JUDGMENT B.P. Katatey, J. 1. These 2 (two) appeals, one by the Defendant and the other by the Plaintiff in Money Suit No. 67/1997, are directed against the judgment and decree dated 14th August, 2001 passed by the learned Civil Judge (Senior Division), Court No. 1, decreeing the suit of the Plaintiff for an amount of Rs. 19,91,504 with pendentilite and future interest @ 10% per annum from the date of filing of the suit, i.e., on 2nd June, 1997, till realization and also for the proportionate cost of the suit. While RFA No. 33/2001 has been filed by the Defendant by challenging the judgment and decree dated 14th August, 2001 passed in Money Suit No. 67/1997, RFA No. 41/2001 has been filed by the Plaintiff challenging the rejection of their claim for Rs. 40,58,378 by the learned Civil Judge by the aforesaid judgment and decree. 2. Indian Airlines Limited, a company registered under the Companies Act, 1956 instituted Money Suit No. 67/1997 on 2nd June, 1997, against the Appellant claiming an amount of Rs. 19,91,504 with interest and cost contending, inter alia, that on 27th November, 1991, the Defendant was appointed as Sales Agent for selling the tickets of the erstwhile Indian Airlines at Agartala with effect from 16th December, 1991, pursuant to which an agreement was executed on 19th May, 1992, with stipulation that the Defendant shall remit to the airlines moneys dues for the transportation, i.e., the sale proceeds of the tickets at such time, under such condition and in accordance with the account procedure as the airlines may designate from time to time in writing with further stipulation that if the agent at any time defaults in observing or performing any of the provisions of the agreement or becomes bankrupt or makes any assignment for the benefit of or enter into any agreement or composition with its creditors or go into liquidation or suffer any of its goods to be taken in the execution or if it ceases to be in business as an agent for sale of air passenger transportation, the agreement may at the option of the airlines be terminated or its operation be suspended forthwith and for such period as the airlines may decide and the airlines may without prejudice to any of its rights under the agreement take possession of any documents and property belonging to it. It has further been pleaded in the plaint that the Defendant pursuant to the contract furnished a bank guarantee for Rs. 4,80,000 for due performance of the contract. The further pleaded case of the Plaintiff is that as the Defendant committed financial irregularities, the Cash Value Documents (CVD) were withdrawn by the Plaintiff on 2nd October, 1993 and on verifying the agency records, it was found that the Defendant was regularly short depositing money due to the Plaintiff and such dues up to the fortnight ending on 15th September, 1993 was found to be Rs. 27,18,601 which, however, was subsequently paid by the Defendant without, however, depositing the fortnightly remittance for the fortnight ending on 30th September, 1993, i.e., for the period from 16th September, 1993 to 30th September. 1993 amounting to Rs. 10,37,092, that apart the Defendant also did not account for the sales for the 2 (two) days, i.e., 1st October, 1993 and 2nd October, 1993, and also did not pay the amount of Rs. 9,662 for which debit notes dated 20th May, 1995 for an amount of Rs. 24 and dated 23rd May, 1995 for an amount of Rs. 9,408 were raised. In the said plaint, it has further been averred that though because of the failure of the Defendant to pay the aforesaid amount, the Plaintiff wanted to invoke the bank guarantee of Rs. 4,80,000, the State Bank of India, Tripura Legislative Branch, Agartala did not pay the said amount and in the meantime the Defendant instituted Title Suit No. 54/1994, wherein the prayer for temporary injunction was also made for restraining the Plaintiff and others from invoking the said bank guarantee and though initially an order of injunction was passed, the same was subsequently vacated by the learned Munsiff on contest, which was challenged by the Defendant in an appeal before the learned District Judge. According to the Plaintiff, the said proceeding was subsequently withdrawn by the Defendant in view of filing of another suit being Money Suit No. 47/1995 in the court of the learned Assistant District Judge, No. 1, West Tripura, Agartala claiming a money decree for Rs. 2,00,000 (rupees two lakh) as compensation and damages against the officers of the Plaintiff. It is also the case of the Plaintiff in the plaint that Money Suit No. 54/1994 filed by the Defendant, was also withdrawn by the Defendant subsequently. 2,00,000 (rupees two lakh) as compensation and damages against the officers of the Plaintiff. It is also the case of the Plaintiff in the plaint that Money Suit No. 54/1994 filed by the Defendant, was also withdrawn by the Defendant subsequently. According to the Plaintiff, though after withdrawal of the suit they insisted the State Bank of India for payment of the aforesaid sum of Rs. 4,80,000 pursuant to the Bank guarantee given, the Bank did not pay the said amount on the plea of pendency of a dispute between the Plaintiff and Defendant. The Plaintiff, therefore, filed the suit for realization of Rs. 19,91,504, break up of which has been given in paragraph 21 of the plaint, which is quoted below: Outstanding dues of the Plaintiff from the Defendant as an 31st May, 1997 are as follows: 1. Sales for fortnight ending on 30.9.1993 -- Rs. 10,37,092.00 2. Debit Notes -- Rs. 9,662.00 3. Penal Interest @ 25% on the said sum of -- Rs. 9,44,748.00 Rs. 10,37,092 w.e.f. 9.10.1993 to 31.5.1997 _______________ Rs. 19,91,504.00. 