C.V. Jani, J.This is an appeal filed by the original defendant u/s 96 of the Code of Civil Procedure, against the money decree for an amount of Rs. 39,533.60p. with running interest at the rate of 12 per cent per annum and also the order regarding costs by the learned Judge of the City Civil Court at Ahmedabad in Civil Suit No. 3372/76. The facts in brief, which have given rise to this appeal, are as under :

2. The respondent Arvind H. Pathak, sole proprietor of M/s. Venus Containers at Godhra, filed Civil Suit No. 3372/76 against the present appellant Gujarat Agro Oil Enterprises Ltd. for recovering an amount of Rs. 29,386.25 p. for the price of the goods sold and delivered to the defendant, with interest amounting to Rs. 10,238.20 p. on such principal amount and Rs. 100/- by way of notice charges. According to the plaintiff, who was manufacturing Tin containers of various types and sizes at Godhra agreed to supply tin containers as per the defendants purchase orders Nos. 21299, 21300 and 21301. According to him he had supplied different quantities of tin containers on different dates in the months of June, July August, September and October 1973, but the defendants have made only part payment of Rs. 1,09,500/- against the price to goods valued at Rs. 1,38,886.35 p. Hence the plaintiff had to serve the defendant a notice of demand. As the defendant raised certain contentions regarding duplication of bills and over charging certain items, the plaintiff filed the suit for recovering the aforesaid amount and also interest at the rate of 12% from the date of respective bills.

3. In his affidavit for leave to defend Exh. 11 which is leter on treated as the written statement at the request of the defendant, it was contended on behalf of the defendant that the plaintiff had supplied ony 25,166 Tins towards four purchase orders for 1,04,000 Tin containers and so, the defendant had to pay a higher price of Rs. 21,978.35 in order to purchase the remaining containers from the market. It was further contended that the defendant had received only 1200 Tins valued at Rs. 6420/- on 2-8-73 but he was claiming the said amount twice over on the basis of two different bills dated 2nd August, 1973, bearing two different numbers -- one bearing No. NAV/332/10 and another bearing No. NAV/ B/2. Thus, according to the defendant, the plaintiff was not entitled to demand the amount of Rs. 6420/-. Further, it is contended that the plaintiff had charged Rs. 6.25 p. per Tin in respect of goods sent to Baroda on 10-10-73, 16-10-73 and 30th September, 1973 instead of the contractual rate of Rs. 5.39p. per Tin even though necessary corrections were made in the original bills. The defendant also challenged the inclusion of Octroi charges and claimed damages to the tune of Rs. 90.95p. for delivery of 17 damages tins at Piplod. The defendant also submitted the statement regarding various items on which he was entitled to deduction of Rupees 22,069.30P. The defendant also submitted a Pursis Exh. 27 stating that he was preferring a counter claim/set off for an amount of Rs. 1866.67 which is the amount of overpayment made by him to the appellant. The defendant also raised other contentions regarding non-joinder of the State of Gujarat as a necessary party and regarding rate of interest claimed by the plaintiff.

4. By its reply Exh. 90 to the defendants counter claim, the plaintiff contended that the counter claim was barred by limitation, and that the defendant was also liable to pay interest as he has not made the payment of bills within 7 days from the date of the delivery, as stipulated in the bills furnished by the plaintiff. He further contended that due to heavy rains disrupting the road transport in back-ward area in which the Factory was situated and due to the non-availability of labourers during heavy rain it was unable to supply the quantity required by the defendant.

