P. Koteswaramma vs Star Electrical Industries and Others

P.S. Narayana, J.—P. Koteswaramma, the unsuccessful plaintiff in O.S. No. 594 of 1984 on the file of the III Additional Judge, City Civil Court, Hyderabad, aggrieved by the judgment and decree made in the said suit dated 26-4-1994 dismissing the suit, had preferred the present appeal.

Sri Ganesh Rao, the learned Counsel representing the appellant-plaintiff had taken this Court through the evidence of P.Ws.1 and 2 and also would maintain that to examine the plaintiff an application was moved and the said application was dismissed and also an application was moved relating to the priority of examination of witnesses and the said application was also dismissed. The learned Counsel also would submit that however P.W.1, the manager of plaintiff concern, and P.W.2, the plaintiff''s brother, were examined. On behalf of the defendants D.Ws.1 and 2 were examined. D.W.1 is the second defendant and D.W.2 is the Manager of the Punjab National Bank. The learned Counsel would submit that the signature in Ex.A3 and Ex.A4 and the very handwriting in Ex.A5 are that of the second defendant is not in serious controversy. The learned Counsel also would submit that the defence taken that it is in relation to some third parry transaction-Jagga Rao''s transaction definitely cannot be believed in the light of facts and circumstances and would also maintain that the findings in this regard recorded by the trial Court definitely are absurd findings. The Counsel also had taken this Court through the documentary evidence available on record in general and Ex.B8-letter dated 8-2-1982 by the plaintiff''s firm to the second defendant in particular and would submit that some suspicion was there in the mind of the trial Court in regard to the contents of the Ex.B8 and this suspicion is definitely an ill-founded suspicion, especially in the light of the clear proof available in relation to Exs.A3, A4 and A5. The learned Counsel also had taken this Court through Ex.X series and the evidence of D.W.2 in this regard. Ultimately, the Counsel would conclude that the findings recorded by the trial Court cannot be sustained and the judgment and decree are liable to be set aside and suit to be decreed as prayed for.

Per contra, the Counsel representing the respondents-defendants had taken this Court through the findings recorded by the trial Court and would submit that in the absence of the evidence of the plaintiff, since there are certain admissions made by the P.W. 1 that she alone knows certain aspects, non-suiting of the plaintiff is well justified. The learned Counsel also had taken this Court through the evidence of D.W.1 and D.W.2 and Exs.B1 to B9 and also Exs.X1 to X7 in this regard.

Heard both the Counsel.

The parties will be referred as plaintiff and defendants as shown in O.S. No. 594 of 1984 for the purpose of convenience.

