C. Y. SOMAYAJULU, J. ( 1 ) THIS is an appeal by the plaintiff who filed the suit for recovery of the amount sent by it to the defendants as advance for purchase of machinery, consequent on the breach of contract allegedly committed by the defendants. The case, in brief, of the appellant is that respondents 2 to 5 who are partners of the first respondent agreed to supply W. S. T. Draftings for eleven ring spinning frames of 440 spindles each within the time stipulated and received the entire sale consideration of rs. 1,40,937-50ps. by way of telegraphic transfer but had supplied only two ring frames of 440 spindles each in April 1979. After prolonged correspondence they supplied two more ring frames consisting of 692 spindles, instead of 880 spindles in july 1979 and one poor and inferior quality set of 440 spindles in November 1979 and failed to supply the balance quantity in spite of repeated demands and so it was obliged to purchase the remaining quantity from another supplier. So respondents are bound to return Rs. 82,352-73ps. , kept with them with interest apart from the loss of rs. 61, 455/- incurred by it due to the breach of contract committed by the respondents. ( 2 ) 2nd respondent filed written statement on behalf of 1st respondent contending inter alia that the Trial Court has no territorial jurisdiction to try the suit and that it is a proprietary concern in which Respondents 3 to 5 have no interest and that it did not commit any breach of contract and since the appellant refused to take the amount tendered by him and since he had to make several trips and had to spend Rs. 7,562-20ps. , they are not liable to pay any damages. ( 3 ) 3rd respondent filed a written statement, which was adopted by respondents 4 and 5, contending inter alia that they are not the partners of the first respondent, which, in fact, a sole proprietary concern of which the 2nd respondent is proprietor and so they are not liable to pay any amount to the appellant ( 4 ) ON the basis of the above pleadings, the Trial Court framed nine issues and three additional issues for trial. On its behalf appellant examined two witnesses as P. Ws. 1 and 2 and marked Exs. A to a21. On its behalf appellant examined two witnesses as P. Ws. 1 and 2 and marked Exs. A to a21. On behalf of Respondents 1and 2, 2nd respondent examined himself as D. W. 1 and marked Exs. Bl to B7. No evidence either oral or documentary was adduced on behalf of Respondents 3 to 5. After considering the evidence on record, the trial Court held on Issue 1, which relates to its jurisdiction, that it has jurisdiction to try the suit. On additional Issues 1 and 2 which relate to the question whether first respondent is a partnership-firm and if 2nd respondent is the Managing Partner and respondents 3 to 5 are partners therein or, if it is the sole proprietary concern of the 2nd respondent, held that appellant failed to prove that first respondent is a firm and that respondents 3 to 5 are partners therein, on issue 2 relating to the value of the goods supplied to the appellant by the 1st appellant, held their value to be Rs. 58,589. 44 Ps. , on issue 3 which relates to the amount allegedly spent by 2nd respondent and if he is entitled to claim reimbursement of that amount from the appellant, that respondents 1 and 2 are not entitled to reimbursement of the amount spent by 2nd respondent, on issues 6 and 7 relating to the entitlement of the appellant to claim damages and interest on the balance due, held that appellant is not entitled to any damages or interest, on additional Issue 3 whether the interest claimed is usurious, held that appellant is entitled interest at 12% per annum. On issue 5 relating to the liability of Respondents 1 and 2 to pay Rs. 6,436,33 Ps. , towards short supply of goods, held against the appellant. On Issue 8 relating to the amount to which the appellant is entitled to, held that appellant is entitled to Rs. 82,348-00 Ps. , from Respondents 1 and 2 and consequently on Issue 9 relating to relief, passed a decree for Rs. 1,09,111-16 Ps. , in favour of the appellant against Respondents 1 and 2 with interest @ 12% per annum on Rs. 82,348/- from the date of suit till date of payment with proportionate costs and dismissed the rest of the claim with proportionate costs and dismissed the suit against the respondents 3 to 5 without costs. 