3. The pleadings in the said plaint filed in the present suit was subsequently amended on the basis of the application filed by the Plaintiff under Order 6 Rule 17 of the Code of Civil Procedure, as more amount towards the value of 338 numbers of single coupon tickets, which were issued to the Defendant but not returned amounting to Rs. 21,22,978 was subsequently found to be due, apart from the penal interest @ 25% on the said amount for the period from 9th October, 1993 to 31st May, 1997 amounting to Rs. 19,35,400. The Plaintiff, therefore, enhanced their claim to Rs. 55,70,591 and prayed for passing a decree for the said amount against the Defendant by deducting a sum of Rs. 4,30,000 from the total dues of Rs. 60,50,591, which amount the Plaintiff have received by invoking the Bank guarantee given by the Defendant for due performance of the contract. The particulars of the revised claim have been given by the Defendant in paragraph 25 of the amended plaint, which is reproduced below: Sales for fortnight ending on 30.9.1993 -- Rs. 10,37,092.00 Debit notes -- Rs. 9,662.00 Penal interest @ 25% on the said sum of Rs. 10,37,092 w.e.f. 9.10.1993 to 31.5.1997 -- Rs. 9,45,459.00 Value of the 338 numbers of single coupon Tickets for the longest sector, i.e., Delhi/ Trivendum @ Rs. 10,37,092.00 Debit notes -- Rs. 9,662.00 Penal interest @ 25% on the said sum of Rs. 10,37,092 w.e.f. 9.10.1993 to 31.5.1997 -- Rs. 9,45,459.00 Value of the 338 numbers of single coupon Tickets for the longest sector, i.e., Delhi/ Trivendum @ Rs. 6,281 per ticket -- Rs. 21,22,978.00 Penal interest @ 25% on the said sum of -- Rs. 19,35,400.00 Rs. 21,22,978 w.e.f. 9.10.1993 31.5.1997 _______________________ Rs. 60,50,591.00 Less: Amount paid by the State Bank of India against the Bank Guarantee furnished Rs. 4,80,000.00 by the Defendant ________________ Rs. 55,70,591.00 4. The Defendant filed the consolidated written statement raising the plea of maintainability of the suit as well as the limitation, apart from pleading that though the Defendant was appointed as Sales Agent with effect from 16th December, 1991 he, however, did not know about the terms and conditions of the agreement, as no copy of such agreement was ever given to him. The averments made by the Plaintiff in the plaint relating to non-clearance of the dues have also been denied by the Defendant. According to the Defendant, all amounts due and payable were paid to the Plaintiff. 5. The learned Civil Judge, on the basis of the pleadings of the parties framed the following issues for consideration and decisions: (1) Whether the suit is maintainable in its present form? (2) Whether the Plaintiff is entitled to have sale proceeds of air tickets from the Defendant and if so, whether the Defendant deposited the same to the account of the Plaintiff? (3) Whether the Plaintiff is entitled to any relief and if so, up to what extent? 6. The Plaintiff, in order to prove his case, examined 3 (three) witnesses, namely, Sri Saroj Kr. Bose as PW1, Sri Shantipriya Sen as PW2 and Sri Angshuman Majumder as PW3, who are the officers of the Plaintiff. The Defendant also examined himself as DW1. The Plaintiff has also exhibited the following documents: Ext. 1: Copy of the appointment letter of the Defendants as Sales Agent." Ext.2: Agreement of sales agency between the Plaintiff and the Defendants. Ext.3: Copy of letter of the Plaintiff dated 6/7.10.1993 declaring the Defendant defaulter. Ext.4: Copy of the letter of the Plaintiff dated 4.11.1993 asking the Defendant for remittance of sale of air ticket for the fortnight ending on 30.9.1993 and 15.10.1993. Ext.5: Copy of reminder of Ext.4 dated 1.12.1993. Ext.3: Copy of letter of the Plaintiff dated 6/7.10.1993 declaring the Defendant defaulter. Ext.4: Copy of the letter of the Plaintiff dated 4.11.1993 asking the Defendant for remittance of sale of air ticket for the fortnight ending on 30.9.1993 and 15.10.1993. Ext.5: Copy of reminder of Ext.4 dated 1.12.1993. Ext.6: Copy of letter of the Plaintiff dated 10.3.1994 stating short deposition of sale proceeds of C.V. Ds. Ext. 7: Copy of letter of Plaintiff dated 4/6.6.1994 for adjustment of Bank guarantee against the outstanding dues for the fortnight ending 30.9.1993 and 15.10.1993. Ext.8: Certified copy of plaint of T.S. No. 54/94. Ext.9: Certified copy of order dated 24.4.1995 refusing Temporary Injunction during pendency of T.S. 54/94. Ext. 10: Certified copy of judgment and decree of M.S. 47/95 for compensation due to withdrawal of C.V. Ds. Ext. 11: Copy of letter of the Plaintiff allotting agent code number to the Defendant. Ext. 12:to Ext. 16: Debit Notes of the Plaintiff or short deposition of sale proceeds of air tickets amounting to Rs. 18,287, Rs. 9651, Rs. 24, Rs. 9408, Rs. 230 respectively. Ext. 17: Copy of the letter of the Plaintiff for making adjustment of short payment for the period from 30.4.1993 to 16.9.1993. Ext. 18: Copy of the message for withdrawal of the C.V. Ds. Ext. 19 (Series): Agents daily passage sales return for the period from 16.9.1993 to 30.9.1993. Ext.20: Circular of the Plaintiff dated 5th October, 1985 regarding the cost of C.V. Ds. 7. The learned trial court vide judgment dated 14th August, 2001 decreed the suit of the Plaintiff for Rs. 19,91,504, which includes the claim of penal interest at the rate of 25 per cent amounting to Rs. 9,45,459 with pendentilite and future interest by rejecting its claim for Rs. 21,22,978 towards the value of 338 numbers of single coupon tickets and for Rs. 19,35,400 towards the penal interest on the said amount for the period from 9th October, 1993 to 31st May, 1997 totalling Rs. 40,58,378, and by answering the issue No. 1 in favour of the Plaintiff and issue No. 2 partly in favour of the Plaintiff. The claim of penal interest @ 25% on Rs. 10,37,092, amounting to Rs. 9,45,459 has been decreed by holding that the agreement dated 19th May, 1992 (Exhibit-2) executed between the parties provides for payment of such penal interest. The claim of penal interest @ 25% on Rs. 10,37,092, amounting to Rs. 9,45,459 has been decreed by holding that the agreement dated 19th May, 1992 (Exhibit-2) executed between the parties provides for payment of such penal interest. Though no issue was framed relating to the question as to whether the suit of the Plaintiff is barred by law of limitation, the said issue was also gone into by the learned trial court, as evidence was led by the parties on the said issue and arguments were advanced by the learned Counsel appearing for the parties. The question of limitation has been decided in favour of the Plaintiff by holding that the Defendant in the plaint filed in Money Suit No. 54/1994 had acknowledged the dues payable by him to the Plaintiff within the period of limitation and though the present suit was filed by the Plaintiff beyond the period of 3 (three) years from the date of termination of the agency, in view of Section 18 of the Limitation Act, 1963 a fresh period of limitation has to be computed from the date of filing of the plaint by the Defendant in Money Suit No. 54/1994, i.e., 30th June, 1994, and, hence, the suit of the Plaintiff is within time. The claim of the Plaintiff for an amount of Rs. 40,58,378 towards the value of 338 numbers of single coupon tickets together with penal interest has been rejected on the ground that the Plaintiff could not produce any documentary evidence relating to issuance of such tickets by it to the Defendant. The learned trial court has also adjusted the amount of Rs. 4,80,000, received by the Plaintiff by invoking the Bank guarantee given by the Defendants, towards the amount found to be due by the courts below towards the sale proceeds for 1st October, 1993 and 2nd October, 1993 together with penal interest at the rate of 25 per cent by taking the daily sale as Rs. 1,00,000 (one lakh), even though in the plaint no claim for passing a decree in respect of the sale proceeds for 1st October, 1993 and 2nd October, 1993 together with the penal interest at the rate of 25 per cent on the said amount was prayed for. Hence, the present appeal. 