J U D G M E N T INTRODUCTORY FACTS: M/s.Srinivasa Rice Miller represented by its proprietor, the defendant in O. S. No. 59 of 1987 on the file of the Subordinate Judge, Machilipatnam preferred the present appeal. The respondent herein M/s.Satyasri Rice Mill Contractors Company represented by its managing partner, the plaintiff in the suit filed the suit for recovery of a sum of Rs.84,931-51 ps., together with future interest @ 24% per annum from the date of suit to till the date of realization and for the costs of the suit. An amount of Rs.55,947/- was deposited even before the settlement of issues and in relation to the rest of the suit claim the evidence of P.Ws.1 and 2 and D.Ws.1 to 3 was recorded, Ex.A1 to Ex.A14 and Ex.B.1 to B.57 were marked and ultimately the learned Judge decreed the suit partly for Rs.15,777/- together with interest @ 15% per annum from 18.8.1987 till realization and also directed the defendant to pay interest @ 15% per annum from 31.10.1986 to 18.8.1987 on Rs.71,924/-, and negatived the relief of damages of Rs.5,000/- and also the rest of the suit claim, awarded proportionate costs of the suit, i.e., court fee paid on Rs.71,924/- plus interest calculated @ 15% per annum and not advocate fee since an amount of Rs.55,947/- was deposited before settlement of issues, but however, advocate fee on Rs.15,777/- plus interest calculated @ 15% per annum till the date of filing of the suit, had been granted. Aggrieved by the same, the present appeal is preferred. SUBMISSIONS OF J.BHASKAR RAO. REPRESENTING V.S.R.ANJANEYULU: 2. Sri J.Bhaskar Rao, the learned counsel representing V.S.R.Anjaneyulu, the counsel for appellant-defendant, made the following submissions: The learned counsel had taken this court through the findings, which had been recorded by the trial Court and would maintain that the said findings are not in accordance with the evidence available on record. The learned counsel also had pointed out that the learned Judge placed strong reliance on the evidence of P.W.2, but however, the learned counsel would comment that P.W.2 cannot be said to be a disinterested witness in the facts and circumstances of the case. The learned counsel also pointed out that the rice supplied by the respondent-plaintiff was not in conformity with the sample shown to the appellant-defendant by P.W.2. The learned counsel also pointed out that the rice supplied by the respondent-plaintiff was not in conformity with the sample shown to the appellant-defendant by P.W.2. The learned counsel also had pointed to the evidence of D.W.1 in detail and also would maintain that the evidence of D.W.2 and D.W.3 also would establish that as agreed upon the same quality and same variety of rice had not been supplied but what was supplied, was of inferior quality and in the light of the same merely because there is some delay, the same cannot be taken as deemed acceptance of the goods as it is by appellant-defendant and this approach adopted by the learned Judge cannot be sustained. The learned counsel also would submit that the observation made by the Court that Ex.B.1 to B.53 may not help the appellant-defendant also cannot be sustained. The counsel also made an effort to convince this court that there is no trade custom in relation to payment of interest in rice business and hence, the awarding of interest by the learned Judge also cannot be sustained. The learned counsel also explained Sections 17 to 41 of the Sale of Goods Act, 1930. SUBMISSIONS OF SRI CH. RAMAKRISHNA REPRESENTING V.V. PRABHAKAR RAO: 3. Sri Ch. Ramakrishna representing V.V. Prabhakar Rao, the counsel for respondent-plaintiff, made the following submissions. The learned counsel pointed to certain of the admissions made by D.W.1 and also the evidence of P.W.1 and P.W.2 and had also pointed out to the counter foils wherein the terms and conditions relating to the supply of goods had been incorporated. The learned counsel also would maintain that in the facts and circumstances of the case, P.W.2 can be taken as an agent and the evidence of P.W.2 is very crucial. In the evidence of P.W.1 and P.W. 2 if carefully scrutinized it is clear that the contention of appellant-defendant that inferior quality which is not conformity with the sample, had been supplied, canot be sustained. The learned counsel also would maintain that even otherwise, the conduct of appellant-defendant also may have to be taken into consideration and by virtue of the lapse of time it can be taken that those objections, if any, relating to the variety or quality had been deemed to have been waived. The learned counsel also would maintain