5. The learned Judge of the City Civil Court raised several issues casting the burden of proof regarding alleged duplication of bills, damage caused due to failure to deliver the goods and the right to recover Rs. l,866.67p. by way of counter claim on the defendant. However, the general issue regarding plaintiffs burden to prove the value of the tins sold and delivered to the defendant was cast on the plaintiff. The plaintiff did not lead any evidence. The plaintiff produced certain documents only in support of his claim, but submitted a Pursis Exh. 89 declaring that he did not want to lead any oral evidence and reserving his right to rebut the evidence that would be produced by the defendant to prove his case. Such a Pursis was submitted by the plaintiffs Advocate on 10-7-80. After the defendant led his evidence, he closed his evidence by submitting a Pursis Exh. 123. On the same day the plaintiffs Advocate also closed his evidence by submitting a Pursis Exh. 124 on 16-1-1981. Thus, the matter rests mainly on appreciation of documentary evidence produced by the parties. The learned City Civil Judge found that the plaintiff had proved his case and the defendant had failed to prove the contention regarding duplication of bills dated 2-8-73, he also found that the defendant had failed to prove his claim for damages due to short supply by the plaintiff. He found that the defendant was entitled to deduct a sum of Rs. 90-95p. in respect of 17 damaged containers. He found that the plaintiff was entitled to claim interest and the counter claim of the defendant was barred by limitation. The learned Judge held that he had jurisdiction to hear and decide the suit and that the suit was not bad for non-joinder of necessary parties as the defendant was a Corporation having its separate identity. Accordingly, the learned Judge passed a decree for an amount of Rs. 39,533.60 p. along with running interest at the rate of 12% from the date of the suit, as against the plaintiffs claim of Rs. 39,724.55 p. with running interest at the prevailing Bank rate.

6. Mr. B. R. Shah, learned Advocate appearing for the appellant, original defendant, made the following three submissions :

(i) The learned Judge of the Trial Court had committed an error in awarding interest at 12% on the amount claimed by the plaintiff which included interest up to the date of the suit;

(ii) The learned Judge had erred in holding that the plaintiff was entitled to recover the amount of two different Bills dated 2-8-73 each being in respect of 1200 containers;

(iii) The learned Judge had erred in holding that there was no evidence on record to show that the defendant was entitled to deduct Rs. 2714/- which according to him had been claimed wrongly in respect of the goods delivered on 30-7-73, 16-10-73, 10-10-73 and 30-9-73.

7. So far as the first submission of Mr. Shah is concerned, it is obvious that the total amount found due to the plaintiff was Rs. 39,533.60p. on the date of the suit. This was the amount as claimed by the plaintiff in his plaint inclusive of interest at the rate of 12% per annum. The plaintiff had claimed Rs. 29,386.35p. as principal amount and Rs. 10,238.20p. by way of interest up to the date of the suit. According to Mr. Shah the plaintiff was not entitled to recover interest on the total amount, but he would be entitled to recover interest on the principal sum found due by the Court. He further submitted that the rate of interest decreed by the Court up to the date of the suit was excessive, particularly in view of the fact that there was no agreement between the parties regarding interest to be charged on the price remaining due. In the purchase orders Exhs. 34, 35, 36 and 37 it is stipulated that payment was to be made within 7 days after delivery. Impliedly, the defendant had agreed that interest would be charged if payment is not made within 7 days after the delivery of goods. No rate of interest was stipulated either in the purchase orders or in the other documents produced by the parties. In respect of the price of goods found due in case of default of payment, interest can be "adjudged on such principal sum for any period prior to the institution of the suit" as per Section 34 of the Code of Civil Procedure. Thus, the Court is required to adjudge the interest on the principal sum, which of course would be calculated by the Court on the basis of the price of good supplied. Thus, we have to fall back upon Section 61 of the Sale of Goods Act 1930. Sub-section (2)of Section 61 reads as under :

"(2). In the absence of a contract to the contrary, the Court may award interest at such rate as it thinks fit on the amount of the price."

Under this provision the Court can award interest "at such rate as it thinks fit on the amount of the price". It appears from the record that the Trial Court awarded interest at the rate of 12% per annum on the principal sum adjudged on the basis of the price of the goods supplied, and we do not find anything unreasonable in the award of interest at the rate of 12% per annum, so far as the amount claimed by the plaintiff was concerned. The only error committed by the Trial Court was awarding of interest at the same rate on the total amount to be paid by the defendant which consisted of the principal sum as well as the interest claimed by the plaintiff after the date of the suit. As per Section 34 of the CPC the Court can award interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged. We do not find anything unreasonable in awarding of 12% by way of interest on the date of the suit, but such interest is to be calculated on the principal sum, i.e. the price of the goods supplied by the plaintiff which remained unpaid till the institution of the suit and not on the amount of Rs. 39,533-60 p. claimed by the plaintiff.

