(V. Gopala Gowda and Uday Umesh Lalit, JJ.)
Ajay Kumar D Amin _______________________________ Appellant
v.
Air France _______________________________________ Respondent
Civil Appeal No(S). 1142 of 2016, decided on February 10, 2016
[Arising out of S.L.P. (C) No. 25757 of 2010]
With
Civil Appeal Nos. 1143-1144 of 2016
@ S.L.P. (C) Nos. 8790-8791 of 2011
The Order of the court was delivered by
Order
Civil Appeal @ S.L.P.(C) No. 25757/2010
1. Leave granted.
2. This appeal is directed against the common impugned judgment and order dated 2.03.2010 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in dismissing First Appeal No. 340 of 1990 filed by the appellant herein by affirming the judgment and decree of the trial court wherein the trial court has scaled down the decretal amount of Rs. 43,86,974.98 passed by the Commissioner for Taking Accounts for the High Court and City Civil Court and awarded Rs. 18,83,914.88 after adjusting the admitted amount of Rs. 16,820.12 out of Rs. 19,00,735.00 and held that the appellant is entitled for a sum of Rs. 18,83,914.88 with interest at the rate of 10 per cent per annum.
3. The scaling down of the amount from the decree passed by the Commissioner for Taking Accounts for the High Court and City Civil Court, Ahmedabad dated 18.01.1989 as per Schedule-‘E’, was questioned before the City Civil Court by the appellant, urging various legal contentions. The respondent sought for dismissal of the civil suit for recovery of the said amount by the appellant herein.
4. Both the appellant and the respondent filed First Appeal before the High Court. Insofar as the appellant is concerned, he requested to modify the judgment and set aside that portion of the judgment of the City Civil Court by scaling down the amount as the same is contrary to the evidence on record and findings recorded by the High Court is erroneous on the contentious issue, even though it has accepted the findings recorded with regard to non-production of documents as directed by the trial court which are in custody and possession of the respondent in relation to the accounts maintained by it with regard to the transactions which had taken place for the period for which the claim was preferred, namely, rendering account of overriding commission from 1.12.1971 to 5.08.1974 and despite direction the preliminary decree passed by the trial court was challenged before the High Court in the earlier round of litigation by filing First Appeal Nos. 640 of 1981 and 641 of 1981 with cross-objections. The High Court vide its Oral Judgment dated 19.02.1985 while affirming the preliminary judgment and decree as per Exhibits 182 and 183, the directions (a) to (e) contained in the judgment, particularly the direction to the respondent (defendant) to render account of overriding commission from 1.12.1971 to 5.08.1974 was disobeyed, therefore, the finding was recorded by the Commissioner while computing the claim by drawing an adverse inference and the Commissioner decreed the amount of Rs. 43,86,974.98 after adjusting the claim of the defendant.
5. That preliminary decree was challenged before the High Court in First Appeal Nos. 640 of 1981 and 641 of 1981 on various grounds. The High Court has heard the learned counsel for the parties. The appeal of the Original plaintiff-appellant herein is partly allowed with regard to the direction pertaining to accounts directing the respondent to render account w.e.f. 1.01.1968 instead of 1.12.1971. With the modification, as stated above, the direction would be read as: “the defendant-respondent herein to render account of overriding commission from 1.01.1968 to 5.08.1974”. Rest of the judgment and decree passed by the trial court is not disturbed. First Appeal No. 641 of 1981 in respect of the claim against the appellant was dismissed. Thereafter, the respondent did not comply with the direction contained in the impugned judgment regarding production of the statement of accounts for the period 1.1.1968 to 5.08.1974. Thereafter, the Commissioner for Taking Accounts on the basis of the material available on record has allowed the claim for a sum of Rs. 43,86,974.98 after adjusting the claim of the defendant by recording its reasons. The correctness of the same was questioned before the High Court by the respondent herein. The High Court while accepting the findings and reasons recorded in the preliminary decree has disallowed certain amounts by reappreciating the evidence placed on record by the appellant and his witnesses and the appellant has not produced the Credit Notes pertaining to the period for which the claim was made, therefore, certain claims were disallowed and decreed the sum of Rs. 18,83,914.88. While examining the correctness of the judgment in the Reference by the City Civil Court and the correctness of the finding recorded with regard to non-production of documents, the High Court ought not to have taken a different view in view of the said direction issued by the Commissioner for Taking Accounts in the preliminary decree which has been modified by the High Court in First Appeal No. 640 of 1981 etc. Therefore, the fact remains that on the important aspect of the matter i.e. non-production of the documents, the adverse inference has rightly been drawn by the Commissioner as well as by the trial court after adverting to the Privy Council judgment in Motilal v. Kundanlal, A.I.R. 1917 Privy Council P.I., wherein it has been held that failure by a party in spite of the order for discovery to produce account books which ought to have been produced or should have explained the non-production raises a presumption that the contents were unfavourable to the party. Thus, adverse inference should be drawn against the respondent. Again, in support of the said proposition, the