Arun Kumar, J. - (1.) . These appeals arise from a suit filed by respondent in the court of Subordinate Judge at Ootacamund, State of Tamil Nadu on 28th October, 1972. The parties to the suit are closely related. Respondent Taraben is the widow of Pravinlal Madhvani while Santokben, original defendant No. 1, was the widow of Vallabhdas Madhvani real brother of Pravinlal Madhvani. Santokben died during the pendency of the litigation. Her three sons who were defendants No. 2 (Ramnik), No. 3 (Praful) and No. 4 (Rajnikant) in the suit, were appellants in these appeals. Appellants Santokben and her son Praful died during pendency of the appeals. Necessary steps regarding substitution have been taken. Appellant No. 4 M/s. Bengorm Nilgiri Plantations Co. is a partnership firm.
(2.) . The family owned a tea estate in the Neelgiris area. It was known as Bengorm Tea Estate. It was a co-ownership property of the members of the family. A partnership firm was constituted under the name and style of Bengorm Tea Plantations to manage the tea estate. The partnership did not have any proprietory interest in the estate. The shares of the parties in the tea estate as well as in the partnership firm are not in dispute. Pravinlal died on 4th May, 1969. He left behind a will. Taraben respondent No. 1 claiming to be sole executor of the estate of her husband Pravinlal filed the present suit claiming the following reliefs: " 18(a) Decree for partitions by metes and bounds of the plaintiff's 33% share in Bengorm Estate mentioned in Schedule to the Plaint and separate possession thereof against defendants 1 to 4 and/or 6 in severally. (b) A decree for accounts against the defendants for the 30% share of Pravinlal Vithaldas Madhvani deceased in the defendant No. 6 in respect of profits and monies to his credits and in the assets of the firm including stocks in trade, stores and spares, standing crops, investments, provisions, reserves and goodwill as mentioned in paragraph 12 of the plaint and decree for the amount found to be due to the plaintiff as ascertained in this suit on enquiry with interest at 6% per annum from 4th May, 1969. (c) Decree for accounts for mesne profits and/or illegal gains from 5th May, 1969 till payment as mentioned in paragraph 13 of the plaint and decree for the amount found to be due to the plaintiff as ascertained in this suit on enquiry with interest at 6% per annum from the date herein. " . A preliminary decree was passed by the trial court on 13th April, 1978 granting a decree in favour of the plaintiff (respondent herein) for accounts against defendants for the 30% share of Pravinlal in the partnership firm with interest thereon at the rate of 6% per annum from 4th May, 1969 till realisation. The suit with respect to other reliefs was dismissed. The plaintiff appealed against the said preliminary decree with regard to relief denied to her by the trial court. During the pendency of the appeal before the High Court on 21st November, 1980, the plaintiff (appellant before the High Court) applied for amendment of the plaint. An amendment was sought with respect to the rate of interest as mentioned in paragraphs 18(b) and 18(c) of the plaint. The plaintiff had originally claimed interest at the rate of 6% per cent annum in both these paras of the plaint. By amendment the rate of interest was sought to be revised from 6% per annum to 13% per annum. The High Court disposed of the amendment application simultaneously with the appeal against the preliminary decree vide judgment and orders dated 16th December, 1985. The only amendment allowed was with respect to rate of interest in para 18(c) of the plaint. The plaintiff was allowed to amend the said prayer so as to raise the claim with respect to rate of interest from 6% per annum to 13% per annum. Similar amendment sought in para 18(b) of the plaint was specifically rejected. So far as appeal against preliminary decree passed by the trial Court is concerned, the Division Bench of the Madras High Court allowed the same, thereby the prayer of the plaintiff with respect to 33% share in the Bengorm Tea Estate and mesne profits after the death of Pravinlal Vithaldas Madhvani on 4th May, 1969 alongwith interest on the amount found due by way of mense profits was allowed. The preliminary decree passed by the trial Court on 13th April, 1978 with respect to prayer contained in para 18(b) of the plaint became final. On the question of interest with respect to para 18(c) of the plaint even though