8. Mr. P.M. Raval, learned Advocate for the respondent-plaintiff, however, submitted that the amount of Rs. 39,533.60 p. which included interest claimed by the plaintiff up to the date of the suit has to be taken as the principal amount due on the date of the suit, and the trial Court had not committed any error in awarding interest at the rate of 12% per annum on this amount on the date of the suit:

We find ourselves unable to accept this submission of Mr. Raval. When Section 34 refers to "principal sum" at three different stages of the litigation it obviously means that the amount which had become due by way of price of the goods was the "principal sum" on which interest would be charged, and not the total amount which according to the plaintiff had become due on the date of the suit, particularly in view of the fact that the plaintiff had not demanded any interest in the bills furnished by him nor in his notice of demand Exh. 85, nor in the statement of accounts supplied by the plaintiff to the defendant. We, therefore, accept Mr. Shahs submission on this count and hold that the trial Court had committed an error in awarding interest on the amount claimed by the plaintiff which was inclusive of interest. Obviously, no compound interest can be awarded unless there is specific agreement between the parties to that effect. However, we do not accept Mr. Shahs submission that the trial Court had committed an error in charging interest at 12% per annum from the date of the transaction to the date of the suit. No evidence has been produced by the parties, particularly the plaintiff to prove any agreement regarding rate of interest, or trade usage or other relevant circumstances. As the law enables the Court to award further interest at the rate charged by Nationalised Banks in relation to commercial transactions in respect of the amount decreed till payment, we also find that interest at the rate of 12% per annum can be awarded on the principal sum for the period prior to the institution of the suit. We will therefore have to find out the amount which was exactly due to the plaintiff in respect of goods supplied to the defendant.

9. The second submission of Mr. Shah also deserves to be accepted. The burden to prove that certain amount shown to be due as per the particulars of the goods supplied given in Para 1 of the plaint was really due was on the plaintiff. The plaintiff has pleaded that an amount of Rs. 6420/-was due to the plaintiff in respect of 1200 containers supplied to the defendant on 2-8-73 under Bill N. NAV/332/ 10 and another amount of Rs. 6420/- was due as the price of 1200 containers supplied on the same day under Bill No. NAV/B/2. There is evidence on record to show that the defendant had challenged the demand made by the plaintiff in aspect of the two alleged receipts of the same day, and in order to rebut the evidence led by the defendant in this regard the plaintiff was expected to prove specifically that two consignments of 1200 containers each were sent to the plaintiff on the same day. Unfortunately the plaintiff did not step in the witness box nor did he examine any witnesses in support of his claim nor did he produce any accounts to show the entries regarding the alleged delivery of goods twice on the same day. The plaintiff went to the extent of closing his evidence by submitting a Pursis Exh. 124, after the defendant had led his evidence.

