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2003 DIGILAW 263 (CAL)

CHEMICO PROCESS COMPANY v. ACMECHEM PVT. LIMITED

2003-05-23

ASIT KUMAR BISI

body2003
A. K. BISI, J. ( 1 ) THE plaintiff Chemico Process Company instituted the instant suit claiming decree for Rs. 13,24,940/-, interim interest, interest on judgment and costs against the defendant Acmechem (Pvt.) Ltd. ( 2 ) BRIEFLY the case of the plaintiff may be narrated thus. Pursuant to the order placed by the defendant and/or the request made by the defendant, the plaintiff from time to time on diverse dates sold and delivered to the defendant various plants, machinery and equipments, the price of the same being Rs. 30,40,960/ -. The plaintiff requested the defendant to furnish Central Sales Tax Declaration Forms and also to pay the sales tax payable for sale of the said goods. The defendant accepted the said goods. The plaintiff duly prepared bills for the price of the materials sold and delivered and submitted the same to the defendant. The defendant represented to the plaintiff that since the defendant was registered with the Gujarat State Commercial Tax Authorities, the plaintiff should charge from them 4% Central Sales Tax on goods sold and delivered to them instead of 10% of sales tax. The defendant further held out that they would furnish the requisite sales tax declaration forms for availing of such concessional rates of 4% instead of 10%. In spite of repeated demands, the defendant has failed and neglected to furnish the plaintiff with the sales tax declaration forms for balance 6% sales tax payable by the defendant. The plaintiff is claiming Rs. 1,75,440/- on account of the balance 6% sales tax. The defendant from time to time made various part payments to the plaintiff. After taking into account all the part payments made by the defendant, the last of which being made on 10th August, 1994 and after giving credit to the defendant for the said part payments, the sum of Rs. 7,76,714/- is now due and payable by the defendant to the plaintiff on account of balance of price of the goods sold and delivered. The plaintiff is entitled to claim interest on the said sum of Rs. 7,76,714/- at the rate of 18% per annum from 2nd December, 1994. The total sum of Rs. 7,76,714/- is now due and payable by the defendant to the plaintiff on account of balance of price of the goods sold and delivered. The plaintiff is entitled to claim interest on the said sum of Rs. 7,76,714/- at the rate of 18% per annum from 2nd December, 1994. The total sum of Rs. 13,24,940/- inclusive of interest at the rate of 18% per annum from 2nd December, 1994 to 9th August, 1997 and the amount due on account of sales tax as stated above is now due and payable by the defendant to the plaintiff. Particulars of the said claim have been set out in paragraph 14 of the plaint. By the letter dated 2nd December, 1994 the defendant acknowledged in writing its liability in respect of the dues of the plaintiff on account of the equipments sold and delivered by the defendant to the plaintiff as per order of the defendant and promised to settle the same. But the defendant failed and neglected to settle the claim of the plaintiff. ( 3 ) THE defendant has contested the suit by filing the written statement wherein the material allegations contained in the plaint have been denied. It has been alleged by the defendant in the written statement that the plaintiff has no cause of action against the defendant and that the suit is barred by limitation. The case of the contesting defendant, inter alia, is that the alleged claims of the plaintiff are wholly contradictory and inconsistent in terms and cannot be reconciled and such contradictory and inconsistent claims of the plaintiff cannot be entertained. The letter dated 2nd December, 1994 disclosed by the plaintiff does not and cannot amount to an acknowledgment of jural relationship by the defendant. The plaintiff has failed to establish the acknowledgment of any jural relationship by the defendant within the period of limitation. It has been denied by the defendant that a sum of Rs. 7,76,714/- would remain or is due and payable by the defendant to the plaintiff on account of balance of price of the plant, machinery and equipments sold by it, as alleged. Further case of the defendant is that the alleged particulars in annexure 'c' to the plaint are not true or correct reflection of the particulars of dealings and transactions by and between the parties and as such no reliance can or should be placed on the same. Further case of the defendant is that the alleged particulars in annexure 'c' to the plaint are not true or correct