Hazel Mercantile Limited vs Interglobe Trading Fze
2022 Latest Caselaw 5770 Bom

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       ORDINARY ORIGINAL CIVIL JURISDICTION
                             [ COMMERCIAL DIVISION ]

                       SUMMONS FOR JUDGMENT NO.17 OF 2020
                                           IN
                      COMMERCIAL SUMMARY SUIT NO.602 OF 2018

Hazel Mercantile Ltd.                                        .. Applicant-Plaintiff
           Vs.
Interglobe Trading FZE                                       .. Defendant


Mr. Vivek Kantawala, with Mr. Amey Patil and Mr. Shanay Bafna, i/by Vivek
Kantawala & Co., for the Applicant-Plaintiff.
Ms. Suvarna Joshi for the Defendant.


                                                      CORAM : A. K. MENON, J.

                                                      DATE      : 23RD JUNE, 2022.

P.C. :

1. The plaintiff seeks a decree in a sum of Rs.1,60,13,540.07 towards the amount

of brokerage due from the defendant pursuant to an agreement in writing between

the parties, copy of which is annexed at Exhibit-B to the plaint. The agreement is

titled as "Non-Exclusive Broker Agreement" dated 31 st May 2012.

2. It is contended by the plaintiff's counsel that the plaintiff is entitled to

brokerage pursuant to numerous transactions under which the plaintiff facilitated

purchase of various quantities of chemicals manufactured by the parties in Iran and

that these products having been supplied to the defendant, the plaintiff was entitled

to claim brokerage based on the provisions of the said agreement. The plaint proceeds

11-SJ-17-2020.doc Dixit on the basis that after making up of accounts, the defendant confirmed that a balance

sum of USD 1,611,03.77 is due towards brokerage. The defendant has acknowledged

liability in a letter dated 19 th June 2017 addressed to the plaintiff, copy of which is at

Exhibit-E to the plaint. Having confirmed the balance sum due, Mr. Kantawala states

that the plaintiff is entitled to a decree in the aforesaid sum.

3. In the course of submissions, Mr. Kantawala states that there is a need for

amending particulars of claim since the average rate of the U.S. Dollar prevalent at

the time of execution of the balance confirmation letter was slightly lower and

accordingly, the suit claim stands revised to Rs.1,03,70,249.67. He seeks leave to

amend the prayer clause in the plaint and carry out consequential amendments in the

body of the plaint to incorporate the revised figure.

4. On behalf of the defendant, Summons for Judgment is opposed by learned

Advocate by relying upon an affidavit-in-reply dated 12 th March 2020 of one Karan

Singh Karki, who has contended that the contents of the plaint are false. He however

admits that the defendant used to procure material from Iran through the plaintiff in

accordance with the agreements between the parties. He admits that the plaintiff

facilitated purchase of material under the brokerage agreement. The deponent has

also disclosed names of various suppliers. The brokerage agreement is admitted

however it is contended that in the second half of 2015, there was major turbulence

in crude oil and economies worldwide had crashed, due to which buyers had

defaulted in their obligations and it became difficult to recover monies from those

purchasers. As a result, a chain reaction followed and the defendant could not fulfill

11-SJ-17-2020.doc Dixit its obligations to make payments to its Iranian suppliers as well as the plaintiff. The

defendant claims that "they had no option but to leave everything in Dubai and come

back to Nepal".

5. Surprisingly, the affidavit does not disclose authority of the deponent or his

address in Nepal and how affidavit came to be signed in Mumbai. Considering the

nature of the defence and the unconditional admission of liability in Exhibit-E to the

plaint, I have no hesitation in holding that the defendant has not disclosed any

bonafide defence that would entitle him to unconditional leave. However, one

opportunity can be granted if the defendant complies with the condition that I

propose to impose. In view thereof, I pass the following order :-

(i) Leave to amend to correct the revised figure of the suit claim,

being Rs.1,03,70,249.67, in the body of the plaint, prayer clause

and in particulars of claim. Amendment to be carried out during

the course of the day today. Re-verification is dispensed with.

(ii) Subject to deposit of a sum of Rs.1,03,70,249.67 in this court

within a period of eight weeks from today, defendant is permitted

to file its written statement.

(iii) If the amount is deposited within the stipulated time and the

written statement is filed, list the Suit for framing issues

forthwith thereafter.

(iv) If the amount is deposited, the Prothonotary and Senior Master to

invest the said amount in a fixed deposit in a nationalized bank,

11-SJ-17-2020.doc Dixit initially for a period of one year, to be renewed thereafter from

year to year till further orders.

(v) In the event of failure to deposit the aforesaid amount within the

stipulated time, liberty is granted to the plaintiff to apply for a

decree after obtaining a certificate of non-deposit.

(vi) In the meanwhile, considering the fact that the deponent of the

affidavit has not disclosed either his address or his authority to

sign the affidavit, the learned counsel for the defendant shall

provide all known addresses of the deponent to the plaintiff's

Advocate within one week from today.

(vii) Summons for Judgment is disposed in the above terms.

                                                                                                       (A.K. MENON, J.)




        Digitally signed

SNEHA   by SNEHA
        ABHAY DIXIT        11-SJ-17-2020.doc
ABHAY   Date:

                           Dixit
        2022.06.24
DIXIT   17:42:28
        +0530