The plaintiff filed the suit for recovery of a sum of Rs. 71,245/- jointly and severally from defendants with future interest at 12% per annum on Rs. 46,800/- from the date of the suit till the date of realization and for future damages and for costs of the suit. It was pleaded in the plaint that the plaintiff is the sole proprietrix of ''Shree Venkateswara Engineering Works'' engaged in steel fabrication work and allied works having branch at Zamistanpur at Hyderabad. The first defendant is a firm and the second defendant represented the said firm and further defendants are partners of the said firm. It was also further pleaded that sometime prior to 8-5-1981, the second defendant approached the plaintiff firm on behalf of the first defendant and represented that he was acting on behalf of the first defendant firm and offered to supply to it N.S. Angles and M.S. Plates all confirming to I.S. specifications. The plaintiff firm had placed with the first defendant through the second defendant for the supply of 3 mt. of MS angles of the size 35 x 35 x 6 mm, 3 mt of MS angles of size 50 x 50 x 6 mm and 3 mt of MS plates of the size 6'' x 4'' x 12 mm thickness all confirming to Indian Standard Specifications. Thereupon the first defendant firm had supplied through the second defendant the said material under invoice and delivery challan both dated 8-5-1981, and the plaintiff received the same on 8-5-1998, at the ZAMISTANPUR Branch of the plaintiff and the Manager of the plaintiff while taking delivery of the same had endorsed on the delivery challan that the material supplied was received subject to verification of quantity and quality and kept the duplicate with him. The defendants were paid an amount of Rs. 16,800/- on 8-5-1981 and a further amount of Rs. 30,000/- on 9-5-1981 and defendant No. 2 also passed receipts for the said amount and that after receiving the said material, the plaintiff firm pledged the same with Punjab National Bank, Musheerabad, who in their turn kept the same under their lock and key in the godowns of the plaintiff. The plaintiff firm redeemed the said material on 29-5-1981 but when they were checked and tested for being used in fabrication work, it was detected that the material supplied by the defendants was not of the standard quality ordered by the plaintiff, and on the intimation by the plaintiff the 2nd defendant received back and lifted the material in question on behalf of the first defendant firm on 30-5-1981 and 31-5-1981. The defendants written a letter dated 1-6-1981, in this regard, undertaking to send the correct material within one week or refund the amount paid for the material, but the first defendant firm did not either replace the material or refund the amount of Rs. 46,800/-, as promised. Thereupon the plaintiff firm had sent a letter to the defendants on 4-7-1981 bringing to their notice the various facts referred to above and informing them that in the event of the first defendant not supplying the correct material or refunding the amount of Rs. 46,800/- together with bank interest, the plaintiff firm will be forced to take legal action, and after waiting for a reasonable time, the plaintiff sent a registered notice on 24-7-1981. Though the defendants had received the said registered notice, they did not either reply to the said notice, or comply with the demands therein. The plaintiff firm is also entitled to recover damages from the first defendant at 6% p.a., on the amount of Rs. 46,800/-, from 1-6-1981 onwards when the material was completely lifted by the defendants. It is also alleged that they are entitled to claim interest at 12% p.a., from 1-6-1981 onwards. Hence, the suit is filed for recovery of Rs. 46,800/- towards the amount received by the defendants, and for Rs. 16,280/-, towards interest on the said amount from 1-6-1981 to 24-4-1984 and also for damages of Rs. 8,140/-, at 6% p.a. on Rs. 46,800/- from 1-6-1981 till 24-4-1984 and also further amount of Rs. 25/- towards legal notice charges in all amounting to a total of Rs. 71,245/-.