reflection of the particulars of dealings and transactions by and between the parties and as such no reliance can or should be placed on the same. It is denied by the defendant that the plaintiff is entitled to or can claim interest on the said sum of Rs. 7,76,714/- or on any part or portion thereof or on any sum whatsoever. It is denied by the defendant that a sum of Rs. 13,24,940/- or any part or portion thereof or any sum whatsoever is due and payable by the defendant to the plaintiff as alleged. It has been averred by the defendant that the dues of the plaintiff were fully and finally settled by the defendant by payments made as per bills of the plaintiff and the plaintiff can have no further claim against the defendant. The suit has been filed with malafide intent and/or an ulterior motive of attempting to make an unlawful gain. ( 4 ) THE following issues have been framed for the purpose of trial of the suit: (1)is the suit barred by limitation? (2)are the defendants liable to pay to the plaintiff the sum of Rs. 13,24,940/- on account of balance price of the goods sold and delivered as alleged in the plaint? (3)is the plaintiff entitled to get decree for the sum of Rs. 13,24,940/- against the defendant as prayed for? (4)to what other relief, if any, is the plaintiff entitled? ( 5 ) ISSUE No. 1: mr. Pijush Dutta the learned senior advocate for the defendant has contended that the ground upon which exemption from the law of limitation is claimed is required to be stated in the plaint in terms of Order 7 Rule 6 of the Code of Civil Procedure hereinafter referred to as the Code. He has pointed out that last payment was made by the defendant to the plaintiff on 10. 8. 94 as per statement of accounts copy of which is annexure 'c' to the plaint whereas the plaint was presented before the learned Master on 13. 8. 97 on which date it was admitted. He has drawn my attention to paragraph 17 of the plaint and contended that no such ground on which exemption from the law of limitation can be claimed is mentioned therein. 8. 97 on which date it was admitted. He has drawn my attention to paragraph 17 of the plaint and contended that no such ground on which exemption from the law of limitation can be claimed is mentioned therein. To refute the above contention Mr. Hiranmoy Dutta the learned senior advocate for the plaintiff has pointed out that the ground upon which exemption from the law of limitation has been prayed for has been specifically stated in paragraph 15 of the plaint wherein it has been averred that by the letter dated 2nd December, 1994 the defendant acknowledged in writing signed by the defendant or by its agent duly authorised in this behalf, its liability in respect of the dues of the plaintiff on account of the equipments sold and delivered by the plaintiff to the defendant as per order of the defendant and promised to settle the same. He has relied on sub-section (1) of section 18 of the Limitation Act, 1963 which lays down, inter alia, that where before the expiration of the prescribed period for a suit in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. AS contended by the learned senior advocate for the plaintiff, the letter dated 2. 12. 94 copy of which is marked as Exhibit 'k' can well be treated as an acknowledgment of liability in writing signed by the defendant. The learned senior advocate for the defendant, on the other hand, has raised dispute over the matter and urged that the said letter dated 2. 12. 94 cannot be treated as acknowledgement of present subsisting liability of the defendant. IT is settled law that the statement on which the plea of acknowledgement is founded must relate to a present subsisting liability and indicate the existence of jural relationship between the parties. 12. 94 cannot be treated as acknowledgement of present subsisting liability of the defendant. IT is settled law that the statement on which the plea of acknowledgement is founded must relate to a present subsisting liability and indicate the existence of jural relationship between the parties. In M/s. Lakshmiratan Cotton Mills v. The Aluminium Corporation of India, reported in AIR 1971 Supreme Court 1482 at page 1485 (para 11) the Supreme Court observed as follows: ?it is clear that the statement on which the plea of acknowledgement is founded must relate to a subsisting liability as the section requires that it must be made before the expiration of the period prescribed under the Act. It need not, however, amount to a promise to pay, for an acknowledgement does not create a new right of action but merely extends the period of limitation. The statement need not indicate the exact nature or the specific character of the liability. The words used in the statement in question, however, must relate to a present subsisting liability and indicate the existence of jural relationship between the parties, such as, for instance, that of a debtor and a creditor, and the intention to admit such jural relationship. Such an intention need not be in express terms and can be inferred by implication from the nature of the admission and the surrounding circumstances. ? let me now closely look at the contents of the letter 2. 