M/S Texcomash Export vs M/S Sunny International
2008 Latest Caselaw 1224 Del

*                  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

                             ORDER

% 4.8.2008

This appeal is preferred by the original defendant against

the order dated 9th 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

9th 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

written letter dated 9th April, 1993. In any event it is urged that

even if the letter dated 9th 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