8. 1,00,000 (one lakh), even though in the plaint no claim for passing a decree in respect of the sale proceeds for 1st October, 1993 and 2nd October, 1993 together with the penal interest at the rate of 25 per cent on the said amount was prayed for. Hence, the present appeal. 8. During pendency of these appeals before this Court, in view of the amalgamation of Air India Limited and the Indian Airlines Limited with National Aviation Company of India Limited, with effect from 27th August, 2007, Under Sections391/394 of the Companies Act, 1956 pursuant to a scheme prepared for that purpose, and consequent transfer and vesting of the management of Indian Airlines Limited with the said National Aviation Company of India Limited, necessary amendment relating to the name of the Plaintiff, has been made by substituting National Aviation Company Limited in place of erstwhile Indian Airlines Limited, in view of the applications filed by the Plaintiff as well as by the Defendant in their respective appeals. 9. We have heard Mr. S. Deb, the learned senior counsel for the Defendant/Appellant in RFA No. 33/2001, who is the Respondent in RFA No. 41/2001. We have also heard Mr. P. Chakraborty, the learned Counsel appearing for the Plaintiff/Respondent in RFA No. 33/2001, who is the Appellant in RFA No. 41/2001. 10. Mr. Deb, learned senior counsel for the Defendant/Appellant has submitted that the claim of the Plaintiff for money being pertaining to the period ending on 30th September, 1993, the suit filed by it for realisation of the same is barred by the law of limitation, in view of-the period prescribed for filing such suit under Article 3 of the Limitation Act, 1963, the same having not been instituted within 3 (three) years from 30th September, 1993. According to the learned senior counsel, the learned court below has held the suit of the Plaintiff as not barred by the law of limitation only on the ground that there was an acknowledgement of the liabilities by the Defendant in the plaint filed by him in Title Suit No. 54/1994 though, according to the learned senior counsel, reading of the plaint filed in the said suit as a whole does not disclose acknowledgement of any existing liability. It has also been submitted that before or at the time of filing of title suit No. 54/1994 by the Defendant, there was no existing liability of the Defendant as he was not informed by the Plaintiff at any time till the date of filing of the suit by the Defendant about any liability and as such, the averments made in the plaint filed in title suit No. 54/1994 cannot be construed as acknowledgement within the meaning of Section 18 of the Limitation Act, as, such acknowledgement has to be in relation to the existing liability. 11. Mr. Deb further submits that even assuming that there was an acknowledgement of the liability by the Defendant in the plaint filed in the aforesaid title suit No. 54/1994, the subject-matter of the said suit being relating to invocation of the Bank guarantee by the present Plaintiff to the tune of Rs. 4,80,000, such acknowledgement would at the most be to the tune of Rs. 4,80,000 and not beyond that. According to the learned Counsel, since admittedly the Bank guarantee of Rs. 4,80,000 given by the Defendant has already been invoked by the Plaintiff, no further amount ought to have been decreed by the learned trial court, the other part of the claim of the Plaintiff being barred by law of limitation. In this connection Mr. Deb has referred to the averments made in paragraph 14 of the plaint filed in Title Suit No. 54/1994 along with the relief claimed in the said suit. 12. It has further been submitted by the learned senior counsel for the Defendant that in the absence of any contract between the parties for payment of any penal interest at the rate of 25 per cent per annum, as claimed by the Plaintiff in the plaint, the learned trial Judge ought not to have decreed the suit of the Plaintiff to the tune of Rs. 9,45,459 being the penal interest for the period from 9th October, 1993 to 31st May, 1997 by holding that the agreement executed between the parties on 19th May, 1992 (Exhibit-2) provides for payment of such a penal interest. Referring to different clauses of the Exhibit-2 agreement, Mr. Deb has submitted that there is no stipulation in such agreement relating to the payment of any penal interest. Referring to different clauses of the Exhibit-2 agreement, Mr. Deb has submitted that there is no stipulation in such agreement relating to the payment of any penal interest. Hence, according to the learned senior counsel, in any case, the Plaintiff's suit for penal interest to the tune of Rs. 9,45,459 cannot be decreed. 13. Referring to the averments made in paragraph 9 of the plaint, it has also been submitted that the debit notes for Rs. 9,662 having been raised by the Plaintiff on 20th May, 1995 and 23rd May, 1995 (Exhibits-14 and 15, respectively), those cannot be the existing liability on the date of filing of the title suit No. 54/1994 by the Defendant and hence, it cannot be construed that the Defendant had acknowledged such liability to the tune of Rs. 9,662. The learned senior counsel, therefore, submits that the learned court below also ought not to have decreed the suit of the Plaintiff in respect of the said amount of Rs. 9,662. 