12. 94 copy of which is marked as Exhibit 'k'. In para 4 of he said letter the defendant has complained of undue delay in execution of work entrusted by them to the plaintiff. It has been admitted by the defendant in the said letter that they would compensate the plaintiff on the basis of fabrication charges including consumables based on stainless steel and mild steel plates used in the equipments. Paragraph 5 of the said letter indicates in clear terms that the defendant requested the plaintiff to furnish full details of bill of materials for each individual machine supplied by the plaintiff to them with copy of the relevant purchase bills of the plaintiff and that after sending these details the plaintiff should call upon them for immediate settlement of the issue for good. Paragraph 6 of the said letter glaringly reveals that the defendant promised to handover sales tax declaration forms to the authorised representative of the plaintiff as soon as the matter would be settled and final prices of equipments are arrived at amicably. Thus it is abundantly clear from the contents of the said letter dated 2. 12. 94 copy of which is marked as Exhibit 'k' that by the said letter the defendant has admitted its subsisting liability with regard to price of the equipments which is required to be settled. It has rightly been argued by Mr. Hiranmoy Dutta the learned senior advocate for the plaintiff that the question arises in respect of which dispute or differences the settlement is to be arrived at and the answer to that question is that the settlement is to be arrived at in respect of subsisting liability of the defendant with regard to the work executed by the plaintiff as well as for supply of consumable materials. It can scarcely be doubted that the words used in the letter dated 2. 12. 94 copy of which is marked as Exhibit 'k' relate to a present subsisting liability of the defendant and indicate the existence of jural relationship between the parties and the intention to admit such jural relationship. The ratio of the decision of the Supreme Court in the case of M/s. Lakshmiratan Cotton Mills (supra) applies to the instant suit in this regard. MR. Pijush Dutta the learned senior advocate for the defendant has cited the case of Debji Ghelabhai and Brothers v. R. D. Mehta and Co. , reported in AIR 1935 Calcutta 255 wherein at page 256 it had been held that where the letter or the document relied upon expressly stated that there was no liability and the liability was in fact denied and repudiated it could not be said that limitation was extended under section 19 of the Indian Limitation At, 1908. In the case of Debji Ghelabhai and Brothers (supra) in the letter in question the defendant stated that he was under no liability for the price of the 800 pieces of rejected sleepers and accordingly it was held that the claim of he plaintiff for the price thereof was barred by time. Such is not the case here. In the case of Debji Ghelabhai and Brothers (supra) in the letter in question the defendant stated that he was under no liability for the price of the 800 pieces of rejected sleepers and accordingly it was held that the claim of he plaintiff for the price thereof was barred by time. Such is not the case here. In the instant case there is no denial of liability, rather in the said letter copy of which is marked as Exhibit 'k' the defendant admits its subsisting liability which is to be settled for good. So the said letter dated 2. 12. 