Second defendant filed the written statement. The first defendant adopted the same. Defendants 3 to 5 did not file any written statement. It was pleaded in the written statement that to his knowledge one P.G.K. Murthy is the authoritative representative of the plaintiff''s firm. No doubt, second defendant denied that he is an active partner of the first defendant firm. It is pleaded that the first defendant delivered the material in question through representative Sri Venkateswarlu to the plaintiff''s firm on 8-5-1981. It was further pleaded that the plaintiff''s manager at Kavadiguda Branch took delivery of the above said material and made endorsement on the proforma invoice to the effect that 9 M.Ts. of steel materials were received by him on behalf of the plaintiff firm on 8-5-1981. The plaintiff firm retained with it the original and duplicate challans issued by defendant No. 1 stating that the original challan will have to be submitted to the plaintiff''s bank, the PUNJAB NATIONAL BANK, Musheerabad Branch, Hyderabad, while the duplicate challan was required by the plaintiff for record purpose. It is also alleged that the proforma invoice issued by the first defendant is not acceptable to the bank and therefore, requested the second defendant to furnish a sale invoice in duplicate, and defendant No. 2 did not agree to furnish the sale invoice in view of the fact that the materials in question were delivered to the plaintiff as loan. It is admitted that the value of the material delivered to the plaintiff was Rs. 45,000/-, and is now Rs. 58,000/-, but denied that any order was placed by the plaintiff with the first defendant either on 8-5-1981 or prior to or later, nor the material were sold to the plaintiff in pursuance of any order. It is also denied that the Manager of the plaintiff while taking delivery of the 9 M.Ts. of steel material had endorsed on the delivery challan to the effect that the materials were received subject to verification of quantity and quality and also denied that the plaintiff delivered duplicate copy of the delivery challan. But, contended that the plaintiff''s manager only made an endorsement on the proforma invoice to the effect that the materials were received by the plaintiff''s firm and that the plaintiff bank after inspection and verification of the materials received by the plaintiff firm, approving the quality and quantity of the material, had accepted the goods and released a sum of Rs. 30,000/- to the plaintiff from the cash credit hypothecation loan account. It is also further stated by defendant No. 2 in his written statement that the plaintiff''s bank would not have released the loan to the plaintiff in the event of any endorsements made on the delivery challans as alleged by the plaintiff, if the material is defective. It is also denied that the defendants issued any receipt for a sum of Rs. 16,800/- on 8-5-1981 and for further sum of Rs. 30,000/- on 9-5-1981 for the payments alleged to have been made by the plaintiff. It is categorically stated that the materials were delivered by the first defendant to the plaintiff on 8-5-1981 as loan with clear understanding that the said materials shall be returned within a week''s time and that second defendant agreed to loan the said materials to the plaintiff in pursuance of an arrangement arrived at between the parties namely P.G.K. Murthy, D. Jagga Rao and defendant No. 2 and denied that any materials were sold to the plaintiff''s firm, and hence the question of payment of advance of Rs. 16,800/-, as alleged, does not arise. Hence, the defendant No. 2 only issued proforma invoice in favour of the plaintiff''s firm instead of a sale invoice. The contentions of the plaintiff that the Bank kept the pledged goods under its lock and key in the godowns of the plaintiff''s firm at its ZAMISTANPUR BRANCH and they deemed on 29-5-1981 and the said material was checked and tested for being used in fabrication work etc., are false. It is also denied that as there were defects in the materials, the defendants lifted the same in two lots on 30-5-1981 and 31-5-1981 and that defendant No. 2 has given an undertaking letter that he will deliver the correct material. It is further pleaded that materials delivered by him is of good quality confirming to the Indian Standard Specifications, which were purchased by the defendants from the Raw Materials servicing center, Government of Andhra Pradesh, Sanathnagar, Hyderabad. It is also alleged that as admitted by the plaintiff, the letter in question is undated and does not contain the address of the defendants 1 and 2 and the said letter was obtained by the plaintiff under fraud and misrepresentation as such it is not binding on him. The allegation of the plaintiff that the legal notice was sent to the defendants 1 and 2 on 24-7-1981 through their Advocate is denied and alleged that defendant No. 2 never received any notice. It is also alleged that on or about 28-7-1981 the second defendant received a registered cover in Xerox copy of the legal notice dated 4-7-1981 issued to Sri D. Jagga Rao by Sri N. Raghavan, advocate, on behalf of P.G.K. Murthy was found. The defendant No. 2 was informed by said P.G.K. Murthy over phone that the Xerox copy of the reply notice was sent to the second defendant for the purpose of perusing with D. Jagga Rao for recovery of loan advanced by the former. However, the second defendant sent a reply to him (plaintiff) on 5-8-1981 stating that he was in no way concerned with the dispute between the plaintiff''s brother P.G.K. Murthy and D. Jagga Rao and the plaintiff should arrange to return the 9 M.Ts. of material to the first defendant.