14. The learned senior counsel further submits that though the Plaintiff in paragraph 9 of the plaint has made mention about non deposit of the sale proceed for 1st October, 1993 and 2nd October, 1993, the Plaintiff having not prayed for any decree in respect of the sale proceed for those 2(two) days, the learned court below ought not to have adjusted the amount of Rs. 4,80,000, which amount the Plaintiff has secured by invoking the Bank guarantee, in the absence of any claim by the Plaintiff in the plaint and without there being any proof relating to the sale proceed for 2(two) days. According to the learned senior counsel, the learned trial court on the basis of the sale of air tickets on the previous days has presumed that the Defendant must have received the sale proceed of Rs. 2,00,000 on 1st October, 1993 and 2nd October, 1993 and has adjusted the remaining amount of Rs. 2,80,000, out of the Bank guarantee invoked, towards the penal interest of 25%. According to the learned senior counsel, even assuming the Plaintiff claims any specific amount for those 2 (two) days, they, for the purpose of obtaining a decree, have to prove the exact amount of the sale proceed, which the Plaintiff has failed to do. 15. 2,80,000, out of the Bank guarantee invoked, towards the penal interest of 25%. According to the learned senior counsel, even assuming the Plaintiff claims any specific amount for those 2 (two) days, they, for the purpose of obtaining a decree, have to prove the exact amount of the sale proceed, which the Plaintiff has failed to do. 15. The learned senior counsel in support of his contention relating to the acknowledgement of the existing liability within the meaning of Section 18 of the Limitation Act, has placed reliance on the decisions of the Apex Court in Shapoor Fredoom Mazda v. Durga Prosad Chamaria and Ors., AIR 1961 SC 1236 ; in Valliamma Champaka Pillai v. Sivathanu Pillai and Ors., (1979) 4 SCC 429 and in J.C. Budhraja v. Chairman, Orissa Mining Corporation Ltd. and Anr., (2008) 2 SCC 444 . 16. Relating to the RFA No. 41/2001 filed by the Plaintiff, it has been submitted by Mr. Deb, the learned senior counsel for the Defendant that though the Plaintiff in the plaint claimed an amount of Rs. 21,22,978 towards the value of 338 number of single coupon tickets for the longest sector, which, according to the Plaintiff, though were given to the Defendant but having been returned to the Plaintiff after termination of the agency, the Plaintiff could not prove by adducing any documentary evidence about issuance of such numbers of single coupon tickets to the Defendant and as such, the learned trial Judge has rightly rejected the claim of the Plaintiff in that respect. Mr. Deb further submits that consequently the Plaintiff is also not entitled to any penal interest at the rate of 25 per cent on the said amount as claimed by it, more so when there is no contract between the parties relating to the payment of penal interest. 17. Mr. Mr. Deb further submits that consequently the Plaintiff is also not entitled to any penal interest at the rate of 25 per cent on the said amount as claimed by it, more so when there is no contract between the parties relating to the payment of penal interest. 17. Mr. Deb, the learned senior counsel for the Defendant relating to the interest awarded by the learned Civil Judge has submitted that though the Plaintiff has claimed that the transaction between the Plaintiff and the Defendant is a commercial transaction and as such, they are entitled to the interest at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions, in the absence of any evidence adduced by the Plaintiff relating to the rate of interest charged by Nationalised Bank in a commercial transaction, the Plaintiff at the most may be entitled to the interest at the rate of 6 per cent per annum in view of Section 34, of the Code of Civil Procedure and hence the learned court below was not justified in awarding interest at the rate of 10 per cent per annum. 18. Mr. Chakraborty, the learned Counsel for the Plaintiff, on the other hand, submits that it is evident from the averments made in paragraph 14 of the plaint filed by the Defendant in title suit No. 54/1994 that he had acknowledged in writing his liabilities as on 30th September, 1993 towards the Plaintiff and as such, the learned court below has rightly held that the suit of the Plaintiff is not barred by law of limitation. The learned Counsel further submits that it is also evident from the communications dated 10th March, 1994 (Exhibit-6) as well as 4th (6th) June, 1994 (Exhibit-7) issued by the Officers of the Plaintiff to the Defendant that the Defendant was informed about the outstanding liability up to the second fortnight of September, 1993, i.e., on 30th September, 1993, and such communications being prior to filing of title suit No. 54/1994 by the Defendant, i.e., prior to 30th June, 1994, the Defendant by their pleadings in the said suit had acknowledged the liability within the meaning of Section 18 of the Limitation Act. Referring to Explanation (a) to Section 18 of the Limitation Act, it has been submitted by Mr. Referring to Explanation (a) to Section 18 of the Limitation Act, it has been submitted by Mr. Chakraborty that to constitute the acknowledgement within the meaning of the said provision of law, it is not necessary that the person acknowledging must specify the exact nature of the property or right and in the instant case, in paragraph 14 of the plaint filed in title suit No. 54/1994 since the Defendant had admitted that he has failed to make the deposit of the dues for the fortnight ending on 30th September, 1993, he has acknowledged his liability as on that dates and, hence, the Plaintiff's suit for realisation of the outstanding amount as on 30th September, 1993 amounting to Rs. 10,37,092 cannot be held to be barred by the law of limitation. 19. Regarding the penal interest at the rate of 25 per cent, as claimed by the Plaintiff and decreed by the learned court below, the learned Counsel, however, has fairly submitted that though the learned court below has awarded such penal interest on the basis of the assumption that the Exhibit-2 agreement provides for imposition of such penal interest, in fact the said Exhibit-2 agreement does not contain any such stipulation. The learned Counsel, however, submits that even if the Plaintiff is not entitled to the penal interest, the transaction being commercial one, they are entitled to the interest at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions, in view of Section 34 of the Code of Civil Procedure. 