaneously there was no reason for writing them in a cramped style on the same page but rather on the next page. Then again if the figure of Rs 14,098 had been written contemporaneously it should have appeared in the same ink and not in a different ink. These circumstances, in our opinion, detract from the value of this entry and we would, therefore, be justified in accepting the opinion of the trial court on the point which had the original document before it rather than of the High Court. We may also refer to the verification register Ex. A-28 which has already been set out earlier. The fact that the words “no price” occur therein clearly suggests that no price had been agreed upon at the time of the transaction. Our conclusion is fortified by the circumstance that the amount stated is Rs 14,090 and not Rs 14,098 and besides the figure of Rs 14,090 is put in brackets. Had that been the price agreed upon it would not have been put in brackets. Another circumstance which makes the respondent firm's claim doubtful is that the institution of the suit was delayed till the last moment and even the notice of demand was made almost at the close of three years from the date of transaction. This suggests that no price had actually been agreed upon between the parties and the respondent firm was in a quandry as to what amount should be claimed by it from the appellant firm. Again, as has been rightly pointed out by the trial court the tobacco was at least 2 1/2 years old when it was purchased by the appellant firm and, therefore, its rate could not have been as high as 8 annas per pound which according to the evidence appear to be the rate for the tobacco of the year 1945. Further, the appellant firm had agreed to supply 1500 bales out of the 3000 bales with respect to which it had entered into a contract with the Russian Government at 8 annas per pound, as is clear from Ex. B-16, which is the telegram dated May 15, 1946 sent by the representative of the Russian Government to the appellant firm. So far as the remaining tobacco was concerned 1250 bales were to be of tobacco leaf and only 250 bales were to be of tobacco strips. No doubt so far as these strips were concerned the rate was to be Re 0-9-6 per pound. But as explained by the defendant in his evidence this was the price of first variety whereas the price of the second variety was 8 annas and the goods supplied by the respondent firm were intended to be tendered for the contract with respect to the second variety. Normally no businessman would do business unless there is some profit in his transactions. If the appellant firm had agreed to purchase the 112 bales in question at the rate of 8 annas per pound it would not only have not earned any profit by selling them to the Russian Government at the same rate but it would have incurred a loss because it had to incur the expenses for transporting the bales, first from the respondent firm's godown to its godown and then from there to Kakinada. It also had to incur labour charges as well as godown charges. In the circumstances it would not be reasonable to infer that the appellant firm had agreed to purchase the tobacco at 8 annas per pound. It was, however, said that where a person has to tender a large quantity of a commodity against a contract within a particular time and was in difficulties in procuring the commodity in sufficient quantities he would rather forego making any profit and would procure that commodity at an uneconomic price rather than commit a default and thus lay himself open to a claim for damages. We must bear in mind that the contract with the Russian Government was for delivery during the period “June-July”, that is to say, the goods had to be tendered from the beginning of June till the end of July. The contract with the respondent firm was entered into in the beginning of June. It is not shown that there was any dearth of tobacco strips of this particular variety in Guntur at that time nor even was a question put to Kurapati Vankata Mallayya in his cross-examination on the point. It would, therefore, be drawing a far-fetched inference if we were to say that the appellant firm was prepared to do business with respondent firm without earning any profit and in fact by incurring some loss. Finally we may mention that it was observed by the High Court that the Russians had agreed to buy tobacco at Re 0-8-6 per pound and, therefore, the appellant firm could still be making profit by purchasing tobacco from the respondent firm at 8 annas per pound. In this connection the High Court has referred to the evidence of K. Venkata Mallayya himself and Ex. A-31 which is a letter dated June 21, 1946 addressed by the representative of the Russian Government to the appellant firm. The High Court has, however, lost sight of the fact that Mallayya had stated in his evidence that two contracts had been entered into by the appellant firm with the Russian Government and that the rate of Re 0-8-6 per pound was fixed with reference to the other contract and not with reference to the contract towards which the tobacco supplied by the respondent firm was to be tendered. This answer was elicited by the respondent firm in cross-examination and we see no reason why it should not be accepted. The High Court has, however, made no reference whatsoever to this answer. Disagreeing with it we, therefore, hold that the respondent firm has failed to establish that the parties had agreed upon the rate at which the tobacco was sold when the contract was entered into and that rate was 8 annas per pound.