that even otherwise, the conduct of appellant-defendant also may have to be taken into consideration and by virtue of the lapse of time it can be taken that those objections, if any, relating to the variety or quality had been deemed to have been waived. The learned counsel also pointed out that appellant-defendant had not produced the accounts books as such and the evidence of D.W.2 and D.W.3 also will not help the appellant-defendant for the reason that there is no connecting link whether the self same rice had been purchased by these witnesses or otherwise. The learned counsel also had taken this court through the findings recorded by the learned Judge and would conclude that in the light of the findings recorded in detail, inasmuch as the amount deposited had been given due credit to and for the rest of the amount only the decree had been granted and the interest also had been granted only for a particular period specifying the relevant dates, the said findings need not be disturbed by this appellate court. 4. Heard both the counsel on record. Perused the oral and documentary evidence available on record and also the findings recorded by the trial Court. POINTS FOR CONSIDERATION: 5. In the light of the contentions advanced by both the counsel, the following points arise for consideration: 1. Whether the findings recorded by the learned Judge are liable to be disturbed in any way in the facts and circumstances of the case? 2. If so, to what relief the parties are entitled to ? POINT NO. 1: 6. On appreciation of the evidence of P.W.1 and P.W.2, Ex.A1 to A14, D.W.1 to D.W.3 and Exs.B1 to B.57, findings in detail had been recorded and ultimately the suit was partly decreed, as already specified supra. The respondent herein, the plaintiff filed the suit for recovery of sum of Rs.84,931- 51 ps., with interest and costs with the following averments in the plaint: “ Plaintiff a registered firm was carrying on rice milling business at Malleswaram. Defendant is a rice merchant carrying on rice business at Governorpet, Vijayawada. The defendant had khata dealing with the plaintiff-firm and renewed khata dealings by opening a khata with the plaintiff-firm through rice broker Md.Shameem on 30.10.1986 and purchased on credit 100 quintals of rice under credit bill no. Defendant is a rice merchant carrying on rice business at Governorpet, Vijayawada. The defendant had khata dealing with the plaintiff-firm and renewed khata dealings by opening a khata with the plaintiff-firm through rice broker Md.Shameem on 30.10.1986 and purchased on credit 100 quintals of rice under credit bill no. 3 of 53 for Rs.33,012/- and further quantity of 100 quintals of rice on credit under credit bill no. 3 of 54 for Rs.38,912/- on same day. Both the consignments of rice were delivered under Government permit to the defendant through the lorry transport. Out of such stock of 200 quintals, 141 quintals are of sona rice and 59 quintals are of palagarru rice. The defendant and the rice broker Md.Shameem were satisfied with the quality of the rice supplied by the plaintiff as per the sample. On taking account of the Khata of the defendant, the defendant was found due to pay a sum of Rs.71,924/- towards principal amount and Rs.8,007-52ps., towards interest. As per trade custom, usage and also by virtue of agreement, the defendant has to pay interest at 24% p. a. on khata dealings. (b) The plaintiff made several demands orally as well by addressing a letter dated 26.11.1986. The defendant failed to pay any payment. Defendant never raised any objection about the quality of rice. For the first time the defendant sent a registered letter on 27.11.1986 with false and fictitious allegations stating that out of the stock, 141 quintals of sona rice did not tally with the sample and it has to be taken back with a malafide intention to cause wrongful loss to the plaintiff. The plaintiff sent a registered letter on 29.11.1986 denying the said allegations stating that sona rice was supplied as per sample given and that the amount be arranged at any early date. The plaintiff then got issued a legal notice on 19.1.1987 demanding the payment of khata dues. The defendant gave another notice dt. 20.1.1987 and claimed godown rent at the rate of Rs.10/- bag and demurrage charges at the rate of Rs.5/- per bag and Rs.15/- towards profits but did not make any amount towards khata dues. The claim of defendant lacks bona fides. The deffendant later filed a caveat petition on 21-2-1987. ( c) The defendant wrongfully withholding the amount due. 20.1.1987 and claimed godown rent at the rate of Rs.10/- bag and demurrage charges