The main legal point established in the judgment is the adverse inference drawn against a party for non-production of documents, as supported by the judgments in Motilal and Ors. v. Kundanlal and Ors., AIR 1917 PC P.I. and Gopal Krishnaji Ketkar v. Mohd. Haji Latif and Ors., AIR 1968 SC 1413.

ORDER :

Civil Appeal @ S.L.P.(C) No. 25757/2010

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 pre