TaxTMI 
TaxTMI 
2016 (2) TMI 1403
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....Adv. For the Respondent(s) : Mr. A.R. Takker, Adv. SC 25757/10 Mr. Abhinit Das, Adv. Ms. V.S. Lakshmi, Adv. Mr. Ganesh D. G., Adv. Mr. A. Venayagam Balan, Adv. SC 8790-91/11 : Mr. P.H. Parekh, Sr. Adv. Mr. Kshatrshal, Adv. Mr. Vishal Prasad, Adv. Ms. Himanjali Gautam, Adv. For M/s. Parekh & Co., Advs. ORDER Civil Appeal @ S.L.P.(C) No. 25757/2010 Leave granted. 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 p....
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....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 cl....
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.... 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 we....
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....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. 18,83,9....
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....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. 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 a....