1 sa286-10.sxw KBP IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.286 OF 2010 WITH CIVIL APPLICATION NO.782 OF 2010 Balasaheb Shamrao Nitwe ..Appellant Vs Sou. Lalita Satgonda Patil ..Respondents ­­ Mr.R.S.Apte, Senior Advocate i/b.Mr.V.B.Rajure, for appellant. Mr.S.D.Patil, for respondent. ­­ CORAM : R.G.KETKAR, J. DATE : 1 st APRIL, 2011 P.C: Original defendant has preferred this Second Appeal challenging the judgment and decree dated 28 th July, 2003 passed by the learned IIIrd Joint Civil Judge, Senior Division, Kolhapur in Regular Final Decree Application No.23 of 1996 as also judgment and decree dated 12 th October, 2009 passed by the learned Addl. District Judge­3, Kolhapur in Regular Civil Appeal No.446 of 2003. By these judgments, the Courts below allowed the application made by the respondent/plaintiff directing the appellant/defendant to pay Rs. 2,19,641.73 ps towards 80% share of the plaintiff in the firm with simple interest at the rate of 6% per annum from the date of final decree till full realisation to the plaintiff. 2 sa286-10.sxw KBP 2] The respondent instituted Regular Civil Suit No.965 of 1987 for dissolution of partnership firm namely M/s.Nitave Patil and Brothers, of which appellant and respondent were partners. The firm came to be dissolved w.e.f. 1 st July, 1996 by the order dated 5 th July, 1996. By order dated 10 th January, 1997, with the consent of the parties, Mr.S.M.Parandekar, Chartered Accountant, Kolhapur was appointed as Court Commissioner for settlement of accounts. Pursuant to the order passed by the Court, the Commissioner issued notices to the parties on 27 th January, 1997 asking the parties to appear on 7 th February, 1997. Eventually, the Commissioner prepared a report on 24 th February, 1997 exhibit 22. Initially, respondent filed objections to the report of the Court Commissioner. She, however, did not press those objections. Even, the appellant filed objections at exhibit 44. The learned trial Judge, on the basis of material on record, allowed the application and directed the appellant to pay Rs.2,19,641.73 ps. Against this order, the defendant preferred appeal which was dismissed. Against these decisions, the defendant has preferred present Second Appeal. 3] Mr.R.S.Apte, learned Senior Advocate raised following contentions:­ i) The Courts below did not consider the ambit of powers of the Court Commissioner for taking 3 sa286-10.sxw KBP accounts. ii) The Court Commissioner did not follow the procedure laid down under Section 48 of the Indian Partnership Act, 1932 for settlement of accounts between the parties. iii) The Courts below did not properly consider the objections raised by the defendant to the report of the Court Commissioner. 4] Elaborating the submissions, Mr.Apte contended that the Commissioner cannot be equated with the Civil Court. He has no power to examine the witnesses. In the instant case, the Court Commissioner exceeded the authority and consequently, the report submitted by the Commissioner is vitiated. He further submitted that the Commissioner called for record and documents from different agencies. However, those documents were not duly proved. Even on this ground, the report of Commissioner is vitiated. In support of this submission, he relied upon the judgment of learned single Judge of the Rajasthan High Court in the case of M/s.Nathmal Bhaironbux and Co. and others Vs. Kashi Ram and others, AIR 1973 Rajasthan 271 and, in particular, paragraph nos.16 to 18 thereof. 5] On the other hand, Mr.S.D.Patil, learned counsel for 4 sa286-10.sxw KBP respondent supported the impugned judgment. He invited my attention to Rule 16 and Rule 17 of Order 26 of the Code of Civil Procedure, 1908. In so far as the objections raised by the appellant are concerned, it is submitted that the Commissioner recorded in paragraph no.8 of the report that the parties did not produce any of the accounting record of the firm. As per the partnership deed, Mr.B.S.Nitwe was the working partner of the firm and hence, he was called upon to produce those documents. The Courts below considered this aspect and held that if the appellant was looking after day to day affairs of the business, he was supposed to be in custody of such accounts books; but he failed to make it available. The Courts below, therefore, came to the conclusion that the Court Commissioner was required to proceed to examine the other documents like income tax papers, balance sheet etc. The Appellate Court, in paragraph no.29, recorded that the appellant has failed to point out that in what manner the provisions of Section 48 of the Indian Partnership Act, 1932 were not followed by the Court Commissioner. 6] I have considered the rival submissions made by learned counsel for the parties. In so far as the submission that the Commissioner exceeded his authority is concerned and reliance placed by Mr.Apte on the judgment in the case of Nathmal (supra) is concerned, in my opinion, it is clearly misconceived. In the first place, 5 sa286-10.sxw KBP in that case, the appellant/defendant had applied for summoning all the witnesses by the Commissioner through whom he wanted certain documents. Though the appellant/defendant made application on 21 st March, 1991 to the District Judge, no order was passed on that application except that it be filed. In paragraph 16 of the judgment in the case of Nathmal (supra), it was observed that the learned Single Judge enquired of the the learned counsel if on receipt of the Commissioner’s report any objection had been taken regarding the non­issuing of processes for the examination of witnesses as desired by the defendant. Learned counsel was not in a position to point out that any such objection was raised. The learned Single Judge came to the conclusion that he did not find any sufficient reason for holding that the defendant had been denied the opportunity of producing his witnesses or accounts or documents through them. 7] Secondly, Order 26 Rule 16 clearly lays down that any Commissioner appointed under this Order may, unless otherwise directed by the order of appointment (a) examine the parties themselves and any witness whom they or any of them may produce, and any other person whom the Commissioner thinks proper to call upon to give evidence in the matter referred to him; (b) call for and examine documents and other things relevant to the subject of inquiry; (c) at any reasonable time enter upon or into any land or building mentioned in the order. Order 26 Rule 17 provides that for the 6 sa286-10.sxw KBP purposes of this rule the Commissioner shall be deemed to be a Civil Court. The conjoint reading of Rule 16 and Rule 17 of Order 26 leads to the conclusion that the Commissioner is empowered to summon the witnesses as also permit the production of evidence in the matter referred herein. The Commissioner is also competent to call for and exam the documents and other things relevant to the subject of enquiry. In view of this, I do not find any substance in the objection raised by learned Senior Counsel for the appellant that the Commissioner has exceeded his authority. 8] The Courts below have concurrently found that in so far as the amount of Rs.2,60,043.88 ps is concerned, the appellant transferred the said amount in his favour without consent of the respondent. The appellant has not produced any document in support of amount of Rs. 2,60,043.88 ps. even, during the course of his evidence. In so far as the amount of Rs.1,34,624.5 ps is concerned, the appellant in cross­ examination admitted that the said amount was transferred to another firm without obtaining written consent of the respondent. I, therefore, do not find any substance in the objections raised by the appellant to the report of the Court Commissioner. 9] The Courts below had allowed the application made by the respondent and the findings recorded by the Courts below are concurrent findings of facts. No substantial question of law is involved 7 sa286-10.sxw KBP in the present Second Appeal. The Second Appeal is dismissed. In view of the dismissal of Second Appeal, Civil Application No. 782 of 2010 does not survive and the same is dismissed. [R.G.KETKAR, J.]