94 can well be treated as acknowledgement of subsisting liability in writing signed by the defendant and the fresh period of limitation commence from the date of the said letter. FOR the foregoing reasons I find that the suit is not at all barred by limitation. THIS issue decided accordingly in favour of the plaintiff. ( 6 ) ISSUE Nos. 2, 3 and 4:being interlined all these issues are taken up together for consideration for the sake of convenience and brevity. NO evidence, oral or documentary, has been adduced on behalf of the defendant to disprove the case of the plaintiff PW 2 Subal Kumar Basu who is one of the partners of the plaintiff Chemico Process Company has come to prove the case of the plaintiff, Mr. Pijush Dutta the learned senior advocate for the defendant has contended at the outset that though the plaintiff firm has been described as a registered partnership firm in the cause title of the plaint, no evidence has been led by the plaintiff to prove that it is a registered firm. To refute this contention Mr. Hiranmoy Dutta the learned senior advocate for the plaintiff has drawn my attention to the fact that nowhere in the four corners of the written statement the defendant has denied or disputed the fact as alleged in the plaint that the plaintiff firm is a registered firm and as such no issue has been raised or settled as to whether or not the plaintiff firm is a registered firm. He has further pointed out that the defendant never suggested that an issue should be raised on the question of registration of the plaintiff firm. He has further pointed out that the defendant never suggested that an issue should be raised on the question of registration of the plaintiff firm. He has drawn my attention to Order 8 Rule 5 Sub-rule 1 of the Code which lays down that every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant shall be taken to be admitted except as against a person under disability. He has also drawn my attention to Order 14 Rule 1 (1) of the Code which provides that issues arise when a material proposition of a fact or law is affirmed by one party and denied by the other. As mentioned hereinabove, in the written statement filed by the defendant there is no denial of the fact that the plaintiff firm is a registered firm and as such no issue has been framed or settled on the question as to whether the plaintiff firm is a registered firm. In the cause title of the plaint the plaintiff firm has specifically been described as a registered partnership firm. It is needless to point out in this context that as per Order 7 Rule 1 of the Code the plaint must contain the particulars as enumerated therein including the name, description and place of residence of the plaintiff. Since the plaintiff has been specifically described as a registered partnership firm and there is no dispute or denial of the said fact in the written statement, it would be fruitless to argue on behalf of the defendant that there is no evidence to prove that the plaintiff is a registered partnership firm. That apart, Mr. Hiranmoy Dutta the learned senior advocate for the plaintiff has pertinently drawn my attention to the relevant part of the evidence of PW 2 Subal Kumar Bose, one of the partners of the plaintiff firm, who has specifically stated that the plaintiff is a registered partnership firm and the registration certificate is with them. The answers given by PW 2 to question Nos. 82, 83 and 84 put in cross-examination can be referred to in this context. Neither the plaintiff was called upon by the defendant to produce the registration certificate nor there is any specific suggestion put to PW 2 in cross-examination that the plaintiff is not a registered firm. The answers given by PW 2 to question Nos. 82, 83 and 84 put in cross-examination can be referred to in this context. Neither the plaintiff was called upon by the defendant to produce the registration certificate nor there is any specific suggestion put to PW 2 in cross-examination that the plaintiff is not a registered firm. In the circumstances the testimony of PW 2 with regard to registration of the plaintiff firm can in no way be disputed or disbelieved. ( 7 ) IN support of the claim the plaintiff has relied on the following documents which have been duly proved by PW 2: (I)the agreement dated 5th August, 1992 marked as Exhibit 'd'. (ii)the defendant's letter dated 14. 9. 1992 marked as Exhibit 'c'. (iii)the plaintiff's letter dated 9. 7. 1993 marked as Exhibit 'g'. (iv)the defendant's letter dated 15. 7. 1993 marked as Exhibit 'h'. (v)the invoices marked as Exhibit 'l' collectively. (vi)the plaintiff's letter dated 18. 11. 1994 with annexure marked as Exhibit 'i'. (vii)the plaintiff's letter dated 30. 11. 1994 marked as Exhibit 'j'. (viii)the defendant's letter dated 2. 12. 