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2012 DIGILAW 2011 (BOM)

South Konkan Distillery v. Santosh Prabhakar Naik

2012-10-17

A.P.LAVANDE

body2012
Judgment Heard Mr. S. G. Bhobe, learned Advocate for the petitioners. Since respondent no.1 was the only the contesting party, notice was issued only to respondent no.1 for final disposal. Inspite of service, respondent no.1 has chosen not to put in appearance. 2. Rule. Heard forthwith. 3. By this petition under Article 227 of the Constitution of India, the petitioners challenge orders dated 7.6.2011 and 19.1.2012 passed by learned Civil Judge, Senior Division, Margao in Special Civil Suit No. 178/1994/III(O)/Regular Civil Suit No. 612/2010/III(N) by which the application filed by respondent no.1 under Order XVI Rule 6 of C.P.C. has been allowed and the application seeking review of the order dated 7.6.2011 has been dismissed. 4. The petitioners are defendants nos. 1 and 4 in the above suit filed by respondent no. 1 against the petitioners and respondent nos. 2 to 5 seeking recovery of money. 5. On 28.10.2010, the plaintiff filed an application seeking direction against defendant nos. 1 to 5 to produce duly audited balance sheets of defendant no.1 for the years 1982 to 1994. 6. On behalf of the petitioners i.e defendant nos. 1 and 4, reply was filed stating therein that they were not in possession of audited balance sheets of defendant no.1 for the years 1982 to 1994 but they were in possession of the copy of the balance sheet for the financial year ending 31.3.1985. The said defendants stated in reply that they were ready to produce the said copy without prejudice to their rights and contentions in the suit. 7. Learned trial Judge, by order dated 7.6.2011 directed defendant nos. 1 and 4 to produce duly audited balance sheets of defendant no.1 for the years 1982 to 1994 on the condition that they could not be treated as admitted by these defendants. Thereafter defendant nos. 1 and 4 filed review application which was dismissed by learned trial Judge by order dated 19.1.2012. Both these orders have been challenged by filing the present petition. 8. Mr. Bhobe, therefore, submitted that the impugned orders passed by learned trial Judge discloses error of law apparent on the face of the record and, therefore, are liable to be quashed and set aside. As already stated above, respondent no.1 inspite of service, has chosen not to put in appearance in the petition. 9. 8. Mr. Bhobe, therefore, submitted that the impugned orders passed by learned trial Judge discloses error of law apparent on the face of the record and, therefore, are liable to be quashed and set aside. As already stated above, respondent no.1 inspite of service, has chosen not to put in appearance in the petition. 9. Having considered the submissions made by the learned counsel for the petitioners and having perused the record, I am of the considered opinion that both the impugned orders are liable to be set aside. Once defendant nos. 1 and 4 stated in their reply that they were not in possession of the audited balance sheets of defendant no.1 for the years 1982 to 1994 and further stated that they were in possession of only copy of the balance sheet for the year ending 31.3.1985, the only order learned trial judge could have passed was to direct defendant nos. 1 and 4 to produce the said copy of the balance sheet. Needless to mention that what is the legal effect of the denial by the defendants that they were in possession of the audited balance sheets for the years 1982 to 1994 is for the trial judge to decide on the basis of the evidence led by the parties and it would be appropriate for the trial judge to draw appropriate inferences depending upon the evidence led by the parties. 10. In view of the above, the orders dated 7.6.2011 and 19.1.2012 passed by learned Civil Judge, Senior Division, Margao in Special Civil Suit No. 178/1994/III(O)/Regular Civil Suit No. 612/2010/III(N) are quashed and set aside. The petitioners are directed to produce copy of the balance sheet of defendant no.1 for the year ending 31.3.1985 without prejudice to their rights and contentions. 11. The petition stands disposed of in the aforesaid terms, with no order as to costs.