Commissioner for Taking Accounts rightly placed reliance upon the judgment of this Court in the case of Gopal Krishnaji Ketkar v. Mohd. Haji Latif, A.I.R. 1968 SC 1413, wherein this Court held that under Sections 114(g) and 103 of the Evidence Act, 1872, a party in possession of best evidence which throw light on the issue in controversy withholding it, the Court ought to draw an adverse inference against it notwithstanding that onus of proof does not lie on him and the party cannot relied on abstract doctrine of onus of proof or on the fact that he was not called upon to produce it. The trial court has rightly placed reliance upon the said judgments of Privy Council and this Court and the Commissioner has rightly drawn an adverse inference during the aforesaid period’s statement of accounts recording the overriding commission. The High Court while examining the correctness of the said judgment and decree passed by the Reference Court has partly affirmed by scaling down the amount from Rs. 43,86,974.98 to Rs. 18,83,914.88 even without drawing an adverse inference on non-production of accounts which are in the custody of the respondent. The aforesaid order of the preliminary decree which was affirmed by the High Court in the previous round of litigation between the parties, the trial court on an erroneous assumption, disbelieving the claim of the plaintiff-appellant, without considering the conduct of the respondent disobeying the order passed by the Commissioner for Taking Accounts and affirmed by the High Court by affirming the preliminary decree passed in favour of the appellant, should not have disallowed the claims and scaled down the decretal amount from Rs. 43,86,974.98 to Rs. 18,83,914.88 Aggrieved of the said portion of the judgment, the appellant has rightly filed the appeal before the High Court. So also, the respondent aggrieved of allowing certain claims and disallowing its claim against the appellant also filed the appeal. The High Court while examining the correctness of the judgment passed by the City Civil Court at Ahmedabad in Reference Nos. 27 and 33 of 1980 affirmed the same without examining the erroneous finding recorded by the trial court in disallowing the claims of the appellant though the respondent has wilfully disobeyed by not complying with the direction to produce statement of accounts for the relevant period, as stated hereinabove, therefore the finding recorded on the contentious issue is not only erroneous but an error in law for the reason that the Commissioner as well as the City Civil Court in Reference Nos. 27 and 33 of 1980, in view of the fact that the direction issued in the earlier round of litigation at the time of passing the preliminary decree to produce the documents for the aforesaid relevant period has been affirmed with a further modification to the Commissioner’s Order directing the respondent to produce the record from 1.01.1968 to 5.08.1974, therefore, the High Court ought to have considered the case of the appellant in his appeal with regard to disallowing certain claims. The respondent has withheld the production of the document, which is directed by the Commissioner, City Civil Court, and as directed by the High Court in the modified judgment dated 19.02.1985 in First Appeal No. 640 of 1981 etc. The High Court in the impugned judgment certainly does not justify in scaling down the decretal amount awarded by the Commissioner on the basis of the evidence placed on record and the documents produced by the appellant before it, therefore, the findings recorded by both the City Civil Court and the High Court are not only erroneous but also have committed an error in law.
6. In the course of the arguments, it was pointed out to us that the City Civil Court has noticed in its reasoning portion of the judgment (Para 10) with regard to the claim which the High Court while affirming the preliminary decree does not direct the respondent to render account of the normal commission as obviously such account would be with and under the control of the appellant himself. Thus the amount of Rs. 5,05,470.00 which is allowed by the Commissioner and disallowed by the City Civil Court shall have to be deducted from the decretal amount of Rs. 43,86,974.98. To that extent the decree of the Commissioner is modified. The appellant is entitled for the said sum with interest @ 7% p.a. on the remaining amount which is allowed in this appeal and which has been scaled down by the City Civil Court.
7. We make it very clear that the amount which is decreed in the Civil Suit filed by the appellant which had been scaled down to Rs. 18,83,914.88, the said amount with interest awarded @ 10% p.a. is stated to be deposited with the trial court and has been withdrawn. Having regard to the facts and circumstances of the case we disallow the claim accepted by the trial court and affirmed by the High Court. We set aside that portion of the judgment. The remaining amount shall be deposited by the respondent within four weeks before the trial court along with interest at the rate of 7% p.a. from the date of the institution till the date of payment.
8. With the abovesaid modification of the impugned judgment and order, we allow the appeal of the appellant.
Civil Appeals @ S.L.P.(C) Nos. 8790-8791/2011
9. Leave granted.
10. Since we have allowed the appeal filed by the appellant, namely, Mr. Ajay Kumar D. Amin, in Civil Appeal arising out of S.L.P.(C) No. 25757 of 2010 questioning the correctness of the disallowed claim and decree passed by the City Civil Court and affirmed by the High Court, the appeals filed by the appellant-Air France are liable to be set aside.
11. The appeals are dismissed without any order as to costs.
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