1994 marked as Exhibit 'k'. ( 8 ) MR. Hiranmoy Dutta the learned senior advocate for the plaintiff has referred to the relevant parts of the evidence of PW 2 Subal Kumar Bose wherefrom it is quite evident that the plaintiff company sold and delivered to the defendant various plants, machinery and equipments. In answer to question No. 39 PW 2 has specifically stated that as per agreement executed by them and the defendant Acme Chem Pvt. Ltd. for supply of technical consultancy and drawings they completed supply of all documents, drawings in time and against the order received by them from the defendant regarding supply of equipments they supplied all equipments to the defendant and also supervised both erection and commissioning at site till performance test as per the agreement and order. The answers given by PW 2 with regard to question Nos. 40, 41 and 42 clearly reveal that they submitted their invoices both for supply of technical consultancy and supply of equipments and only after completion of erection, commissioning and successful test running, the asked for balance payment. The materials on record glaringly reveal that the amount claimed by the plaintiff on account of balance of price of the goods sold and delivered is Rs. The materials on record glaringly reveal that the amount claimed by the plaintiff on account of balance of price of the goods sold and delivered is Rs. 7,76,714/-, the interest claimed at the rate of 18% per annum from 2nd December, 1994 to 9th August, 1997 amounts to Rs. 3,72,822/- and the amount due on account of sales tax as claimed by the plaintiff is Rs. 1,75,440/ -. As per claim of the plaintiff the total outstanding dues payable by the defendant to the plaintiff amount to Rs. 13,24,940/ -. ( 9 ) THE defendant has not disclosed any document nor any witness has been produced on behalf of the defendant to disprove the case of the plaintiff. It has been alleged by the defendant in paragraph 10 of the written statement that the dues of the plaintiff were fully and finally settled by payments made by the defendant. But no attempt whatsoever has been made by the defendant to establish such plea raised in the written statement. ( 10 ) MR. Pijush Dutta the learned senior advocate for the defendant has contended that the parties entered into works contract and as such sales tax was not payable. But in the written statement and also in various correspondence made by the defendant it has been admitted that the plaintiff supplied plants, machineries and equipments to the defendant. From the materials on record it is abundantly clear that the defendant received the invoices marked as Exhibit 'l' collectively for supply of the goods and some payments were made by the defendant for supply of such goods. On the face of such materials on record it is preposterous to hold that the parties entered into works contract and as such sales tax was not payable. The evidence adduced on behalf of the plaintiff unmistakably points out that there was contract for supply of plants, machinery and equipments in terms of which those goods were supplied by the defendant to the plaintiff. It has rightly been pointed out by Mr. Hiranmoy Dutta the learned senior advocate for the plaintiff that the defendant did not adduce any evidence in support of the cross-examination made and in the course of cross-examination an endeavour has been made to make out a new case which has not been pleaded in the written statement. It has rightly been pointed out by Mr. Hiranmoy Dutta the learned senior advocate for the plaintiff that the defendant did not adduce any evidence in support of the cross-examination made and in the course of cross-examination an endeavour has been made to make out a new case which has not been pleaded in the written statement. He has cited the case of A. E. G. Carapiet v. A. Y. Derderian reported in AIR 1961 Calcutta 359 wherein at page 362 (para 10) the Division Bench of this Court observed as follows:the law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not disputed at all. It is wrong to think this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. ? ( 11 ) THE decision of a case, as held by the Supreme Court in M/s. Trojan and Co. v. RM. N. N. Nagappa Chattiar reported in AIR 1953 Supreme Court 235 at page 240 (para 22), cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. ( 12 ) IT is settled law that the Court cannot on failure of the defendant to prove his case as pleaded in the written statement make out a new case for him which is not only not made in the written statement but which is wholly inconsistent with the title set up by the defendant. It has been so held by the Supreme Court in the case of Sheodhari Rai and Ors. v. Suraj Prasad Singh and Ors. , reported in AIR 1954 Supreme Court 758. ( 13 ) IN Ram Sarup Gupta v. Bishnu Narain Inter College and Ors. It has been so held by the Supreme Court in the case of Sheodhari Rai and Ors. v. Suraj Prasad Singh and Ors. , reported in AIR 1954 Supreme Court 758. ( 13 ) IN Ram Sarup Gupta v. Bishnu Narain Inter College and Ors. reported in AIR 1987 Supreme Court 1242 at page 1246-1247 (para 6) the Supreme Court observed