Judgment 1. The defendant in O.S.No.582 of 1987 on the file of the II Additional Subordinate Court, Coimbatore, is the appellant. 2. The plaintiff/respondent filed the suit for recovery of Rs.64,785-88 and the suit was decreed as prayed for and the counter claim made by the appellant was partly allowed and the plaintiff/respondent herein was directed to pay a sum of Rs.12,575-50 to the appellant with interest at the rate of 18% per annum and the appellant was directed to pay the balance amount after deducting a sum of Rs.12,575-50 from the date of decree passed in favour of the plaintiff/respondent. Aggrieved by the same, this appeal is filed by the defendant. 3. The learned counsel for the appellant submitted that the plaintiff proceeded on the basis that the appellant was appointed as an Agent by the respondent/plaintiff and the liability was fastened on the basis of Exs.A10 to A16. He submitted that the appellant was appointed as an Agent for collecting and delivering of the tyres to ELGITEAT Procured Retreading Plant and he was not appointed as an Agent for collecting the charges from the persons who entrust the tyres for retreading. He further submitted that it is also evident by Ex.B1 the appointment letter and as per Ex.B1 he was only appointed as an Agent for collecting and delivering of the tyres and he only helped the respondent in collecting the retreading charges and he was entitled to get commission for collecting the tyres. He further submitted that the trial Court without properly appreciating Exs.A10 to A16 erred in holding that the appellant was appointed as an Agent on behalf of the respondent/plaintiff and he also admitted his liability to pay the charges. The learned counsel for the appellant disputed the contents of Exs.A10 to A16 as interpreted by the trial Court and according to him the appellant did not admit any liability as stated by the trial Court in the Judgment and he only undertaken to assist the respondent/plaintiff in the matter of collection of retreading charges from the owners of tyres and therefore he cannot be mulcted with liability for non-payment of those charges. 4. 4. The learned counsel for the appellant further submitted that the respondent/plaintiff got back the Exhibits filed by it before the trial Court by filing an application before the trial Court and later on did not reproduce the same or substitute the same with certified copies and therefore the appellant is not able to substantiate his case with reference to Exs.A10 to A16. 5. The respondent was served and his name is also printed in the cause list and there is no appearance for the respondent. Hence the respondent is set exparte. 6. It is seen from the records that the respondent/plaintiff got back the Exhibits from the trial Court after the trial was over and undertook to replace the certified copies or return the same whenever demanded by the trial Court and the trial Court issued notice to the respondent/plaintiff to return the documents received by it. An affidavit was filed on behalf of the respondent/plaintiff stating that those documents could not be traced and they were lost. Therefore, this Court is not able to find out the truthfulness of the respondent's case in the absence of any documents filed by the respondent/plaintiff before the trial Court. 7. It is seen from Ex.B1 that the appellant was appointed as an Agent for collecting and delivering of tyres for which he was entitled to claim commission of Rs.30/- and Rs.40/-for various types of tyres collected and delivered by him. Being the first appellate Court without having access to the documents filed by the respondent/plaintiff, this Court is not able to accept the contention of the trial Court regarding the contents of Exs.A10 to A16 relied upon by the trial Court to arrive at a conclusion that the appellant is liable to pay the amount claimed by the respondent/plaintiff. Further, the respondent/plaintiff was responsible for taking back the documents from the trial Court and it is their duty to return the same whenever demanded. As the documents were lost by the respondent/plaintiff, the benefit of doubt has to be given to the appellant and therefore the Judgment and Decree of the trial Court has to be set aside. I therefore set aside the findings of the trial Court that the appellant is liable to pay the plaint claim to the respondent/plaintiff. 8. As the documents were lost by the respondent/plaintiff, the benefit of doubt has to be given to the appellant and therefore the Judgment and Decree of the trial Court has to be set aside. I therefore set aside the findings of the trial Court that the appellant is liable to pay the plaint claim to the respondent/plaintiff. 8. The learned counsel for the appellant submitted that the appellant made a counter claim of Rs.33,503/- and the trial Court awarded only Rs.12,575-50 and the appellant is entitled to claim the entire amount claimed by him. The trial Court considered this aspect in Para 11 of the Judgment and held that the appellant claimed Rs.16,517-50 as a commission payable by the respondent, Rs.5,110/-as additional commission and also Rs.5,000/- representing the deposit made by him and claimed a sum of Rs.26,267-50 and calculating interest on that amount at the rate of 18% per annum from 1.5.1986 to 12.11.1987 claimed a sum of Rs.7,235-50 and totally claimed Rs.33,503/-. It is seen from Exs.B6 to B38 that those exhibits relate to the accounts in respect of commission and additional commission. It is also seen from those exhibits that till June 1985 the commission payable to the appellant was adjusted from the amount due from the appellant to the plaintiff. From December 1985 to April 1986, the commission and additional commission was calculated at Rs.8,100/-and that was given credit as per Ex.A8, the commission payable from July 1985 to December 1985 namely Rs.7,575-50 was not paid. Therefore, the trial Court directed the payment of Rs.7,575-50 payable towards commission and deposit of Rs.5,000/-and held that the respondent/plaintiff is liable to pay Rs.12,575-50 to the appellant with interest at the rate of 18% per annum and I do not find any infirmity in the findings of the trial Court. Hence, I hold that the appellant is not entitled to any amount as claimed by him in this appeal towards counter claim. 9. In the result, the Appeal Suit is partly allowed and the Judgment of the trial Court regarding the claim made by the respondent/plaintiff against the appellant is set aside and the appeal is partly allowed to that extent and the decree passed in favour of the appellant regarding the counter claim is confirmed. 10. 9. In the result, the Appeal Suit is partly allowed and the Judgment of the trial Court regarding the claim made by the respondent/plaintiff against the appellant is set aside and the appeal is partly allowed to that extent and the decree passed in favour of the appellant regarding the counter claim is confirmed. 10. It is submitted by the learned counsel for the appellant that as per the order passed in the stay application in C.M.P.No.18869 of 1993 in A.S.No.1182 of 1993, he deposited a sum of Rs.13,000/- to the credit of O.S.No.582 of 1987 on the file of the II Additional Subordinate Court, Coimbatore and having regard to the fact that the appeal is partly allowed and the Judgment of the trial Court in respect of the decree passed against the appellant is set aside, the said amount may be directed to be paid to the appellant. I am in complete agreement with the learned counsel for the appellant and the appellant is entitled to withdraw a sum of Rs.13,000/-with accrued interest deposited by him as per the direction of this Court in C.M.P.No.18869 of 1993 in A.S.No.1182 of 1993. In the event of respondent/plaintiff withdrawing the said amount as per the direction of this Court, liberty is given to the appellant and the appellant is entitled to proceed against the respondent/plaintiff for recovery of the said amount with accrued interest and subsequent interest also. With the above direction, the Appeal Suit is partly allowed.