at the rate of Rs.5/- per bag and Rs.15/- towards profits but did not make any amount towards khata dues. The claim of defendant lacks bona fides. The deffendant later filed a caveat petition on 21-2-1987. ( c) The defendant wrongfully withholding the amount due. Had defendant paid khata dues, the plaintiff might have invested the amount in business transaction and would have earned profits. The defendant made a wrongful benefit by withholding the payment although the plaintiff performed his part of contract of supplying rice. The defendant committed breach of the contract and is liable to pay damages. The plaintiff claims damages of Rs.5,000/- against the defendant for the loss sustained by him and for mental worry, hardship caused to him. (d) The suit claim thus includes principle amount of Rs.71,924/-; interest calculated at 24% p.a., and damages of Rs.5,000/-. The defendant is not an agriculturist and is not entitled to the benefit of Act VII of 1977 or Act IV of 1938.” 7. The appellant herein, the defendant in the suit resisted the suit with the following averments made in the written statement: “ (a) The plaintiff is put to strict proof of the averments of the plaint. The suit is not maintainable. The plaintiff is put to strict proof that it is a registered partnership firm. Defendant is rice merchant carrying on rice business at Governorpet, Vijayawada. There is no regular khata with the plaintiff. However, there were stray transactions with the plaintiff through mediators only and there was never any direct dealings with the plaintiff. Defendant purchased rice on credit on 30. 10.1986. The purchase of rice was subject to the condition that the stocks supplied is inconformity with the sample of the rice originally supplied to the defendant at the time of striking the bargain. The rice was delivered under Government permit to the defendant. Defendant admits the details of the stock delivered to him. The allegation that defendant and the rice broker Md.Shameem were satisfied with the quality of the rice supplied by the plaintiff and that the quality of rice supplied was inconformity with the sample is false and the same is denied. (b) The stock actually supplied to the defendant did not tally with the original sample shown which was kept with the defendant. (b) The stock actually supplied to the defendant did not tally with the original sample shown which was kept with the defendant. There is no direct dealing between the plaintiff and the defendant and it is only Md.Shameem who is agent of the plaintiff transacted with the defendant and defendant informed that the rice supplied is not of same quality of the sample shown to the defendant at the earliest opportunity. Defendant is not liable to pay a sum of Rs.71,924/- towards principal and a sum of Rs.8,007-52 ps., towards interest. The account copy filed by the plaintiff is not correct and true one. There is no trade custom, usage or agreement for payment of any interest. The defendant did not retain any money or withhold the amount for his own purpose. The plaintiff alone is responsible for protraction of the transaction. The plaintiff did not address any letter on 26.11.1986 to the defendant. The said plea of the plaintiff is therefore, false. The said letter dt.26.11.1986 is invented for the purpose of filling up the laches and also lacunae in the present transaction. The plaintiff supplied a different variety or quality .of the rice, which is not inconformity with the sample shown. The sample shown by the defendant is the basis on which the transaction was struck between the parties. The defendant is under no obligation to receive the rice not infirmity with the sample or to deal with it unless the plaintiff himself takes up responsibility by making good the loss suffered by the defendant. (c) The allegation that the defendant ever raised any objection about the quality of the rice and for the first time the defendant raised objection in the registered letter dt. 27.11.1986 is absolutely false. The plaintiff is fully aware that he had not made any such attempt till such time the defendant intimated by registered notice about the breach of contract committed by the plaintiff. It is the defendant who gave notice at the first instance. The plaintiff is not entitled to claim any damages whatsoever muchless an amount of Rs.5,000/-. The plaintiff is fully aware that he had not made any such attempt till such time the defendant intimated by registered notice about the breach of contract committed by the plaintiff. It is the defendant who gave notice at the first instance. The plaintiff is not entitled to