1,09,111-16 Ps. , in favour of the appellant against Respondents 1 and 2 with interest @ 12% per annum on Rs. 82,348/- from the date of suit till date of payment with proportionate costs and dismissed the rest of the claim with proportionate costs and dismissed the suit against the respondents 3 to 5 without costs. ( 5 ) AGGRIEVED by the Trial Court reducing the rate of interest and its negativing the claim for damages and dismissal of the claim against Respondents 3 to 5, plaintiff preferred this appeal. ( 6 ) THE main contention of the learned counsel for the appellant is that since the documentary evidence adduced by the appellant shows that third respondent corresponded with the appellant either as a proprietor or partner of first respondent the trial Court was in error in accepting the lame excuse of P. W. I that third respondent by mistake affixed his signature on the letters describing himself either as partner or proprietor of first respondent and contends that since Respondents 3 to 5 are but the sons of 2nd respondent, 2nd respondent, with a view save the property belonging to him, secreted the same in the names of Respondents 3 to 5, and since third respondent held himself out as partner of first respondent at least 3rd respondent, if not Respondents 3 and 4, is bound to answer the claim of the plaintiff as a partner of the first respondent firm, more so because 3rd respondent abstained from the witness box to swear to the fact that he is not a partner of the 1st respondent and to explain the circumstances under which he wrote the letters describing himself as a partner or proprietor of the first respondent. It is his contention that since appellant suffered a huge loss due to the delayed supply of the W. T. S. draftings in part, and due to the failure of respondents in supplying the remaining W. T. S. draftings, and since respondents did not dispute the calculation made in Schedule-II attached with the plaint and the evidence of P. W. 1, in that regard, the Trial Court was in error in negating the claim for damages made by the appellant. It is his contention that since the evidence of P. W. 2, clearly shows that the bank rate of interest was more than 19. It is his contention that since the evidence of P. W. 2, clearly shows that the bank rate of interest was more than 19. 5 per cent at the time of the institution of the suit, the Trial Court erred in granting interest only at the rate of 12% but not at bank rate of interest, more so because the transaction between the appellant and respondents is but a commercial transactions, by placing strong reliance on M/s. Thakral and Sons v. Indian Petro Chemicals Corporation Ltd. , air 1994 Delhi 226 and Sri Srinivasa Co. v. Firm, Vitta Dodda Hanumanthappa anjayya Setti, AIR 1985 AP 21 . ( 7 ) THERE is no representation on behalf of Respondents 1 and 2 though served. ( 8 ) THE contention of the learned counsel for Respondents 3 to 5 is that since no material is placed on the record to show that Respondents 3 to 5, who were made parties to the suit subsequently, are the partners of the first respondent firm and since the Trial Court gave cogent reasons for its holding that Respondents 3 to 5 are not the partners of the 2nd respondent in running the business of the first respondent concern, there are no grounds to interfere with the finding of the Trial Court that respondents 3 to 5 are not liable to the appellant. ( 9 ) THE points for consideration are:1. Whether Respondents 3 to 5 are partners of the first respondent concern being run by the 2nd respondent?2. Whether appellant is entitled to damages for loss of income due to the failure to supply the remaining w. T. S. draftings as per the agreement?3. To what rate of interest is the appellant entitled to on the amount due to it? ( 10 ) POINT No. 1: It is true that appellant initially filed the sit against Respondents 1 and 2 only, describing the first respondent as a proprietary concern of the 2nd respondent, and subsequently filed LA. No. 698 of 1982 to implead Respondents 3 to 5 as parties to the suit, as partners of the first respondent, by describing the first respondent as a partnership firm. No. 698 of 1982 to implead Respondents 3 to 5 as parties to the suit, as partners of the first respondent, by describing the first respondent as a partnership firm. For reasons best known to them Respondents 3 to 5 did not choose to file a counter in that petition and that petition was contested by respondents 1 and 2 only before the Trial court, which after considering the rival contentions, allowed the same and brought on record Respondents 3 to 5, holding that question relating to the status of Respondents 3 to 5 as partners with the 2nd respondent, in the first respondent concern would be decided at the time of disposal of the suit. ( 11 ) ON the ground that 3rd respondent described himself as a partner only in two letters, the Trial Court held that no presumption that he is a partner of the first respondent concern can be drawn. But the trial Court failed to note the contents of the letters addressed by Respondents 2 and 3 to the appellant produced by the appellant along with LA. No. 698 of 1982 where first respondent is described as n. Rajagopal and Co. Third respondent, signed those letters for and on behalf of the first respondent concern using plural, but not singular, which suggests that there is more than one person who has interest in that concern n. Rajagopal and Co. , while corresponding with the appellant. Therefore the Trial Court was in error in presuming that while