MANSUKHLAL HARISHCHANDRA Vs. SITARAM FOUNDARIES

JUDGEMENT

(1.) THE present second appeal has been filed by the appellant original defendant under Section 100 of the Code of Civil Procedure posing the following substantial questions of law:

(2.) THE facts of the case briefly summarized are that; the respondent original plaintiff filed Civil Suit No. 632 of 1981 for recovery of the amount of Rs. 8,500/- together with costs and interest as stated in the memo of plaint. THE plaintiff firm is a partnership firm for which the registration has been produced and the petitioner original defendant had purchased fly wheels. THE plaintiff had made the demand and when it was denied, the aforesaid suit has been filed. On the basis of the material and evidence produced, the Joint Civil Judge (J.D.), Rajkot partly decreed the suit for a sum of Rs. 2517.50ps. with proportionate cost and interest @ 6% from the date of the suit till the realization vide judgment and order dated 28.02.1983. THE said judgment was challenged before the District Court by the respondent - original plaintiff vide Civil Appeal No. 59 of 1983 as the claim was not fully decreed. THE appellant original defendant also preferred an appeal against the said judgment vide Civil Appeal No. 60 of 1983 and both the appeals, on the basis of material and evidence, were decided by the lower Appellate Court vide judgment and order dated 20.01.1986. THE Regular Civil Appeal No.59 of 1983 filed by the respondent original plaintiff was allowed and the decree passed by the trial Court was modified and the respondent original plaintiff was held entitle to Rs. 8,500/- together with interest @ 12% from the date of suit till the realization. THE Regular Civil Appeal No. 60 of 1983 filed by the appellant original defendant was dismissed. THErefore, the appellant - original defendant preferred the present second appeal posing the substantial questions of law as stated above.

(3.) LEARNED Advocate Mr. Jasani submitted that as it transpires from the material and evidence and the judgment that it was a commercial transaction and the interest would be claimed in case of any default for the payment. He referred to the judgments of the trial Court as well as the lower Appellate Court and submitted that the documents were produced and once it is established that the goods have been delivered and the entries in the books of accounts have been considered by the Courts below that the goods have been purchased from the plaintiff of the total value of Rs. 8067.50ps, the judgment of the lower Appellate Court cannot be said to be erroneous and therefore the present second appeal may not be entertained as no substantial questions of law can be said to have been involved. He has also stated that if the findings are recorded based on the evidence by both the Courts below, merely because some modification is made, it cannot be said to be any substantial question of law and therefore present second appeal may not be entertained. LEARNED advocate Mr. Jasani also submitted that the scope of exercise of discretion in second appeal may be very limited.