claim any damages whatsoever muchless an amount of Rs.5,000/-. (d) When the stock supplied was not inconformity with the sample given on the basis of which the bargain was settled, the defendant represented the matter to the broker on very same day for which the broker stated that he would inform the same to the plaintiff and see that the stock was taken back by the plaintiff. The plaintiff also talked about the same at Vijayawada and assured that he would take back or arrange for the disposal of the stock within a week but there was no response for about 15 days. The defendant has a limited accommodation for keeping the stock. The defendant, therefore, made it clear in the letter dated 27.11.1986 that the plaintiff would have to pay rental at the rate of Rs.10/- per bag per month till the date of removing of stock in the shop. In reply notice, the plaintiff did not deny specifically their visit to Vijayawada and the talks with the defendant. It is only in the registered notice on 11.1.1987, the defendant find no bona fide in the stand of the plaintiff. Even after exchange of registered notice, the plaintiff did not take any steps to take return of the stock. As the plaintiff did not take back the stock from defendant, the defendant was constrained to dispose off the rice in dispute. The defendant realized a sum of Rs. 67,227-08 ps. The defendant incurred a sum of Rs.11,270/- towards expenses on account of damages for gunny at the rate of Rs.5/- per bag and Rs.705/- towards rent. The defendant thus liable to pay balance of Rs. 55,947-08 ps. The said amount was deposited into the court and the plaintiff also withdraw the said amount. The defendant is, therefore, not liable to pay any amount muchless suit amount. There is no stipulation to pay any interest as the defendant did not sign on the patties. The plaintiff wanted to fasten inferior variety of rice. The plaintiff filed the suit unnecessarily against the defendant. The defendant is, therefore, not liable to pay any amount muchless suit amount. There is no stipulation to pay any interest as the defendant did not sign on the patties. The plaintiff wanted to fasten inferior variety of rice. The plaintiff filed the suit unnecessarily against the defendant. As the defendant has been doing business, the filing of the suit caused damaged to his good will in the market. The defendant is entitled to claim compensatory costs of Rs.5000/- under Section 35(d) of the Code of Civil Procedure. The defendant, therefore, prays that the suit be dismissed awarding exemplary costs of Rs.5,000/- under Sec.35(a) of CPC.” 8. The learned Judge settled the issues whether the suit khata is true and yet another issue to what relief appreciated evidence on record and ultimately, partly decreed the suit. The deposit of Rs.55,947/- before the settlement of issues is not in serious controversy. On 13.10.1986 respondent-plaintiff supplied 141 quintals of sona rice and 59 quintals of palagarru rice to appellant-defendant under credit basis and the value of the rice, covered by the same, is Rs.71,924/-. Appellant- defendant received the said rice on 31.10.1986. Ex.A2 and Ex.A3 are the copies of credit patties dated 13.10.1986. It is stated that the rice, which was agreed to be supplied, should be in conformity with the sample which had been shown to appellant-defendant. There appears to be no controversy relating to the quality of palagarru rice. However, there is dispute relating to the quality of rice of sona variety, which had been supplied. The evidence is that the said sona rice, supplied by the plaintiff, is not in conformity with the sample shown to the defendant, by the agent P.W.2. The stand of the defendant is that in view of the same he wanted that such inferior variety of sona rice to be taken back. No doubt, the stand taken by the defendant is that the plaintiff and P.W.2 were made known regarding the inferior quality of sona rice supplied on receipt of the goods and they assured to take back the same and the defendant waited for about a fortnight and there was no response from the plaintiff and the defendant addressed a letter on 27.11.1986 intimating about the inferior quality of the rice supplied to him and also requested him to pay the godown rental charges. Since, the plaintiff had not kept the promise of taking back the goods, the defendant disposed of the stock and realized the sum of Rs.67,227- 08 ps., and adjusted a sum of Rs.11,270/- and deposited an amount of Rs. 55,947-08 ps., which was withdrawn by the plaintiff. 