The contention of the second defendant as per his written statement is that on 4-5-1981 Sri Dasari Jagga Rao, an Engineer working in A.P.S.E. Board at Suryapet, and who is a friend to the defendant, approached him with a request to arrange for a hand loan of Rs. 30,000/- which amount was stated to be required by him urgently to meet certain commitments. The said Jagga Rao further represented to the defendant that the said amount of Rs. 30,000/- was required for a temporary period of one week only and that he would repay the amount within the stipulated period of one week. As he was not in a position to pay the said amount, the said Jagga Rao was introduced to the plaintiff''s brother Sri P.G.K. Murthy who is also a friend to him and is known for more than 25 years, for arranging the said loan, Sri P.G.K. Murthy while agreeing to advance the said amount of Rs. 30,000/- to Sri Jagga Rao as loan on certain conditions stating that the plaintiff firm was enjoying credit facilities with Punjab National Bank, Musheerabad Branch, Hyderabad, and that he can avail loan from the said bank and pay the amount to Jagga Rao. It was further suggested by P.G.K. Murthy that if the amount was required by Jagga Rao urgently, the plaintiff will be able to arrange loan from the Bank in case the first defendant is agreeable to deliver the raw materials of Iron and Steel of value of Rs. 45,000/-. In view of the special nature of circumstances and the business dealings between him and the said two persons, he agreed to supply 9 M.Ts. of Steel Sections to the plaintiff as loan with a specific understanding that the said material shall have to be returned to the defendant within a week''s time. For the purpose of availing the loan from the Bank, the plaintiff wanted a sale invoice and an advance receipt for Rs. 16,800/-, to show that the plaintiff had contributed 2/3 value of the material as margin money without which loan cannot be sanctioned and released. The Defendant No. 2 expressed his unwillingness to furnish the said two documents in view of the fact that the first defendant is a partnership firm and that he had no authority to make any financial commitments. Further by issuing a sale invoice the transaction would attract sales tax of Rs. 1,800/- and the first defendant would be liable for the same, hence, he only issued proforma invoice. The said P.G.K Murthy had agreed to advance the loan of Rs. 30,000/- to Sri Jagga Rao on the terms and conditions.

(a) that the latter shall issue two postdated cheques for Rs. 20,000/- one in favour of R.V.L. Narsimha Rao and the other in favour of P.G.K. Murthy with dates 12-5-1981 and 15-5-1981 respectively, and it was further stipulated that Sri Jagga Rao shall have to pay the amounts by manner of cash that the post-dated cheques were taken merely as conditional security for the loan advanced;

(b) that Sri Jagga Rao shall also execute two promissory notes and two receipts for Rs. 30,000/-, one in favour of R.V.L. Narasimha Rao, and the other in favour of P.G.K. Murthy. The said documents were to be dated 8-5-1981 and 9-5-1981 respectively; and (c) that Sri Jagga Rao shall prevail upon the second defendant to do all things necessary and co-operate with the plaintiff for the purpose of availing loan from the bank.