20. Mr. Chakraborty further submits that it appears from the debit notes (Exhibits-14 and 15) for Rs. 9,662 that those were issued on 20th May, 1994 and 23rd May, 1994 and not on 20th May, 1995 and 23rd May, 1995 as Wrongly mentioned in the plaint. According to the learned Counsel, those being prior to the filing of the Title Suit No. 54/1994 by the Defendant, wherein all the existing liabilities up to 30th September, 1993 has been acknowledged, the Defendant is also liable to pay the said amount of Rs. 9,662. According to the learned Counsel, those being prior to the filing of the Title Suit No. 54/1994 by the Defendant, wherein all the existing liabilities up to 30th September, 1993 has been acknowledged, the Defendant is also liable to pay the said amount of Rs. 9,662. According to the learned Counsel, even assuming that the said debit notes were dated 20th May, 1995 and 23rd May, 1995, the present suit having been filed on 2nd June, 1997, it cannot be held to be barred by law of limitation, the same having filed within 3(three) years from the date of issuance of such debit notes. 21. Relating to the adjustment of the amount of Rs. 4,80,000, which the Plaintiff has realised by invoking the Bank guarantee given by the Defendant, it has been submitted by the learned Counsel that there being a claim of the Plaintiff in the plaint towards the sale proceed received by the Defendant on 1st October, 1993 and 2nd October, 1993, the said amount has rightly been adjusted by the learned Civil Judge. 22. Mr. Chakraborty relating to RFA No. 41/2001 contends that the learned trial court ought not to have refused to pass a decree for an amount of Rs. 21,22,978 towards the value of 338 numbers of single coupon tickets for the longest sector, there being oral evidence relating to handing over of such tickets to the Defendant and non-return of either the unused tickets or payment of the sale proceeds of such tickets. According to the learned Counsel, the learned trial court ought to have decreed the said amount, in, view of the oral evidence adduced by the Plaintiff, together with the interest at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions, the present transaction between the Plaintiff and the Defendant being a commercial transaction. 23. We have considered the submissions of the learned Counsel for the parties and also perused the pleadings of the parties apart from the evidences, both oral and documentary, adduced by them as well as the judgment, and decree passed by the learned trial court. No argument, however, has been advanced by the learned senior counsel appearing for the Defendant relating to its liability to the tune of Rs. 10,37,092 towards the sale proceed for the fortnight ending on 30th September, 1993 and for Rs. No argument, however, has been advanced by the learned senior counsel appearing for the Defendant relating to its liability to the tune of Rs. 10,37,092 towards the sale proceed for the fortnight ending on 30th September, 1993 and for Rs. 9,662 against the debit notes (Exhibits-14 and 15), except raising the plea of limitation for claiming such amount. Argument, however, has been advanced to the effect that the Plaintiff is not entitled to penal interest at the rate of 25 per cent as claimed, on the said amount of Rs. 10,37,092 in the absence of any contract in that respect. As noticed above, the learned senior counsel has also advanced argument challenging the claim for Rs. 21,22,978 and also the penal interest at the rate of 25 per cent claimed on the said amount contending that no decree has rightly been passed by the learned trial court in the absence of any documentary proof in that respect. 24. Order 41 Rule 31 of the Code of Civil Procedure requires formulation of the points for determination by the appellate court in an appeal filed from the original decree. It also requires giving decision thereon and to record reasons for such decision. Based on the arguments advanced by the learned Counsel for the parties and the judgment and decree passed by the learned trial court, the following points for determination are formulated: (i) Whether there was an acknowledgement of the liability by the Defendant as on 30th September, 1993 in view of the averments made in the plaint filed by him in title suit No. 54/1994, so as to compute the period of limitation for filing the suit from the date of such acknowledgement, i.e., the date of filing of the suit, i.e., on 30.6.1994 and if so, to what extent? (ii) Whether in the absence of any stipulation in the contract dated 19th May, 1992 (Exhibit-2) between the parties, the Plaintiff is entitled to penal interest at the rate of 25 per cent per annum, as claimed by it and decreed by the learned trial court? (iii) Whether the Plaintiff is entitled to a decree for Rs. 21,22,978 towards the value of 338 numbers of single coupon tickets for longest sector @ Rs. 6281 per ticket together with the penal interest at the rate of 25 per cent on the said amount, as claimed by it in the plaint? (iii) Whether the Plaintiff is entitled to a decree for Rs. 21,22,978 towards the value of 338 numbers of single coupon tickets for longest sector @ Rs. 6281 per ticket together with the penal interest at the rate of 25 per cent on the said amount, as claimed by it in the plaint? (iv) Whether, the transaction between the Plaintiff and the Defendant being a commercial transaction, the Plaintiff is entitled to the pendentelite and future interest at the rate at which the moneys are lent or advanced by Nationalised Banks in relation to commercial transactions, in the absence of any proof relating to such rate of interest of the Nationalised Bank? Point No. (i) 25. The Plaintiff claimed an amount of Rs. 10,37,092 as due and payable by the Defendant towards the sale proceed for the fortnight ending on 30th September, 1993. It is not in dispute that the Plaintiff was appointed as agent on 16th December, 1991 (Exhibit-1) and an agreement between the Plaintiff and the Defendant was executed on 19th May, 1992 (Exhibit-2). According to the Plaintiff, the aforesaid amount though due and payable for the period ending on 30th September, 1993, has not been paid despite the demand made and for such non-payment, the agency was terminated. There is no dispute relating to the date of termination of the agreement on 2nd October, 1993. The Plaintiff instituted the present suit on 2nd June, 1997. Article 3 of the Schedule appended to the Limitation Act provides the period of 3 (three) years for filing a suit relating to account by the principal against its agent for movable property received by the latter and not accounted for, from the date when the account is, during the continuance of the agency, demanded and refused or, where no such demand is made, when the agency is terminated. The suit filed by the Plaintiff, but for the alleged acknowledgement of the liability within the meaning of Section 18 of the Limitation Act, is apparently barred by law of limitation, the same having not been filed within 3 (three) years either from the date of making the demand or from the date of termination of agency, i.e., 2nd October, 1993. The question which, therefore, requires determination is whether there was any acknowledgement of existing liabilities by the Defendant and if so, the extent, thereof. 