Case: Ghanshyam Narayan Behere Vs. Keshav Mahadeo Karandikar

the absence of reliable evidence about what transpired at the time when Exts. 34 and 35 were executed, it is not possible to accept the defendants contention that the accounts had been finally settled on September 16, 1951. This court has also expressed the view that from the findings submitted by the Trial Court on the issues framed by the High Court, it is clear that the settlement of accounts related only to Samvat Year 2007 and not to Samvat Year 2006. After a reference to certain other matters, this court has further held that there was no. substantial difference between the parties with regard to the entries in Schedule B of the plaint and that the main dispute was regarding the entries in Schedule A of the plaint. Inasmuch as neither party relied on Exts. 34 and 35 as representing a final settlement of the accounts, it was felt that to resolve the dispute it is necessary to have an account taken to ascertain what was due at the foot of the two accounts between the plaintiff and the defendant. It was also recorded that there was no. dispute raised by the defendant about his liability to pay the amounts due in the personal account and in the account of K. M. Karandikar and Company. On September 29, 1969, by consent of parties, this court appointed an advocate of the Bombay High Court, Mr. C. R. Dalvi, as Commissioner for determining the amount due at the foot of the accounts and to determine the liability of the defendant to the plaintiff. In this regard, certain directions had also been given.10. The Commissioner has now submitted his findings dated June 17, 1972. He has ultimately held that the plaintiff has failed to prove the transactions and that it is not possible to ascertain the amount due at the foot of the accounts and to determine the liability of the defendant to the plaintiff. He has further found that the liability of the defendant can be determined only on the basis of Exts. 34 and 35.11. Mr. V. S. Desai, learned counsel for the plaintiff-appellant, very strenuously attacked the findings of the Commissioner. In view of the approach made by the Commissioner, the learned counsel for the defendant-respondent, Mr. Navnit A. Shah, found considerable difficulty in supporting the report of the Commissioner. After going through the report, we are constrained to observe that the Commissioner does not appear to have borne in mind the clear directions given by this court. Nor has he come into close grip with the points to which his attention had been focussed by this court. As we are satisfied that the Commissioners report cannot be accepted, we do not propose to deal with the various matters referred to in the said report.12. The only other alternative would be for us either to go into the various items and decide the controversy or send the appeal back to the High Court. The order dated September 29, 1969, of this court appointing Mr. C. R. Dalvi as Commissioner, clearly shows that the decree of the High Court allowing the plaintiff only a sum of Rs. 601/92/- cannot be sustained. As that order contains full reasons for not accepting the judgment and decree of the High Court in First Appeal No. 111 of 1956, we are not reiterating the same and we fully agree with those reasons. We have considered it better, in the circumstances, to set aside the Commissioners report dated June 17, 1972, as also the decree and judgment of the High Court in First Appeal No. 111 of 1956. The said appeal, No. 111 of 1956, is remanded to the High Court for fresh adjudication, having due regard to the various observations and directions contained in the order of this court dated September 29, 1969, as also in the present order.13. Counsel appearing for both the parties have agreed to treat the evidence adduced before the Commissioner, Mr. C. R. Dalvi, as evidence in the appeal subject only to any objections that any of them may have regarding their admissibility or otherwise in law. The report of Mr. Dalvi has not to be taken into account. All points arising for decision and the controversy between the plaintiff and the defendant in First Appeal No. 111 of 1956, except the plaintiffs claim for Rs. 15, 000/- as remuneration, will be adjudicated afresh by the High Court taking into account also the evidence that was let in by the parties before the Commissioner, Mr. Dalvi, and which is not objected to, as aforesaid, by any party. The High Court is at liberty to appoint a fresh Commissioner and give suitable directions, bearing in mind the aim and purpose for which Mr. Dalvi was appointed by this court by its order dated September 29, l969. It is needless to state that the claim of the plaintiff and the defence of the defendant have to be gone into and adjudicated upon item by item. The claim originally made by the plaintiff for recovery from the defendant of Rs. 15, 000/-, as remuneration for helping him and for giving guarantee, need not be considered by the High Court. It has been stated earlier by us that the said claim was not pressed in this court and it has been so recorded in this Courts order dated September 29, 1969. The parties will be at liberty to produce additional evidence both before the High Court, as well as before the Commissioner that may be appointed by the High Court. After a full and fair consideration, the High Court will pass suitable decree. The costs of this appeal, together with the expenses incurred by the parties before the Commissioner, Mr. Dalvi, as also the costs of the hearing of the First Appeal No. 111 of 1956 before the High Court on a former occasion and now, will abide and are to be provided for in the fresh decree that is to be passed.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. Mr. V. S. Desai, learned counsel for they strenuously attacked the findings of the Commissioner.In view of the approach made by the Commissioner, the learned counsel for the. Navnit A. Shah, found considerable difficulty in supporting the report of the Commissioner.After going through the report, we are constrained to observe that the Commissioner does not appear to have borne in mind the clear directions given by this court. Nor has he come into close grip with the points to which his attention had been focussed by this court. As we are satisfied that the Commissioners report cannot be accepted, we do not propose to deal with the various matters referred to in the said report.12. The only other alternative would be for us either to go into the various items and decide the controversy or send the appeal back to the High Court. The order dated September 29, 1969, of this court appointing Mr. C. R. Dalvi as Commissioner, clearly shows that the decree of the High Court allowing the plaintiff only a sum of Rs. 601/92/cannot be sustained. As that order contains full reasons for not accepting the judgment and decree of the High Court in First Appeal No. 111 of 1956, we are not reiterating the same and we fully agree with those reasons. We have considered it better, in the circumstances, to set aside the Commissioners report dated June 17, 1972, as also the decree and judgment of the High Court in First Appeal No. 111 of 1956. The said appeal, No. 111 of 1956, is remanded to the High Court for fresh adjudication, having due regard to the various observations and directions contained in the order of this court dated September 29, 1969, as also in the present order.13. Counsel appearing for both the parties have agreed to treat the evidence adduced before the Commissioner, Mr. C. R. Dalvi, as evidence in the appeal subject only to any objections that any of them may have regarding their admissibility or otherwise in law. The report of Mr. Dalvi has not to be taken into account. All points arising for decision and the controversy between the plaintiff and the defendant in First Appeal No. 111 of 1956, except the plaintiffs claim for Rs. 15, 000/as remuneration, will be adjudicated afresh by the High Court taking into account also the evidence that was let in by the parties before the Commissioner, Mr. Dalvi, and which is not objected to, as aforesaid, by any party. The High Court is at liberty to appoint a fresh Commissioner and give suitable directions, bearing in mind the aim and purpose for which Mr. Dalvi was appointed by this court by its order dated September 29, l969. It is needless to state that the claim of the plaintiff and the defence of the defendant have to be gone into and adjudicated upon item by item. The claim originally made by the plaintiff for recovery from the defendant of Rs. 15,as remuneration for helping him and for giving guarantee, need not be considered by the High Court. It has been stated earlier by us that the said claim was not pressed in this court and it has been so recorded in this Courts order dated September 29, 1969. The parties will be at liberty to produce additional evidence both before the High Court, as well as before the Commissioner that may be appointed by the High Court. After a full and fair consideration, the High Court will pass suitable decree. The costs of this appeal, together with the expenses incurred by the parties before the Commissioner, Mr. Dalvi, as also the costs of the hearing of the First Appeal No. 111 of 1956 before the High Court on a former occasion and now, will abide and are to be provided for in the fresh decree that is to be passed.