It is further alleged that the said Jagga Rao agreed to the above terms and conditions and on the strength of the proforma invoice dated 8-5-1981 for Rs. 46,800/- and the temporary receipt dated 8-5-1981 for Rs. 16,800/- issued by the second defendant and upon delivering 9 M.Ts. of steel materials on 8-5-1981 under a delivery challan, the plaintiff got issued a pay order on 9-5-1981 for Rs. 30,000/- from Punjab National Bank. After obtaining the said pay order the second defendant consulted his bankers for encashing the same whereupon he was informed that the pay order will have to be sent for clearance and it would take 5 days for realization. As the money was required by Jagga Rao urgently, P.G.K. Murthy suggested that a current account be opened by the first defendant in the plaintiff''s bank so that the pay order could be encashed on the same day and pay cash to Jagga Rao. Accordingly, on 11-5-1981 he along with P.G.K. Murthy went to the plaintiff''s bank and a current account was opened upon the introduction arranged by P.G.K Murthy and the pay order was deposited, and a cheque book was also issued on 11-5-1981. P.G.K. Murthy obtained the signature of defendant No. 2 on one of the cheque leaves bearing No. 1070901 in blank and on 11-5-1981 itself a sum of Rs. 30,000/- was withdrawn from the plaintiff''s bank. It is also alleged that the Branch Manager of the Bank having come to know the illegal methods applied by the plaintiff in availing the cash credit loan from the bank insisted upon the plaintiff to pay back the entire loan amount of Rs. 30,000/- immediately and forthwith. The Branch Manager further warned the plaintiff that the bank would be constrained to cancel the financial limits sanctioned to it and also initiate recovery proceedings in case the loan account was not regularized. In view of these circumstances, P.G.K. Murthy sent a letter to him on 23-5-1981 written in his hand stating that the Branch Manager of the plaintiff bank was pressing for money and that the second defendant and Jagga Rao should meet him immediately with full amount as otherwise proceedings will be initiated through his advocate. It is also alleged that on 24-5-1981 P.G.K Murthy along with Sri S.N. Babu who is a common friend to both, visited the defendant''s house and represented to him that the plaintiff''s firm was facing serious problems in regard to the loan availed by the plaintiff from the Punjab National Bank. In view of the urgency in the matter and to ensure that the credit facilities granted to the plaintiff''s firm are not cancelled, P.G.K. Murthy requested this second defendant to furnish him a letter addressed to the plaintiff to the effect that pM.Ys. of steel materials were taken back by the first defendant as the materials were defective and that the first defendant would undertake to replace with correct materials or refund the money within a week and the P.G.K. Murthy impressed upon him that such a letter issued by the first defendant would be helpful to seek time for payment of loan to the bank and save the plaintiff from the complications and the said P.G.K. Murthy also gave a draft letter on 24-5-1981 in the presence of one Sri S.N. Babu and requested the defendant to arrange for the letter issued by the defendant No. 1 firm on its letter head without date. In view of the past friendship and a long association of the second defendant with P.G.K. Murthy, he issued material and never suspected the integrity and bona fides of P.G.K. Murthy. Hence, contended that he has not agreed to sell any material to the plaintiff and he has not taken any material back. As such, the material supplied to the plaintiff is only as a loan and without any consideration. It is also alleged that he approached the plaintiff and her brother P.G.K. Murthy on several occasions for return of the goods supplied by him on 8-5-1981. He also negotiated with P.G.K. Murthy through friends as well-wishers like Sri M. Subhash, J.K. Sivaram Singh, S.N. Babu and Bhagwant Rao for an amicable settlement. All such efforts put in by him did not yield any result. Therefore, he issued notices to the plaintiff on 3-6-1981, 18-6-1981, 21-7-1981, 28-8-1981, 12-9-1981, 15-10-1981 and 10-1-1982 calling upon the plaintiff to return the materials and the said notice copies were also sent to P.G.K. Murthy. The plaintiff sent a reply on 8-2-1982 stating that defendant No. 2 is liable for the loan advanced to Sri Jagga Rao and that the plaintiff will not be able to return the materials to the defendant''s unless and until the accounts of the said P.G.K. Murthy are settled by Jagga Rao by payment of the dues in a sum of about Rs. 55,000/-. In view of these facts, the defendants are not liable to pay any amount to the plaintiff as claimed.

The plaintiff filed a rejoinder in relation to the phone number and other particulars and also had furnished certain more details denying certain of the allegations.

On the strength of the pleadings the following issues were framed:

(1) Whether the plaintiff is entitled to recover the suit amount?

(2) To what relief?

P.W.1 and P.W.2 were examined and Exs.A1 to A14 were marked on behalf of the plaintiff. D.W.1 and D.W.2 were examined and Exs.B1 to B9 and Exs.X1 to XV were marked on behalf of the defendants. The learned Judge having recorded certain findings ultimately dismissed the suit Hence, the present appeal is preferred.

In the light of the oral and documentary evidence available on record and the findings recorded by the trial Court and the submissions made by both the learned Counsel, the following points arise for consideration in the present appeal:

(1) Whether in the facts and circumstances of the case appellant-plaintiff is entitled to the decree as prayed for; and

(2) If so, to what relief the parties are entitled to?

Point (1):

P.W.1-Murali Krishna Mohan Rao, the Manager of the plaintiff was examined, who deposed in detail all the details. Ex.A1 is the proforma invoice dated 8-5-1981. Ex.A2 is the delivery challan. Ex.A3 is the receipt dated 8-5-1981 for Rs. 16,800/-. ExA4 is the receipt dated 9.5.1981 for Rs. 30,000/-. Ex.A5 is the letter issued by Star Electrical Industries to M/s. Shree Venkateswara Engineering Works, which reads as follows:

STAR ELECTRICAL INDUSTRIES ENGINEERS and MANUFACTURERS

D-15, I.D.A. Jeedimetla, Hyderabad-500 854. Phone:76040

To

M/s. Shree Venkateswara Engineering Works, Secunderabad.

Sir,

Sub: Supply of materials.