9. Sections 17 and 41 of the Sale of Goods Act, 1930 read as hereunder: “ 17. Sale by Sample:- (1) A contract of sale is a contract for sale by sample where there is a term in the contract, express or implied, to that effect. (2) In the case of a contract for sale by sample there is an impliedcondition- (a) that the bulk shall correspond with the sample in quality; (b) that the buyer shall have a reasonable opportunity of comparing the bulk with the sample; (c) that the goods shall be free from any defect, rendering them unmerchantabel, which would not be apparent on reasonable examination of the sample. 41. Buyer’s right of examining the goods:- (1) Where goods are delivered to the buyer which he has not previously examined, he is not deemed to have accepted them unless and until he has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.” 10. (2) Unless otherwise agreed, when the seller tenders delivery of goods to the buyer, he is bound, on request, to afford the buyer a reasonable opportunity of examining the goods for the purpose of ascertaining whether they are in conformity with the contract.” 10. In DASA PEDDA ADEPPA vs I.ASHWARTHAIAH, A.S.No.843 of 1950 decided by the Division Bench of this Court dated 16.9.1955 while dealing with the scope of Section 41 and Section 42 of the Sale of Goods Act, 1930 it was held that when goods are sold by description, unless and until the buyer has had a reasonable opportunity of examining them for the purpose of ascertaining whether they are in conformity with the contract or not, he is not deemed to have accepted them and when requested by the buyer, the seller is bound to give a reasonable opportunity to him to satisfy himself, but on the other hand if the buyer intimates to the seller that he accepted the goods or after taking delivery he does any act which is inconsistent with the ownership of the seller or does not intimate to him within a reasonable time that he rejected them, he will be deemed to have accepted the goods. 11. Reliance was also placed on the decision of Madras High Court reported in SORABJI HORMUSHA JOSHI & CO., vs V.M.ISMAIL AND ANOTHER(1) and also the decision of yet another learned judge of Madras High Court In RE.BEHARILAL BALDEOPRASAD FIRM OF MERCHANTS AND OTHERS(2). 12. The learned Judge appreciated the evidence available on record in detail and recorded findings at paras 22 to 41. The supply of the goods in question and the receipt of the goods, is not in serious dispute. The same is clearly established by the evidence of P.Ws.1 and 2 and also the evidence of D.W.1 and Ex.AI to A. 14. The evidence of P.W.2 is very crucial in deciding the matter. It is not as though P.W.1 was unknown to D.W.1 and there are certain admissions made by D.W.1 about prior acquaintance. P.W.2 specifically deposed that the goods which and been supplied were in conformity with the sample shown to the defendant. This evidence of P.W.2, along with P.W.1, had been elaborately discussed by the learned Judge. D.W.2 and D.W.3 were examined to show that they have purchased some rice, which is of inferior quality from D.W.1. P.W.2 specifically deposed that the goods which and been supplied were in conformity with the sample shown to the defendant. This evidence of P.W.2, along with P.W.1, had been elaborately discussed by the learned Judge. D.W.2 and D.W.3 were examined to show that they have purchased some rice, which is of inferior quality from D.W.1. There is no evidence forthcoming to connect these witnesses and the evidence that the goods said to have been actually supplied by the plaintiff to the defendant. D.W.1, no doubt, deposed about the sale of rice under various bills, Ex.B1 to B.53 and this witness also deposed that there was deficiency of two quintals of rice and just at the time of final disposal of the rice he received suit summons from the Court and he had deposited Rs.55,947/- into court after deducting his due from the total sale price. This witness also deposed that if P.W.1 had taken back the sona rice he would have paid the price for the other rice without any delay and this witness also deposed that the broker P.W.2 is the agent of plaintiff only and after filing of the suit he came to know that P.W.1 is a seasoned litigant. This witness also deposed in detail in chief examination about P.W.2 sending the samples of rice and the other subsequent events. This witness also deposed that he rang up to P.W.2 and informed about the rice received and that sona rice was not in accordance with the sample and he replied that he would come and verify the same and he came to the shop on the next day and verified the stock with him and found that sona rice were inferior quality and not in accordance with the