26. The question which, therefore, requires determination is whether there was any acknowledgement of existing liabilities by the Defendant and if so, the extent, thereof. 26. The Defendant as Plaintiff earlier instituted title suit No. 54/1994 in the court of learned Sadar Munsiff, Agartala at West Tripura, against the Indian Airlines Ltd., (the original Plaintiff) and it's Officers for declaration and permanent injunction. In paragraph 14 of the plaint filed in the said suit, it has been pleaded that the Plaintiff therein, who is a tribal and not well conversant with the agency business has failed to make deposit of the dues for the fortnight ending on 30th September, 1994 (ought to have been 30th September, 1993) and 15th October, 1993. The said plaint signed and filed by the present Defendant in title suit No. 54/1994 has been proved as Exhibit-8. Paragraph 14 of the plaint filed in the said suit is extracted below: 14. That the Plaintiff never attempted to evade his liabilities but as the Plaintiff is a tribal and not well conversant with the agency business of the Indian Airlines and lastly for non-availability of the agreement the Plaintiff failed to be apprised himself as to the real terms and conditions of his agency and the rights and liabilities of the parties concerned, and as a result, the Plaintiff failed to make deposit of the dues for the fortnight ending 30.3.1994 and 15.10.1993. Since the Defendant No. 4 seized all the C.V.D. the Plaintiff could not calculate the real amount of outstanding, and as such the adjustment could not be done. 27. It appears from the pleadings of the Defendant in the said suit that he has admitted that he failed to make the deposit of the dues for the fortnight ending 30th September, 1993. The Plaintiff in the present suit claimed the amount of Rs. 10,37,092 for the fortnight ending 30th September, 1993. That apart, it also appears from the communications dated 10th March, 1994 (Exhibit-6) and 4th (6th) June, 1994 (Exhbit-7) issued by the Officers of the Plaintiff to the Defendant that the Defendant was informed about the outstanding amount for the fortnight ending 30th September, 1993 and he was requested to clear the said outstanding dues. 28. Section 18 of the Limitation Act, 1963 provides the effect of acknowledgement of liability in writing. 28. Section 18 of the Limitation Act, 1963 provides the effect of acknowledgement of liability in writing. Sub-section (1) thereof provides that where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement 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, of by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed. Explanation (a) to Section 18 further provides that for the purpose of the said Section an acknowledgement may be sufficient though it omits to specify the exact nature of the property or right or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off, or is addressed to a person other than a person entitled to the property or right. 29. The requirement of a valid acknowledgement is that it must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. The word used in the acknowledgement must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words and if the statement is fairly clear, then the intention to admit jural relationship may be implied from it. However, in construing words used in the statements made in writing on which a plea of acknowledgement rests oral evidence has to be expressly, excluded but surrounding circumstances shall always be considered [Shapoor Fredoom Mazda (supra)]. 30. The Apex Court in Valliamma Champaka Pillai (supra) while dealing with the provision of Section 18 of the Limitation Act has also observed that one of the essential requirements for a valid acknowledgement is that the writing concerned must contain an admission of a subsisting liability, i.e., liability subsisting on the date of acknowledgement in writing. 30. The Apex Court in Valliamma Champaka Pillai (supra) while dealing with the provision of Section 18 of the Limitation Act has also observed that one of the essential requirements for a valid acknowledgement is that the writing concerned must contain an admission of a subsisting liability, i.e., liability subsisting on the date of acknowledgement in writing. It has further been observed that a mere admission of a past liability is not sufficient to constitute such an acknowledgement and hence a mere recital in a document as to the existence of a past liability, coupled with a statement of its discharge, does not constitute an acknowledgement within the meaning of Section 18of the Limitation Act. The said view has again been reiterated by the Apex Court in J.C. Budhraja (supra). In the said case, it has further been opined that an acknowledgement made with reference to a liability, cannot extend limitation for a time barred liability or a claim that was not made at the time of acknowledgement or some other liability relating to other transactions. 