Reg: D.C.No. 283/SEI/80-81 of 8-5-1981.

Since you have not approved the quality of materials supplied by us we have taken back the 9 M.Ts. of materials supplied as per the above delivery challan.

We shall supply you correct materials within one week or refund the amount paid for the materials.

We regret for the inconvenience caused to you.

Yours faithfully, For Star Electrical Industries Partner

The fact that Ex.A5 is in the handwriting of the D.W. 1 is not in serious controversy. The signatures in Exs.A3 and A4 are that of second defendant is also not in serious controversy. Ex.A6 is the letter dated 4-7-1981 by Shree Venkateswara Works to defendant No. 2. Ex.A7 is the legal notice. In relation to Ex.A7 D.W.1 states that he had not received the said notice. Ex.A8 is the bill book of the plaintiff''s firm. Ex.A9 is the copy of the letter dated 11-7-1979. Ex.A10 is the letter dated 17-7-1979. Ex.A11 is the letter dated 21-9-1979. Ex.A12 is the copy of Indemnity by plaintiff to HAL. Ex.A13 is the copy of the letter dated 1-7-1983 by the plaintiff to Income Tax Officer, Hyderabad. Ex.A14 is Form No. 52 under R.120 of the Income Tax Rules, 1962. As against this, defendants relied upon Exs.X1 to X7 and examined D.W.2 to substantiate the stand that this transaction is in relation to a third party transaction, the loan transaction of Jaggarao. D.W.1, no doubt, deposed in detail about these aspects. D.W.2 is the Manager of the Punjab National Bank. Ex.B1 is the visiting card. Ex.B2 is the letter dated 23-5-1981 by P.W.2 to defendant No. 2. Ex.B3 is the letter dated NIL by defendant No. 2 to plaintiff firm. Ex.B4 is the copy of the partnership deed dated 1-1-1978. Ex.B5 is the booklet of Indian Standard General Technical Delivery Requirements for Steel and Steel Products. Ex.B6 is the passbook of Dl firm with Punjab National Bank. Ex.B7 is the office copy of letter dated 28-8-1981 by Dl firm to plaintiff''s firm. Ex.B8 is the letter dated 8-2-1982 by plaintiff''s firm to defendant No. 2. Strong reliance was placed on the contents of Ex.B8 and some suspicion was expressed in relation to the right of the plaintiff to recover the amount.

Ex.B8 letter reads as follows:

Shree Venkateswara Engineering Works 130, JEERA, SECUNDERABAD-A.P.

To

Sri G. Krishna Rao, Partner, Star Electrical Industries, 10-3-13/1, East Maredpally, SECUNDERABAD.

Dear Sir,

Sub: Supply of Materials.

Ref : Your D.C.No. P-283/SEI/80-81, dated 8-5-1981.

With reference to the various letters/notices issued by you ending on 10th January 1982, I am advised to state that 9 M. tonnes of Steel Materials delivered to us by you as loan cannot be delivered back to you unless and until the accounts of Sr. P.G.K. Murthy are settled by Jagga Rao by payment of Rs. 55,000/- incluse of interest upto date.

Please note that on the assurance given by you, Sri P.G.K. Murthy paid the amount of Rs. 30,000/- to Jagga Rao, you are therefore liable for the said transaction. We suggest that for an amicable settlement in the matter, you may arrange to pay back the amount through Jagga Rao as promised. Otherwise we will not be" able to return the steel materials to you.

Thanking you and looking forward for your co-operation.

Yours faithfully, For Shree Venkateswara Engg. Works Manager/Proprietor.