sample issued by him. This witness also deposed that P.W.1 came to his shop and verified the stock, which was supplied by him and having found that sona rice was not in conformity with the sample he requested him to dispose of the same. This witness also deposed that in spite of his refusal to do so, since there was selling quality rice P.W.1 insisted for disposal, and he had deposed about the subsequent events also. He deposed about certain correspondence between the parties, Ex.A5 and A6 and subsequent thereto P.W.1 issued notice Ex.A7 and reply notice Ex.A8 was given. This witness also deposed that in spite of his refusal to do so, since there was selling quality rice P.W.1 insisted for disposal, and he had deposed about the subsequent events also. He deposed about certain correspondence between the parties, Ex.A5 and A6 and subsequent thereto P.W.1 issued notice Ex.A7 and reply notice Ex.A8 was given. In cross-examination D.W.1 deposed that he had not filed any account book in court. This witness also deposed that he received counter foil bills Ex.A2 and A3 and they contained that the stock was sold through P.W.2 and it is also noted as ‘well delivery’ and there is s clause in Ex.A2 and A3 to pay interest @ 24% per annum for the value of the goods. This witness also deposed that he knows P.W.1 personally, but he does not know whether the P.W.I used to visit Vijayawada to show sample to the shops and also the brokers. This witness also deposed that he does not know whether P.W.1 makes visits to Vijayawada every weekly or frequently. This witness also deposed that at the time P.W.2 came to him and verified the stock on his request, there was none present from outside and his staff will be there. This witness also deposed that P.W.I visited the shop on 8.9.1986 and he does not have any record to show that he visited his shop on that day and that he is also not having any record to show that he requested P.W.1 to take back the stock since the same is not in accordance with the sample. Several other details also had been elicited in the cross-examination. This witness also deposed about contents of caveat-Ex.A-14 and deposed that he did not state in the caveat that he proposed to sell away the stock in the market at Vijayawada. Thus, though Ex.B1 to B.53 were relied upon, these documents go to show that he had disposed of the stocks and nothing else. The conduct of D.W.1 and the admissions made by D.W.1 coupled with the evidence of P.Ws.1 and 2 had been taken into consideration by the learned Judge and findings in detail had been recorded. Be that as it may, the fact remains that substantial portion of the amount already had been deposited. Submissions at length were made relating to payment of interest. Be that as it may, the fact remains that substantial portion of the amount already had been deposited. Submissions at length were made relating to payment of interest. The learned Judge had taken care to see that due deduction is given to the amount already deposited before the settlement of issues and for the rest of the amount, within the specified dates the interest had been awarded. Further on Rs.71.924/- in view of the conditions agreed upon, the learned Judge thought it fit to grant interest @ 15% per annum from 31.10.1986 to 18.8.1987. In the facts and circumstances of the case, this cannot be said to be unjust or unreasonable. The learned Judge, in fact had taken into consideration all the contentions advanced by both the counsel and also kept in view the ingredients to be satisfied in the light of Section 17 and Section 41 of the Sale of Goods act, 1930 and especially taking the conduct of D.W.1 into consideration arrived at a conclusion that the stand taken by the appellant-defendant that sona rice, which had been supplied, was of inferior quality, cannot be sustained and accordingly the suit was partly decreed. On a careful scrutiny of the whole oral and documentary evidence available on record and also the findings recorded by the learned Judge, this Court is thoroughly satisfied that there is neither any illegality nor any legal infirmity in the said findings and accordingly the said findings are hereby confirmed. POINT NO.2: 13. In the light of the discussion of the evidence available on record in detail supra, it is needless to say that the appeal is devoid of merit and accordingly, the same shall stand dismissed. However, in view of the fact that substantial portion of the amount already had been deposited even prior to the settlement of issues inasmuch as the suit was only decreed partly, the parties to the appeal to bear their own costs. --X—