replying to the appellant, who is a patron or customer of n. Rajagopal and co. , third respondent mistakenly described himself as a partner, that too when third respondent failed to enter the witness box to say so. ( 12 ) IN Ex. Al 1 addressed to the appellant, signed by 3rd respondent as the proprietor of the 1st respondent (Rajagopal and Co. ,) he stated "we are in receipt of your letter and in reply we have to state the following few lines. . . . . . . " (Underlining mine) in Ex. A. 18 letter addressed to the appellant, signed by the third respondent as partner of first respondent (Rajagopal and co. ,), he stated"today we have dispatched two frames of w. S. T. U. T. 3 drafting materials to your vijayanagaram Sarvaraya Textiles Ltd. , from simplex Mills, Bombay. . . . . . . . " (Underlining mine) in Ex. A. 18 letter addressed to the appellant, signed by the third respondent as partner of first respondent (Rajagopal and co. ,), he stated"today we have dispatched two frames of w. S. T. U. T. 3 drafting materials to your vijayanagaram Sarvaraya Textiles Ltd. , from simplex Mills, Bombay. . . . . . . We are sorry for the deky. . . . . " (Underlining mine) ex. A. 16 letter addressed by the third respondent to the appellant, singed by him as the partner of the first respondent (Rajagopal and Co. ,) reads:-"we have received your letter dated 3-1-1980 today. We came to understand the fact that you have placed order for new drafting-system by cancelling our second hand drafting supplies of the balance 2836 spindles materials out of 4840 Spindles materials. We have written to you about the delay causes in supplies many times. We have not expected and know your orders for new frames till before the receipt of your last letter. So that we dispatched the materials to you. " (Underlining mine) ex. A. 17 letter addressed to the appellant signed by 3rd respondent as partner of first respondent (Rajagopal and Co. ,) reads: last time one frame from our end was also sent through M. G. Brothers Lorry. We do not know whether the same has been cleared. When we tried for refund from the Mills,. . . . . . . " (Underlining mine) in Ex. A. 11 addressed to the plaintiff, signed by 3rd respondent as partner of first respondent (Rajagopal and Co. ,) he stated"we are in receipt of your above letter and in reply we have to state the following few lines for your consideration. . . . . . . . . . . . . . . . . . . . " (Underlining mine) ex. A. 2 addressed to the appellant and signed by 2nd respondent for and on behalf of 1st respondent (Rajagopal and Co. ,) reads: "we enclose herewith our proforma Invoice no. 83 for the proposed supply of draftings for 11 frames etc. . . . . . . . . . " (Underlining mine) if first respondent really is a proprietary concern of the 2nd respondent, while addressing the appellant there was no need for the 2nd respondent to describe himself as "we". 83 for the proposed supply of draftings for 11 frames etc. . . . . . . . . . " (Underlining mine) if first respondent really is a proprietary concern of the 2nd respondent, while addressing the appellant there was no need for the 2nd respondent to describe himself as "we". From the above letters it is seen that Respondents 2 and 3, while corresponding with the appellant, for and on behalf of the first respondent (Rajagopal and Co. ,), used plural but not singular, and so it is clear that more persons than one were in charge of the affairs of the first respondent. That 3rd respondent was looking after the business of the first respondent firm, and was giving an impression to third parties that he is a partner in first respondent is very clear from Exs. A. 18, A. 16, A. 17 and A. 11. That apart if 2nd respondent really was the sole proprietor of first respondent concern, there was no need either for him or to the third respondent to use the suffix and Co. , to rajagopal while corresponding with the plaintiff. It is also well known that suffix "and Co. ," would not usually be used in proprietary concerns, such suffix usually would be used only when more than one person is running the business. Therefore the contention of respondents 1 and 2 that first respondent is only a proprietary concern cannot be believed or accepted. ( 13 ) FIRST respondent concern admittedly is not a registered firm. Therefore, except the respondents, and the account books of first respondent nobody else can know who all have interest in the first respondent concern. Thus account books of the first respondent would be the best piece of evidence to reveal whether it is a sole proprietary concern, or a partnership firm and as to who have interest therein. But, for reasons best known to the respondents, they did not produce the account books of first respondent into the Court. So an adverse inference has to be drawn against the respondents for non-production of the account books of the first respondent. ( 14 ) IN view of Section 28 of the partnership Act a person who holds himself