Ex.B9 is the copy of the legal notice dated 14-7-1981 got issued by P.G.K. Murthy to one Sri D. Jagga Rao. Evidently, this was relied upon to substantiate the stand taken by the defendants that this is in relation to third party transaction. It appears from record that an application to examine the Manager out of turn was moved and the same was dismissed. It also appears that at another application was moved praying for permission to examine herself by the plaintiff and the said application was also dismissed. It is no doubt true that this was not the ground on which the plaintiff was non-suited by the trial Court. As can be seen from the findings recorded, the learned Judge entertained a suspicion relating to the transactions, especially in the light of Ex.B8 it is needless to say that the plaintiff was not examined since her application praying to examine herself had been negatived. That is the reason why though a request was made she could not examine herself. P.W.1 deposed in detail about all the details. The Counsel for appellant placed strong reliance on Exs.A3 and A4 and also the contents of Ex.A5 in the own handwriting of D.W.1. It may be appropriate to have a look at the relevant portion of the cross-examination of P.W.1, which reads as follows:

I was not present at the time of transaction under Ex.A.2 between Koteswaramma and defendant No. 2. I do not know if there was any written order supplied for goods under Ex.A.1. Ex.A.1 is the proforma invoice. I cannot say if Ex.A.1 is a sale invoice. I do not know administrative work of plaintiff. There is a mention of sales tax of Rs. 1,800/- in Ex.A.1. I do not know if the goods supplied under Ex.A.1 were towards loan transaction towards which goods were supplied for being pledged hypothecated with bank to realize a loan. I was informed it is a sale. I cannot say who informed me. I do not know if the delivery of Ex.A.2 challan is original. Under Ex.A.1 the goods supplied were as per I.S.S. standard and it is so mentioned in Ex.A.1. I do not know D.2 prior to Ex A.1. I do not know if D.2 supplied goods purchased by him from raw materials Centre of Hindustan and Steel Yard of Sanathnagar. It is not true to say that the endorsement in writing in Ex.A.2 was made for the purpose of being shown to the bank authorities at the time of hypothecation. I received the delivery of consignment during the course of my business but I do not know the details of the consignment. It is true there is no entry with regard to repayment of any advance in Ex.A.1. I was not present at the time of drafting the plaint. I cannot say who gave instructions for drafting the plaint. It is not true to say Koteswaramma kept Exs.A.1 and A.2 with National Bank and obtained Rs. 30,000/-loan on hypothecation. I do not know if Koteswaramma got any loan of Rs. 30,000/- from P.W.1 stating that there was a plot at Zamistanpur Godown. I do not know if the same amount of Rs. 30,000/- advanced by the bank was deposited in the name of D.2 in the same bank. I do not know who is Jagga Rao. Proprietrix has got personal knowledge of the transaction. I do not know if P.G.K. Murthy got this transaction made with D.2. P.G.K. Murthy and his sister Koteswaramma are in station.

No doubt, several other details had been deposed in detail by D.W.1. In the light of what had been deposed by D.W.1 most probably it was thought that it would be essential to examine the plaintiff herself to further clearly establish the case. But, unfortunately the said application was dismissed and thus the plaintiff Koteswaramma was prevented, from entering into the witness box to dispel any suspicion in relation to Ex.B8 and relating to the evidence within the personal knowledge of the proprietrix i.e., Koteswaramma. In the light of the same, this Court is of the considered opinion that it would be just and proper to give an opportunity to both the parties to let in further evidence on these aspects, especially in the light of Exs.A3, A4, A5 and Ex.B8 and also certain of the admissions made by P.W.1 that he has no personal knowledge of certain of the transactions. Apart from this aspect of the matter, on overall appreciation of all the facts and circumstances, this Court is of the considered opinion that the findings recorded that this is in relation to a third party transaction cannot be believed merely because in Ex.B8 something had been stated by the plaintiff. Be that as it may, inasmuch as an opportunity is being given in this regard, this Court is not inclined to express any further opinion relating to this aspect of the matter.

Point (2):

In the light of the findings recorded above, the judgment and decree of the trial Court are hereby set aside and the matter is remanded to the trial Court for the purpose of affording opportunity to both the parties to let in further evidence inclusive of an opportunity to the plaintiff to examine herself, and the trial Court is directed to pass such suitable orders at the earliest point of time taking into consideration that this is sufficiently an old matter. Accordingly, the matter is remanded to the trial Court.

Accordingly, the C.C.C.A. is allowed to the extent indicated above. No costs.