the High Court had allowed the amendment to enable the plaintiff to claim interest at the rate of 13% per annum, the High Court took note of amendment of Section 34 C.P.C. in the meanwhile and treating the suit claim as a commercial transaction, allowed interest at the rate of interest as charged by nationalised banks during the relevant years from time to time on commercial loans. The trial court passed a final decree on 6th January, 1988 and determined a sum of Rs. 26,33016.33 paise as due by way of mesne profits. It awarded simple interest thereon at the rate of 13% per annum till realization. It also passed a decree for Rs. 67,111.37 paise in pursuance of prayer in para 18(b) of the plaint with simple interest at the rate of 6% per annum w.e.f. 5th May, 1969 till realisation. . The appellants appealed against the said final decree before the Madras High Court. During the pendency of the appeals, with the agreement of counsel for the parties, the High Court appointed a Commission to determine the amount of mesne profits payable to the plaintiff in the suit. The Commission filed its report on 2nd September, 1990 determining a sum of Rs. 33,32,847.83 in this behalf. Ultimately by its impugned judgment dated 23rd September, 1993, the High Court dismissed the appeals filed by the present appellants against the final decree of the trial court. It modified the decree of the trial Court and passed a final decree in the following terms : "The respondents/defendants do pay the petitioner/plaintiff the sum of Rs. 78,33,560/- by way of mesne profits and interest due for the period from 5.5.1969 to 5.8.1986 with simple interest at the rate of 13 per cent per annum of Rs. 39,41,920/- from 6.8.1986 till date of realisation and defendants do also pay the plaintiff the sum of Rs. 1,23,111.37 by way of her share of good-will, standing crops and missing items with simple interest at the same rate of 13 per cent per annum on this sum from 5.5.1969 till date of realization and the proportionate cost. The petitioner/plaintiff should pay the court fee at the time of execution."
(3.) . On the question of interest, the High Court has in Para 42 of the impugned judgment noted that it was wrong on the part of the High Court while passing the preliminary decree vide judgment dated 16th December, 1985 to award interest as per the rate of interest charged by nationalised banks on commercial transactions from time to time. It was also felt that the High Court ought not to have proceeded on the basis of amended Section 34 of the Code of Civil Procedure. Yet the High Court did not interfere with award of interest only for the reason that the Special Leave Petition against the preliminary decree had been dismissed by this Court. The appellants who were defendants in the suit have filed the present appeals against the judgment dated 23rd September, 1993 of the High Court. During the hearing the learned counsel for appellants raised three points for decision of this Court in these appeals : I. Determination of quantum of mesne profits payable to the respondent-plaintiff by the appellants; II. Rate of interest to be awarded on the decretal amount; III. Adjustment of admitted liability of Pravinlal towards the partnership firm in the sum of Rs. 4,13,364.24 paise. Point No. 1 . So far as the question of determination of quantum of mesne profit is concerned the liability to pay is not being disputed. The only dispute is with respect to the determination of amount payable by way of mesne profits. As pointed out earlier the Division Bench of the High Court had appointed a Commission headed by a retired Judge of the Madras High Court and assisted by two Chartered Accountants, one nominated by each party, to carry out the exercise regarding determination of mesne profits. The Commission filed its report in the High Court. The High Court arrived at a finding regarding quantum of mesne profits after looking into the accounts, the report of Commission and other relevant facts and material. We have no reason to differ with the view of the High Court on this aspect. We are not required to reappreciate the material. As a matter of fact during the course of hearing, counsel for the appellant indicated willingness to go by the Commissioner's report in this behalf. Therefore, we accept the finding of the High Court on this issue. Total amount by way of mesne profits as per the impugned judgment of the High Court comes to Rs. 39,41,920/-. This figure does not include interest.;