Full Judgment Text
* HIGH COURT OF DELHI AT NEW DELHI
+ FAO (OS) 125/2006
M/s Texcomash Export ..... Appellant
Through Mr.C. Mukund with Mr.Ashok Jain
and Mr.Pankaj Jain, Advocates
versus
M/s Sunny International ..... Respondent
Through Mr.D.S. Narula, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR
1. Whether reporters of the local papers be
allowed to see the judgment ?n
2. To be referred to the Reporter or not ?n
3. Whether the judgment should be reported in the Digest ?n
O R D E R
% 4.8.2008
This appeal is preferred by the original defendant against
th
the order dated 9 January, 2006 passed in IA No.5765/2004
rejecting the prayer for rejection and/or dismissal of the plaint
under Order VII Rule 11 read with Order XII Rule 6 of the Code of
Civil Procedure.
There was an agreement entered into between the parties
as per which the defendant agreed to give commission to the
plaintiff for the orders procured. The commission settled as per
FAO(OS) No.125/2006 page 1 of 3
the agreement was at the rate of Rs.3/- per garment meant for
children and at the rate of Rs.5/- per garment meant for ladies.
The present suit is filed by the plaintiff (respondent herein) for
rendition of accounts and for recovery of money wherein
commission is claimed at the rate of 4.1% of the sales. In the suit
an IA No.5765/2004 was preferred by the appellant / defendant
for rejection / dismissal of the plaint. The prayer in the
application is mainly based on admission made by the plaintiff
through its agent in the proceedings before the DRI. A perusal of
the said statement would show that though the said authorised
representative at one place admitted that the commission was
agreed at the rate of Rs.3/- per garment meant for children and
Rs.5/- per garment meant for ladies and entire commission at
that rate had been paid. At the same time the said
representative also mentioned about the aforesaid letter dated
th
9 April, 1993 as per which, the plaintiff was entitled to
commission of 4.1%. Thus, there is no clear admission on the
part of the plaintiff.
It is also contended that the unilateral act on the part of the
plaintiff in issuing a letter completely in variance with the
understanding as expressed in the written agreement is not
FAO(OS) No.125/2006 page 2 of 3
maintainable since it is not even the case of the plaintiff that the
defendant had admitted to such change of condition in the
th
written letter dated 9 April, 1993. In any event it is urged that
th
even if the letter dated 9 April, 1993 is stated to be a genuine
document, the same cannot have the effect of displacing the
written agreement. In our opinion, all these arguments can be
agitated at the time of trial of the suit and it is not possible to
accede to the prayer of the appellant for summary dismissal of
the suit under Order VII Rule 11 of the Code of Civil Procedure.
In the result, the appeal is dismissed.
CHIEF JUSTICE
(S.MURALIDHAR)
August 04, 2008 JUDGE
“nm”
FAO(OS) No.125/2006 page 3 of 3
+ FAO (OS) 125/2006
M/s Texcomash Export ..... Appellant
Through Mr.C. Mukund with Mr.Ashok Jain
and Mr.Pankaj Jain, Advocates
versus
M/s Sunny International ..... Respondent
Through Mr.D.S. Narula, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S.MURALIDHAR
1. Whether reporters of the local papers be
allowed to see the judgment ?n
2. To be referred to the Reporter or not ?n
3. Whether the judgment should be reported in the Digest ?n
O R D E R
% 4.8.2008
This appeal is preferred by the original defendant against
th
the order dated 9 January, 2006 passed in IA No.5765/2004
rejecting the prayer for rejection and/or dismissal of the plaint
under Order VII Rule 11 read with Order XII Rule 6 of the Code of
Civil Procedure.
There was an agreement entered into between the parties
as per which the defendant agreed to give commission to the
plaintiff for the orders procured. The commission settled as per
FAO(OS) No.125/2006 page 1 of 3
the agreement was at the rate of Rs.3/- per garment meant for
children and at the rate of Rs.5/- per garment meant for ladies.
The present suit is filed by the plaintiff (respondent herein) for
rendition of accounts and for recovery of money wherein
commission is claimed at the rate of 4.1% of the sales. In the suit
an IA No.5765/2004 was preferred by the appellant / defendant
for rejection / dismissal of the plaint. The prayer in the
application is mainly based on admission made by the plaintiff
through its agent in the proceedings before the DRI. A perusal of
the said statement would show that though the said authorised
representative at one place admitted that the commission was
agreed at the rate of Rs.3/- per garment meant for children and
Rs.5/- per garment meant for ladies and entire commission at
that rate had been paid. At the same time the said
representative also mentioned about the aforesaid letter dated
th
9 April, 1993 as per which, the plaintiff was entitled to
commission of 4.1%. Thus, there is no clear admission on the
part of the plaintiff.
It is also contended that the unilateral act on the part of the
plaintiff in issuing a letter completely in variance with the
understanding as expressed in the written agreement is not
FAO(OS) No.125/2006 page 2 of 3
maintainable since it is not even the case of the plaintiff that the
defendant had admitted to such change of condition in the
th
written letter dated 9 April, 1993. In any event it is urged that
th
even if the letter dated 9 April, 1993 is stated to be a genuine
document, the same cannot have the effect of displacing the
written agreement. In our opinion, all these arguments can be
agitated at the time of trial of the suit and it is not possible to
accede to the prayer of the appellant for summary dismissal of
the suit under Order VII Rule 11 of the Code of Civil Procedure.
In the result, the appeal is dismissed.
CHIEF JUSTICE
(S.MURALIDHAR)
August 04, 2008 JUDGE
“nm”
FAO(OS) No.125/2006 page 3 of 3