31. Whether by writing a party to a suit acknowledges his/her liability depends upon the contents of the document given in writing. In the instant case, it is evident from the averments made in paragraph 14 of the plaint filed by the Defendant in title suit No. 54/1994 that there was an acknowledgement of his liability for the period ending 30th September, 1993, which, according to him, he could not pay as he is a poor tribal and did not know the intricacies of the agency. The clear intention of the Defendant to acknowledge such liability is also apparent from the contents of paragraph 14 of the signed and verified plaint filed by him in title suit No. 54/1994. It is not necessary to state the exact amount of liability while the Defendant acknowledges in writing any liability. When the Defendant acknowledged his liability for the period ending 30th September, 1993, which was a subsisting liability on the date of filing of the said suit by him, it amounts to the acknowledgement in writing within the meaning of Section 18 of the Limitation Act. When the Defendant acknowledged his liability for the period ending 30th September, 1993, which was a subsisting liability on the date of filing of the said suit by him, it amounts to the acknowledgement in writing within the meaning of Section 18 of the Limitation Act. The said plaint was filed on 30th June, 1994, i.e., before expiry of the period of 3 (three) years from the date of termination of the agreement on 2nd October, 1993 as well as from the date of issuance of the communications dated 10th March, 1994 (Exhibit-6) and dated 4th (6th) June, 1994 (Exhibit-7). The period of limitation for filing of the suit by the Plaintiff, therefore, has to be computed from the date of filing of the plaint in title suit No. 54/1994, i.e., from 30th June, 1994, and the present suit having been filed on 2nd June, 1997, the learned Trial Judge has rightly held the suit of the Plaintiff as not barred by time, in view of the provision of Section 18 of the Limitation Act. 32. This leads to the question as to the extent of the acknowledgement. According to the Defendant, the suit being relating to the attempted invocation of the Bank guarantee by the Indian Airlines Limited, the acknowledgement, if any, is relating to the extent of the amount covered by the Bank guarantee, i.e., Rs. 4,80,000 and since admittedly the said amount has been received by the Plaintiff by invoking the Bank guarantee, the Plaintiff is not entitled to any decree. The said contention, however, cannot be accepted in view of the specific words, as quoted above, used in paragraph 14 of the plaint filed by the Defendant in title suit No. 54/1994. Hence, such acknowledgement has to be taken as the acknowledgement of the liability for the fortnight ending 30th September, 1993 amounting to Rs. 10,37,092. 33. The Plaintiff in the plaint, apart from the amount of Rs. 10,37,092 claimed towards the outstanding amount payable for the fortnight ending 30th September, 1993, has also claimed an amount of Rs. 9,662 against the 2 (two) debit notes. 10,37,092. 33. The Plaintiff in the plaint, apart from the amount of Rs. 10,37,092 claimed towards the outstanding amount payable for the fortnight ending 30th September, 1993, has also claimed an amount of Rs. 9,662 against the 2 (two) debit notes. Though in paragraph 9 of the plaint, it has been pleaded that such debit notes were issued on 20th May, 1995 and 23rd May, 1995 (Exhibits-14 and 15, respectively), it appears from the said exhibits that those were dated 20th May, 1994 and 23rd May, 1994 and, hence, it has to be taken as the claim of the Plaintiff against the debit notes dated 20th May, 1994 and 23rd May, 1994, the said debit notes having been marked as Exhibits without any objection by the Defendant. Those two debit notes (Exhibits-14 and 15), however, do not disclose whether the amount of Rs. 9,662 claimed by the said debit notes relates to any liability for the fortnight ending 30th September, 1993, as acknowledged by the Defendant, as nothing has been mentioned relating to the period for which the debit notes for the said amount were issued. The acknowledgement, within the meaning of Section 18 of the Limitation Act, being in respect of the existing liability, in the absence of any proof as to whether those debit notes relate to the period fortnight ending 30th September, 1993, no decree can be passed for the said amount of Rs. 9,662. 34. It appears from the impugned judgment passed by the learned Trial Judge that an amount of Rs. 4,80,000, which was received by the Plaintiff by invoking the Bank guarantee for that amount, has been adjusted against the sale proceeds of 1st October 1993 and 2nd October, 1993 together with the penal interest at the rate of 25 per cent per annum. The learned Trial Judge, on the basis of the sale proceed on the earlier days, has presumed that the Defendant must have received the sale proceed of Rs. 1,00,000 (rupees one lakh) per day for those 2 (two) days. The learned Trial Judge, on the basis of the sale proceed on the earlier days, has presumed that the Defendant must have received the sale proceed of Rs. 1,00,000 (rupees one lakh) per day for those 2 (two) days. The Plaintiff in paragraph 9 of the plaint though has claimed that apart from the liability for the period ending 30th September, 1993 the Defendant has also not paid the amount towards the sale proceed of 1st October, 1993 and 2nd October, 1993, in the plaint it has neither been stipulated what was the exact amount of such sale proceed, which according to the Plaintiff, is due and payable by the Defendant to it nor claimed any amount towards the sale proceed of those 2 (two) days. The Plaintiff having not claimed any specific amount in the plaint and also having not laid any evidence to that effect, is not entitled to any decree in that respect. The learned Trial Judge, in spite of that, has adjusted the said amount of Rs. 4,80,000 against the sale proceed as well as the penal interest for those 2 (two) days, i.e., 1st October, 1993 and 2nd October, 1993. 35. From the aforesaid discussion, it is, therefore, evident that the Plaintiff is entitled to a decree for Rs. 10,37,092 towards the sale proceed for the fortnight ending 30th September, 1993. It being the case of the Plaintiff in the amended plaint that they have received the amount of Rs. 4,80,000 from the Bank by invoking the Bank guarantee given by the Defendant, the said amount of Rs. 4,80,000 has to be deducted from the amount of Rs. 10,37,092. The Plaintiff is, therefore, entitled to a decree for Rs. 5,57,092 (Rs. 10,37,092, Rs. 4,80,000). Point No. (ii): 36. The learned trial court has passed a decree for Rs. 9,45,459 towards the penal interest at the rate of 25 per cent per annum on Rs. 10,37,092, i.e., the amount due and payable by the Defendant to the Plaintiff towards the sale in respect of the fortnight ending 30th September, 1993, by holding that there is a stipulation in the contract (Exhibit-2) between the parties relating to payment of such penal interest. As discussed above, the learned Counsel appearing for the Plaintiff has fairly submitted that in fact there is no such stipulation in the said contract (Exhibit-2) between the parties. As discussed above, the learned Counsel appearing for the Plaintiff has fairly submitted that in fact there is no such stipulation in the said contract (Exhibit-2) between the