out as a partner of a firm would be liable to third parties, who believing such representation, act with him as a partner of a firm. Exs. ( 14 ) IN view of Section 28 of the partnership Act a person who holds himself out as a partner of a firm would be liable to third parties, who believing such representation, act with him as a partner of a firm. Exs. A. 2, A. 11, A. 17, A. 16 and A. 18 show that third respondent, therein had either described himself as partner of the first respondent or was acting on behalf of the first respondent and that 2nd respondent also was giving an impression that apart from him, others also have interest in the first respondent. All these apart 3rd respondent, for reasons best known to him, did not go into the witness box to explain the above letters. So an adverse inference has to be drawn against the third respondent, and so it has to be taken that third respondent is a partner of the first respondent along with the 2nd respondent. Though there is no material on record, as in the case of 3rd respondent, to show that respondents 4 and 5 are the partners of first respondent, since they failed to go into the witness box and since account books of first respondent, which disclose as to who all have interest therein, are not produced I hold that first respondent is a partnership firm and that Respondents 2 to 5 are its partners. The point is answered accordingly. Point No. 2: ( 15 ) THE case of the appellant, and the evidence of P. W. 1, is that due to failure of the first respondent in supplying the goods ordered for, there was loss in production, and as a consequence thereof it incurred loss. The Trial Court relying on Karsandas h. Thacker v. M/s. The Saran Engineering co. Ltd. , AIR 1965 SC 1981 , held that since the damages claimed by the appellant are too remote to the breach committed, appellant is not entitled to the damages claimed. Apart from the fact that damages claimed by the appellant are too remote, since it failed to establish that in spite of its effort to mitigate the damage, it incurred such damages it cannot be awarded the damages claimed. Therefore, I find no grounds to interfere with the finding of the trial Court that appellant is not entitled to any damages towards loss in production due to the breach committed by the first respondent. Therefore, I find no grounds to interfere with the finding of the trial Court that appellant is not entitled to any damages towards loss in production due to the breach committed by the first respondent. The point is answered accordingly. Point No. 3: ( 16 ) THOUGH the transaction between the appellant and respondents is a commercial transaction, Trial Court relying on Sri srinivasa Co. , (supra) held that 12 per cent per annum would be a reasonable amount of interest, on the ground that there is no evidence on record relating to the prevailing rate of interest. In Sri Srinivasa rao Co. , (supra), it is held that in case of loans relating to commercial transaction, when there is no agreement relating to payment of or the rate of interest, proviso of Section 34 C. P. C. enables the Court to award interest at current rate allowed by nationalized Banks on deposits. ( 17 ) THE evidence of P. W. 2, Bank manager, shows that the bank rate of interest, prescribed by the Reserve Bank of India, was 15% per annum with quarterly rests upto 30-6-1979 and from 1-7-1979 to 30-6- 1980 the interest was 18% per annum with quarterly rests and from 1-7-1980 to 30-9- 1980 it was 19. 4% per annum with quarterly rests and from 1-10-1980 to 31-3-1981 it was at 18. 35% per annum with quarterly rests and from 1-4-1981 to 30-11-1981 it was 19. 5% per annum with quarterly rests and from 31-3-1987 the interest was 19. 5% per annum with quarterly rests. Respondents did not adduce any evidence to the contra. In view of the evidence of P. W. 2, and since the transaction between the parties is a commercial transaction, in my considered opinion, interest at 18% per annum, as awarded in M/s. Thakral and Sons (supra) but not 12. 5% per annum, as ordered by the lower Court would be a reasonable rate of interest that can be awarded to the appellant. The point is answered accordingly. ( 18 ) IN view of my findings on the points for consideration, I pass a Decree for rs. 1,09,011. 16 Ps. , (Rupees one lakh nine thousand eleven rupees and sixteen paise only) in favour of the appellant, with interest at 18% per annum from the date of suit till the date of payment of Rs. ( 18 ) IN view of my findings on the points for consideration, I pass a Decree for rs. 1,09,011. 16 Ps. , (Rupees one lakh nine thousand eleven rupees and sixteen paise only) in favour of the appellant, with interest at 18% per annum from the date of suit till the date of payment of Rs. 82,348/- upto date of payment, with proportionate costs, in the Trial Court against the respondents. Rest of the claim of the appellant is dismissed. Parties do bear their own costs in this appeal.