Decided on September 20,1995

Nand Kishore Goenka Appellant
Flexo Pack And Ors. Respondents


Nikhil Nath Bhattacharjee, J. - (1.)This is a suit for recovery of Rs 4,35,672.66 p. along with interim interest and interest on judgment at the rate of 18% per annum on account of price of goods sold and delivered but not fully paid.
(2.)Plaintiff carried on the business of manufacture and sale of polythene and poly-poplene tubes under the name and style of Indo-plastic' and the defendant No. 1 was a firm and defendants Nos. 2, 3 & 4 were its partners. During the pendency of the suit defendant No. 4 died and substitution was not considered necessary. Plaintiff's case is that between the period 25th April 1985 and 9th June, 1986 plaintiff sold and delivered to the defendants 21,624 450 kgs. of polythene tubes on diverse dates valued at Rs. 5,21,295.10 p. particulars whereof being apparent from the schedule-A annexed to the plaint. At the time of delivery of the said goods the plaintiff is said to have submitted to the defendants chalans of each and every consignment, which were accepted by or on behalf of the defendants. Bills were raised with copies of the receipted chalans and the defendants also accepted the same. So far the defendants have paid only Rs. 2,20.000.00 by cheques on different dates, the last of such payment of Rs. 10,000.00 having been made on 8th Sept., 1986. The defendants allegedly issued two cheques dated 6th Feb., 1989 and 30th Jan., 1989 for Rs. 55,000.00and Rs. 45.000.00 respectively by way of further payment. The cheques were, however, dishonoured by the Banker of the defendants. Thus the defendants are liable and the plaintiff is entitled to recover from the defendant the balance of the price amounting to Rs. 3,01,295.10p. The plaintiff has claimed interest on the said sum of Rs. 3,01.295.10 p. from the respective dates of delivery until realisation at the rate of 18% per annum being the rate of interest which is charged by the nationalised Banks in respect of commercial transactions. Such interest calculated upto 25th Feb., 1989 amounts to Rs. 1,34,377.56p. As in spite of demand the defendants failed and neglected to pay the said principal and interest to the plaintiff the present suit for recovery of the amount had to be instituted.
(3.)The defendant's case is that the partnership between defendant Nos. 2 to 4 was dissolved by a deed of dissolution dated 24th Feb., 1989, in terms whereof the defendant No. 2 became the sole proprietor of the defendant No. 1 since the said date and that the suit filed on 9th of March of 1989 is bad in law as the firm was not in existence on that date. However, the defendant admits that the partnership firm had dealings and transanctions with the plaintiff from April 1986 till 18th Feb., 1986 during which period plaintiff sold and delivered to the defendants 12504 300 kgs. of polythene tubes valued at Rs. 2,95,776.50 p. as fully set out in annexure A to the written statement. It has been alleged that out of the said sum the defendants paid the sum of Rs. 2,30,000.00 only by account payee cheques. The defendant admits that Rs. 65,776,50 p. is still due and payable by the defendant to the plaintiff. The defendant has further alleged that defendant No. 5 accounts with the Central Bank of India, Hatkhola Branch was last operated on 11th April, 1981. However, the defendant deposited with the plaintiff two blank cheques on the said Branch duly signed by the defendant and the plaintiff presented the said two cheques filling in big amounts and name and date for payment falsely. But since the account was dormant the cheques could not be honoured by the Bank. Thus issuance of two cheques dated 6th Feb., 1989 and 30th Jan., 1989 for a sum of Rs. 45,000.00 and 55,000.00 respectively by way of further payment does not arise, is also defendant's case.

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