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10. The defendant produced a file containing some vouchers and bills as well as correspondence -- regarding supply of tins and entire file was exhibited by the trial Court as Exh. 109. In this file Bill No. NAV/B/1 dated 26-7-73 is at page 19. In the column relating to "particulars" the total number of 2208 containers are shown to be split up in two different deliveries. 1008 containers were delivered under Bill No. NAV/B/1 dated 25-7-73 and 1200 containers are shown to have been delivered under Bill No. NAV/B/2 dated 26-7-73. This voucher dated 26-7-73 on page 19 thus speaks about two deliveries amounting to 2208 containers valued at Rs. 10.156/-. Another Bill bearing the same number NAV/B/2 dated 2-8-73 is in respect of 1200 containers valued at Rs.5520/-. Obviously 1200 containers delivered under Bill No. NAV/B/2 dated 26-7-73 could not also be delivered under the Bill bearing the same number, but adifferent date. In his letter of demand dated 25-8-73 which is at page 22 of the file, the plaintiff demanded an amount of Rs.32,100/- for the delivery of tin containers on five different dates, including 1200 containers alleged to have been delivered under Bill No. NAV/B/2 dated 2-8-73. On page 23 the defendants branch office at Piplod has acknowledged receipt of the containers of different dates including the delivery of 1200 containers on 2-8-73 regarding which a receipt was also issued. This receipt No. 472 dated 2-8-73 is on page 17. Still there is another voucher dated 2-8-73 showing that 1200 containers were delivered under Bill No: NAV/B/2 on the same date. Bill No. NAV/S22/10 dated 2-8-73 in respect of 1200 containers is at page 16; while another Bill No. NAV/ S/2 datsd 2-8-73 in respect of 1200 containers is at page 25, and both these bills referred to the same Truck No. GTB 6922. Only one receipt No. 472 regarding delivery of 1200 containers on 2-8-73 is on record. No other receipt has been produced by the plaintiff to show that the same quantity was delivered on the same day under a different bill. The defendant has frankly admitted in his letter of acknowledgment dated 24-8-73 which is at page 23 that he had received 1200 tin containers on 2-8-73 and he had issued receipt No. 472 (which is produced at page 17). The preponderance of probability, therefore, shows that only one lot of 1200 containers might have been delivered to the defendant on 2-8-73, but the plaintiff issued two different bills in respect of this delivery. When the plaintiff sent a statement of accounts containing reference to two deliveries of 1200 containers each under Bill No. 332/10 and Bill No. B/ 2 by his forwarding letter Exh. 69 dated 18-12-73 the defendant objected against the erroneous debiting of the same amount under two different bills of the same date by his reply Exh. 70 dated 24-1-74. Similarly in his reply Exh. 106 dated 27-6-75 to the plaintiffs notice of demand, the defendant through his Advocate B. S. Trivedi objected against duplication of the same item of 1200 containers under two different Bills. In view of this voluminous evidence shaking the plaintiffs case, the plaintiff was expected to lead some evidence to prove his case regarding two deliveries of the same date, by leading oral evidence as well as by producing receipts or account books. Unfortunately, the plaintiff declined to lead any oral evidence by submitting the Pursis Exh. 124. Thus, there is nothing on record to show to explain the discrepancies which have become apparent from the vouchers contained in the file Exh. 109. As in a suit for price of goods sold and delivered, the plaintiff has to prove the fact of delivery of goods, it is the plaintiff who will suffer if such evidence is not led to prove the delivery of goods. The trial Court discussed the two issues regarding the plaintiffs onus to prove the sale and delivery of goods and also the defendants burden to prove the duplication of the two items. The Court held that the defendant was not able to prove the duplication of his claim, and as a consequence it came to the conclusion that in absence of any other evidence, the plaintiffs case regarding delivery of all the goods should be held to have been proved. When there was a specific dispute raised regarding the delivery of (goods on) a particular date, the plaintiff who sues for the price of goods so delivered, is expected to lead evidence in support thereof. From the evidence on record, it appears that the plaintiff has failed to prove the delivery of tin containers twice on 2-8-73, and so the plaintiffs claim will have to be reduced by an amount of Rs. 6420/- which was the price of 1200 containers.

11. The trial Court has relied on the alleged admission of the defendants witness Manubhai Madhavji Exh. 104 to the effect that the goods alleged to have been sent under two different bills dated 2-8-73 had been received by the defendant Corporation. At the same time he has stated in his examination-in-Chief that he had no personal knowledge regarding the suit transaction and he had not taken any part or interest in the dealings between the plaintiff and the defen-dant. The defendant also examined another witness Pratapbhai Harilal Exh. 114 who was in a managerial position at the relevant time. He deposed that only one lot of 1200 containers had been received, but bills were issued twice. Thus, the so-called admission of witness Manubhai Madhavji Exh. 104 does not so help the plaintiff as to shift the burden of proof which originally rests on him particularly in view of discrepancies in the several vouchers contains in the file Exh. 109 which have not been explained or removed by the plaintiff by leading proper evidence.