parties. In the absence of any contract in that regard, the Plaintiff is not entitled to the said amount of Rs. 9,45,459 towards the penal interest at the rate of 25 per cent per annum. The Plaintiff has also not proved any contracted rate of interest to be levied in the event of failure to pay the outstanding amount by the Defendant within any stipulated time. The decree passed for the said amount cannot, therefore, be sustained. The Plaintiff, however, would be entitled to the pendentilite and future interest on the aforesaid amount of Rs. 5,57,092 Under Section 34 of the Civil Procedure. Point No. (iii): 37. The Plaintiff in the plaint has also claimed an amount of Rs. 21,22,978 towards the value of 338 numbers of single coupon tickets for the longest sectors at the rate of Rs. 6281 per ticket, apart from claiming a further amount of Rs. 19,35,400 towards the penal interest at the rate of 25 per cent on the said amount totalling Rs. 40,58,378. The Plaintiff though has claimed that 338 numbers of single coupon tickets for longest sector were handed over to the Defendant during continuance of the agency, which, upon termination of the agency, neither been returned to the Plaintiff nor the sale proceed thereof has been deposited with the Plaintiff, no documentary evidence could be laid to prove that such numbers of single coupon tickets were ever issued to the Defendant during the continuance of the agency. The oral evidence relating to the issuance of such tickets, in the absence of any documentary evidence, cannot be accepted. The Plaintiff being a company registered under the Companies Act, has to maintain the records of issuance of such tickets, which record the Plaintiff has failed to produce and proved before the learned court below and as such, the Plaintiff is not entitled to the said amount of Rs. 21,22,978. Consequently, the Plaintiff is also not entitled to the amount of Rs. 21,22,978. Consequently, the Plaintiff is also not entitled to the amount of Rs. 19,35,400 towards the penal interest at the rate of 25 per cent per annum on the aforesaid amount, on the ground that the Plaintiff has failed to prove the issuance of such tickets to the Defendant and also on the ground that there is no stipulation in the contract (Exhibit-2) between the parties for charging penal interest at the rate of 25 per cent per annum. Such claim of the Plaintiff, therefore, has rightly been rejected by the learned Trial Judge. Point No. (iv): 38. The court in case of passing a decree for payment of money, may also order payment of pendentilite interest, at such rate as the court deems reasonable to be paid on the principal amount, i.e., from the date of filing of the suit till the date of the decree, in addition to any interest on such principal sum for any period prior to the institution of the suit. The court may also pass an order for further interest at such rate not exceeding 6% per annum as the court deems reasonable on such principal amount, from the date of the decree to the date of payment or to such earlier date as the court deems fit. But where the liability in relation to the principal amount had arisen out of a commercial transaction, the court may direct payment of such further interest exceeding 6% per annum and at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions, in the absence of any contractual rate of interest. Explanation (2) of Section 34 defines the Nationalised Bank as a corresponding new Bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Explanation (2) provides that a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring liability. 39. In the case in hand, it is not in dispute that the liability of the Defendant is connected with his trade or business and as such, is a commercial transaction within the meaning of Section 34 of the Code of Civil Procedure. As held above, there is no proof of the contractual rate of interest payable by the Defendant in case of his default in clearing the outstanding dues. As held above, there is no proof of the contractual rate of interest payable by the Defendant in case of his default in clearing the outstanding dues. In the absence of such a contract, the court may order for the payment of further interest on, the aforesaid amount of Rs. 5,57,092 at the rate at which moneys are lent or advanced by Nationalised Banks in relation to commercial transactions, subject to the availability of materials on record relating to such rate of interest. The Plaintiff, however, has not led any evidence relating to the rate of interest charged by Nationalised Bank in relation to commercial transaction. In the absence of any evidence to that effect, the court may pass the order for further interest, i.e., future interest, i.e., from the date of the decree to the date of payment, at the rate not exceeding 6 per cent, as stipulated in Section 34 of the Code of Civil Procedure, or to such earlier date as the court things fit. 40. In the instant case, the learned Trial Judge has awarded the pendentilite interest, i.e., from the date of filing of the suit (2nd June, 1997) till the date of the decree and also the further/future interest, i.e., from the date of the decree till the date of payment at the rate of 10 per cent per annum, along with the direction to pay the proportionate cost of the suit. As noticed above, there being no proof relating to the rate of interest charged by the Nationalised Bank in relation to commercial transaction, the Plaintiff is entitled to further interest, i.e., interest from the date of the decree till the date of realisation at the rate not exceeding 6 per cent per annum. Keeping in view the entire facts and circumstances of the cases, we are of the view that the Plaintiff is entitled to pendentilite interest, i.e., interest from the date of filing of the suit till the date of the decree, as well as further interest, i.e., the interest from the date of the decree till the date of payment at the rate of 6 per cent per annum, apart from the proportionate cost of the suit from the Defendant. 41. In view of the above, the Plaintiff, is entitled to a sum of Rs. 41. In view of the above, the Plaintiff, is entitled to a sum of Rs. 5,57,092 with pendentilite and further interest at the rate of 6 per cent, per annum together with the proportionate cost. The suit of the Plaintiff is accordingly decreed by modifying the decree passed by the learned Trial Judge. 42. The RFA No. 33/2001 is partly allowed. RFA No. 41/2001 stands dismissed.