16. The question then is what would be the appropriate rate? The High Court has made a passing reference to the evidence or PW 1 Lolla Venkata Subrahmanyam, PW 2 Addagalla Rama Koteshwara Rao, and PW 3 Kathari Lingamurthi and observed: “Their evidence renders it probable that the price of tobacco sold by the plaintiff firm to the defendant firm might well have been fixed at 8 annas per pound.” PW 1 Venkata Subrahmanyam is a dealer in tobacco. He produced three invoices Exs. A-1, A-2, and A-3. Each of them refers to tobacco leaf. What he has stated is that the rate of tobacco strips is 2 1/2 annas per pound higher than that for tobacco leaf. It seems to us unsafe to deduce the price of tobacco strips from the price of tobacco leaf. Apart from that, the transactions referred to in the invoices are subsequent to that in suit. The witness has admitted that the price of tobacco varies from day to day and also that it varies from grade to grade. Bearing in mind these statements and also the circumstance that Exs: A-1 to A-3 do not show the grades of tobacco the evidence of this witness is of no assistance. The second witness, PW 2 Ramakoteswara Rao has merely produced one letter received from London Ex. A-4, credit note Ex. A-5 and two invoices Exs. A-6 and A-7. Apart from the fact that he has no personal knowledge of anything these documents would only show the price of tobacco which is sold to the merchants in London. It is an admitted fact that the tobacco which the Russians wanted to buy was cheap tobacco, that is, tobacco which was not acceptable by London tradeRs Therefore, neither the evidence of this witness nor the documents avail the respondent firm anything. PW 3 Lingamurty has produced two invoices both of which relate to transactions subsequent to the one in question before us and they do not disclose the grades of tobacco covered by the sales to which the invoices relate. Further, the invoices refer to the stock of 1945-46 whereas the tobacco sold by the respondent firm to the appellant firm was of 1944 or earlier stock. In the circumstances, this evidence has no relevance for the purpose of determining the price of the tobacco strips in question. PW 4 Ramaswamy in his evidence has referred to certain transactions entered into by him; but it is not clear from his evidence as to the age and grades of tobacco in those transactions. That evidence is thus vague and of little value. In the circumstances we hold that the evidence adduced on behalf of the respondent firm is inadequate for establishing the value of the tobacco strips sold by it to the appellant firm.

17. Just because of this the suit need not fail. For, the appellant firm has, by making an entry in its account books, admitted that the value of this tobacco is Rs 5639/3. The observations of the trial court on this point are as follows:

“As per Exhibit B-5, the 1st defendant credited the suit firm with a sum of Rs 5639-3-0 for the value of 112 bales of tobacco at Rs 100 per candy of 500 pounds. In Exhibit B-10, a candy of 500 pounds was valued at Rs 67-8-0. If the tobacco sold by the suit firm to the first defendant firm corresponded to the quality of tobacco in respect of which the invoices Exhibits B-10 and B-12 were issued, there would have been no difficulty in the suit firm securing local customers and the stock of tobacco with the suit firm need not have remained idle from January 1944 till June 1946. Having regard to the fact that the tobacco which was sold by the suit firm to the 1st defendant firm was about 3 years old, the price of Rs 100 which was noted in Ex. B-5 appears to be a reasonable price.”

18. We agree with what the trial court has said that the price payable to the respondent firm in respect of the tobacco strips would be Rs 5639/3/. As regards interest, apart from the evidence of Ramaswamy — PW4, there is no other evidence on record to show that the parties had agreed that it should be payable in default of payment of the price within 1½ months of delivery. As we have not accepted his evidence to the effect that the price had been settled when the transaction had been entered into, we cannot possibly accept his further statement that interest was agreed upon at that time. No custom or trade usage under which interest could be claimed has been established but under Section 61 of the Sale of Goods Act the respondent is entitled to interest at 61 per cent per annum from the date of the transaction to the date of suit. We further award interest to the respondent firm at 6 percent per annum from the date of suit till realisation.

19. Accordingly we set aside the decree of the High Court, allow the appeal in part and pass a decree in favour of the respondent firm for Rs 5639-3 with interest at 6 per cent per annum from the date of the transaction till realisation. The respondent firm will get proportionate costs throughout from the appellant firm, which would bear its own costs.