12. We, therefore, hold that the plaintiff is not entitled to recover Rs. 6420/ - twice over for the same date.

13. The third submission of Mr. B. R. Shah also deserves to be accepted. The plaintiff has claimed Rs. 6.25 per container in respect of the deliveries made on 30-9-73, 10-10-73 and 16-10-73 under three different bills. In the Appendix-B submitted with the affidavit for leave to defend Exh. 11 the defendant pointed out that the plaintiff was entitled to charge Rs. 5.39 per tin and so the plaintiff had claimed Rs. 2714.62 p. more in respect of 3142 tins delivered on those three dates. In support of his submission Mr. Shah refers to three bills on page 45, page 51 and page 55 of the file Exh. 109. These three bills relating to the three aforesaid deliveries at Baroda show that the amount of Rs. 1.65 paid by the plaintiff in respect of each container was corrected to 75 paise per container. As the basic price of each tin was Rs. 4.60 p. the total charges payable by the defendant would be Rs. 5.39 p. and not Rs. 6.25 P. No evidence is led by the plaintiff to show that these corrections were not genuine or unauthorised. In his letter Exh. 70 dated 24-1-74 the Assistant Manager of the defendant Corporation had pointed out in no uncertain terms that the bills were corrected by the plaintiff in order to charge Rs. 5.39 per container instead of Rs. 6.25 p. The consequence is the difference of Rs. 2714.62 in respect of 3142 tins delivered at Baroda, which is nearer to the plaintiffs factory than other places like Piplod and Kapadwanj where the plaintiff had supplied the goods at the rate of Rs. 5.36 per container. As a result, the amount of Rs. 2714.62 p. will have to be deducted from the amount claimed by the plaintiff.

14. The defendant contended that the defendant Corporation had to purchase tin containers at the higher rate from the Western Tin Factory at Mogar because of the plaintiffs failure to supply the total quantity of goods as per the defendants purchase orders and so the defendant had suffered a loss of Rs. 21,978.39 p. The trial Court has rightly held that the defendant was unable to prove the alleged damage inasmuch as the defendant received tins both from the plaintiff as well as Western Tin Factory in the months of July, August and September. It was only after 16-10-73 that the plaintiff stopped supplying the tin containers. The trial Court also rightly held that no notice has been served by the defendant to the plaintiff as contemplated by the second Part of Section 55 of the Indian Contract Act in order to claim compensation for short supply of the goods. It is not proved that the defendant was required to purchase tin containers from the Western Tin Factory only because of the plaintiffs failure to supply the containers as per the defendants purchase orders. Mr. B. R. Shah, learned Advocate for the appellant defendant, therefore, was not in a position to assail the finding of the learned City Civil Judge. The defendant is, therefore, not entitled to claim Rs. 21,978.35 p. by way of damages.

15. Mr. P. M. Rayal, learned Advocate appearing for the respondent-plaintiff submitted that the matter should be remanded to the trial Court in order to permit the parties to lead their evidence, particularly in view of the discrepancies discovered in the Bills and vouchers and also documentary evidence found in the form of account books or delivery books. Mr. Ravals request cannot be accepted in view of the fact that before hearing as well as after the defendants evidence was recorded the plaintiff had declined to lead any evidence in order to discharge the burden lying on him. Moreover, the suit was filed in the year 1976 and in the absence of compelling reasons this Court would not be inclined to remand the matter to the trial Court after fifteen years in order to permit a party to fill in the loopholes.

16. As a result, the appeal will have to be allowed. On deduction of the amount of Rs. 6420/- regarding the delivery of tins on 2-8-73 and Rs. 2714.52 p. in respect of the tins supplied at Baroda as well as certain octroi charges from the defendant, the defendant is liable to pay an amount of Rs. 20,202.63 P. as the principal sum being the price of the tin containers received by him from the plaintiff. He will also be liable to pay interest at the rate of 12% per annum on the said amount. Thus the defendants liability would roughly come to Rs. 27, 474/-. Over and above this amount the defendant will have to pay running interest at the rate of 12% on the principal sum of Rs. 20,202.63 P. from the date of the suit till payment. As the appeal is partly allowed there will be no order as to costs. If the decretal amount is already paid to the plaintiff, the plaintiff will have to refund the excess amount received by him, with interest at the same rate.

17. The appeal is partly allowed. The decree passed by the learned City Civil Judge, Ahmedabad in Civil Suit No. 3372/76 is partly set aside. The defendant is liable to pay an amount of Rs. 27,474/- to the plaintiff with 12% interest on the principal sum of Rs. 20,202.63 P. from the date of the suit till realisation. The decree for dismissal of counter, claim preferred by the defendant is hereby confirmed. There will be no order as to costs all throughout.