as follows:it is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. ? ( 14 ) MR. Pijush Dutta the learned senior advocate for the defendant has contended that the evidence adduced by the witness examined on behalf of the plaintiff should not be considered as the same has violated the provisions of Order 18 Rule 4 of the Code as amended which provides inter alia that examination-in-Chief of a witness shall be given by affidavit. Rule 4 of Order 18 of the Code has been substituted by way of amendment and sub-rule (1) thereof provides that in every case, the evidence of a witness of his examination-in-Chief shall be given by affidavit and copies thereof shall be supplied to the opposite parties by the party who calls him for evidence. He has cited the case of Salem Advocate Bar Association, T. N. v. Union of India reported in (2003)1 Supreme Court Cases 49 wherein at page 57 (para 17) the Supreme Court has observed as follows:in Order 18, Rule 4 has been substituted and sub-rule (1) provides that in every case Examination-in-Chief of the witnesses shall be on affidavits and copies thereof shall be supplied to the opposite parties by the party who calls them for evidence. It was contended by Mr. Vaidyanathan that it may not be possible for the party calling the witness to compel the witness to file an affidavit. It often happens that the witness may not be under the control of the party who wants to rely upon his evidence and that witness may have to be summoned through Court. Order 16 Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in Court for recording their evidence. It often happens that the witness may not be under the control of the party who wants to rely upon his evidence and that witness may have to be summoned through Court. Order 16 Rule 1 provides for list of witnesses being filed and summons being issued to them for being present in Court for recording their evidence. Rule 1a, on the other hand, refers to production of witnesses without summons where any party to the suit may bring any witness to give any evidence or to produce documents. Reading the provisions of Order 16 and Order 18 together, it appears to us that Order 18 Rule 4 (1) will necessarily apply to a case contemplated by Order 16 Rule 1a i. e. where any party to a suit, without applying for summoning under Rule 1 brings any witness to give evidence or produce any document. In such a case, Examination-in-Chief is not to be recorded in Court but shall be in the form of an affidavit. ? ( 15 ) MR. Hiranmoy Dutta the learned senior advocate for the plaintiff has drawn my attention to section 129 of the Code which clearly lays down that notwithstanding anything contained in this Code, any High Court may make such rules not inconsistent with the letters patent or order or other law establishing it to regulate its own procedure in the exercise of its original Civil Jurisdiction as it shall think fit, and nothing herein contained shall affect the validity of any such rules in force at the commencement of this Code. Chapter XIV of the Rules of the High Court at Calcutta on the Original Side deals with proceedings at the hearing of suits and Rule 1 specifically provides inter alia that the evidence of each witness shall be taken down by or in the presence and under the superintendence of the Judge or one of the Judges and such evidence shall be taken ordinarily in a narrative form when in long hand, and in the form of question answer when in shorthand, by such officers of the Court as may be appointed for the purpose, and shall form part of the record. He has argued that Order 18 Rule 4 of the Code as amended does not apply to hearing of suits on the original side of the High Court. He has argued that Order 18 Rule 4 of the Code as amended does not apply to hearing of suits on the original side of the High Court. It appears that rule 1 of Chapter XIV of the Rules of the High Court at Calcutta on the Original Side has not yet been amended in terms of sub-rule (1) of Rule 4 of Order 18 of the Code and as such the said rule as framed by this Court will prevail unless the same is suitably amended. There as no occasion for the Supreme Court to consider the said Rule 1 of Chapter XIV of the Rules of the High Court at Calcutta on the Original Side and also section 129 of the Code as mentioned hereinabove in the case of Salem Advocate Bar Association, T. N. (supra ). So the above argument advanced by Mr. Hiranmoy Dutta on behalf of the plaintiff has got considerable force in view of section 129 of the Code and Rule 1 of Chapter XIV of the Rules of the High Court at Calcutta on the Original Side as mentioned earlier. ( 16 ) IT has next been urged by Mr. Hiranmoy Dutta the learned senior advocate on behalf of the plaintiff that the learned senior advocate for the defendant took the opportunity of cross-examining the plaintiff's witness after the said witness was examined-in-chief in the manner as laid down in Rule 1 of Chapter XIV of the Rules of the High Court at Calcutta on the Original Side and at that time he did not raise any plea regarding non-compliance with the provision of Order 18 Rule 4 of the Code which was subsequently taken during his argument. He has further urged that the defendant should not be permitted to take an off chance to succeed and then to turn back and contend that the deposition of the plaintiff's witness should not be taken into consideration when it is found that the outcome of cross-examination is not to their liking. He has further urged that the defendant should not be permitted to take an off chance to succeed and then to turn back and contend that the deposition of the plaintiff's witness should not be taken into consideration when it is found that the outcome of cross-examination is not to their liking. It has been rightly contended by him that neither in the case of Salem Advocate Bar Association, T. N. (supra) nor in Order 18 Rule 4 sub-rule (1) of the Code as amended it has been laid down that if affidavit is not filed, this Court cannot take into consideration the deposition that has been recorded after administering oath to the witness concerned in presence of this Court. ( 17 ) IN United Bank of India v. Naresh Kumar and Ors. , (1996)6 Supreme Court Cases 660 at page 663 (para 9) the Supreme Court has laid down that procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause and there is sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just cause. The Supreme Court has further held that as far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. ( 18 ) HAVING regard to the principles of law enunciated above I am clearly of the view that the contention raised by Mr. Pijush Dutta the learned senior advocate for the defendant challenging legality of examination-in-chief of the witness for the plaintiff is not at all sustainable. ( 19 ) FROM all that has been stated above it can well be held that on the facts proved in evidence the claim of the plaintiff has been substantiated. However, it appears that the plaintiff has claimed interest at the rate of 18% per annum from 2nd December, 1994 to 9th August, 1997 and such interest was claimed on the sum of Rs. 7,76,714/- which was due on account of balance of price of the goods sold and delivered by the plaintiff to the defendant. However, it appears that the plaintiff has claimed interest at the rate of 18% per annum from 2nd December, 1994 to 9th August, 1997 and such interest was claimed on the sum of Rs. 7,76,714/- which was due on account of balance of price of the goods sold and delivered by the plaintiff to the defendant. In my view such rate of interest as claimed by the plaintiff at the rate of 18% per annum for the above mentioned period should be reduced to 9% per annum to meet the ends of justice and if calculated at the rate of 9% per annum, the amount of interest will be Rs. 1,86,411/ -. Thus I find that the plaintiff is entitled to get decree for the sum of Rs. 11,38,565/- (Rs. 7,76,714/- on account of balance of price of the goods sold and delivered + Rs. 1,86,411/- being the interest at the rate of 9% per annum from 2nd December, 1994 to 9th August, 1997 + Rs. 1,75,440/- being the amount due on account of sales tax) along with costs of the suit against the defendant. In view of the facts and circumstances of the suit and in view of the fact that prior to institution of the suit some part payments were made by the defendant to the plaintiff out of the total price of the goods sold and delivered I am disinclined to grant interim interest from the date of institution of the suit till the date of decree as claimed by the plaintiff. The plaintiff is, however, entitled to get interest at the rate of 9% per annum on the principal sum of Rs. 7,76,714/- from the date of the decree till recovery of the dues against the defendant. ( 20 ) ALL these issues are accordingly decided in favour of the plaintiff. Court fees paid are sufficient. The suit is decreed with costs against the defendant. The plaintiff will get decree for Rs. 11,38,565/- along with costs against the defendant. The plaintiff will get interest at the rate of 9% per annum on the principal sum of Rs. 7,76,714/- from the date of the decree till recovery of the dues against the defendant. Decree be drawn up as expeditiously as possible. Suit decreed