1 sj402-09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGEMENT NO.402 OF 2009 IN SUMMARY SUIT NO.2047 OF 2009 Agrimpex India Pvt.Ltd. .. Plaintiffs Versus Mahek Food Industries & Anr. .. Defendants Mr.Sanjay Kothari with Avinash Joshi, Vipul Bilve i/b. M/s.Mulla & Mulla for plaintiffs Mr.Deepak Thakkar i/b. Mr.Kalpesh Parekh for defendant No.1 Ms.Anita Castileno i/b. M/s.Zohair & Co. for defendant No.2. CORAM : S.C.DHARMADHIKARI, J. DATE : 9th November 2011. P.C.: 1] Heard learned Counsel for the parties. Perused the plaint and annexures and the affidavits filed in reply and rejoinder. 2] At the outset the plaintiff is not seeking any relief against defendant No.2 in the summons for judgement as also in the plaint. Therefore, the second defendant is entitled to unconditional leave to defend the suit. 3] As far as first defendant is concerned, the pleading is that the plaintiff 2 sj402-09.doc introduced certain foreign buyers to the first defendant and the first defendant, therefore, exported the agro products which were shipped through the second defendant. On receipt of such products by the foreign buyer identified by the plaintiff, the plaintiffs became entitled to the sums pursuant to the agreement reached between parties, copy of which is at Annexure C to the plaint. 4] It is contended that the agreement refers to a pre-existing arrangement and, therefore, it is constituting a contract for payment of commission by first defendant to the plaintiff. The plaintiffs claim is that under the shipment contract which is referred to in the plaint and particularly in para 3 of the same, a total of 5070 MT agro product was shipped in 12 different consignments and the second defendant has received the amount from the buyers under the corresponding letter of credit. The bills of lading and the invoices are annexed. Therefore, it is stated that the first defendant entered into contract Annexure C on principal to principal basis to pay the commission at U.S.$ 7 per MT to the plaintiff. The plaintiff has fulfilled its part of the contract and, therefore, it is entitled to commission. The suit claim is thus based on written contract as evidenced by Annexure C and the undisputed liability flowing from the shipment and the evidence thereof. 5] At the same time, there is a reference to a debit note in para 12 of the plaint (Annexure H) in the reminder. Thus, the claim of the plaintiff is stated to be of commission on the total quantity of import commitment made by the buyer nominated by the plaintiff. In this case there is a reference to one named buyer. 3 sj402-09.doc Therefore, the argument is that any dispute in relation to any other and distinct arrangement and unconnected with the suit arrangement will not make the defence raised by the defendant No.1 bonafide. Thus, this is an attempt to confuse the issues and to get out of a written contract. In such circumstances, the suit is maintainable as summary suit. 6] On the other hand, in the affidavit in reply, it has been pointed out that the material and relevant facts have been suppressed. What has been pointed out is that the Managing Director of the plaintiffs Mr.Arun Shah personally visited office of defendant No.1. He introduced himself as commission agent in sugar and maize. There is oral agreement and, thereafter, it was specifically agreed that the defendant No.1 will be investing crores of rupees while commission of plaintiff will be meager in percentage. It was specifically agreed that payment of commission will be made only on the foot of the account inter linked with the payment and performance by buyers of sugar and/or maize respectively. The commission will not be based on contract to contract basis. There is a reference made to contract of 2007 with Singapore party and as to how the shipment thereunder came to be made. There is a reference to the loss which was suffered allegedly by defendant No.1. 7] The argument of the plaintiff's Counsel is that this is unconnected with the suit claim inasmuch as the commission was to be paid on contract to contract basis and any oral understanding is, therefore, not relevant at all. However, it is 4 sj402-09.doc pertinent to note that apart from suppression of the oral agreement, what has been argued on behalf of first defendant is that there is forgery and fabrication of the contract for the purpose of filing of the suit inasmuch as the contract, a copy of which is at Annexure B to the plaint is between the Egyptian party and defendant No.1. The plaintiff is not party thereto yet there is a rubber stamp of the plaintiff affixed to the same. Thus, there is no explanation as to how the rubber stamp of plaintiff was affixed. Similarly, the proforma invoice Annexure D is also stated to be forged and fabricated. The proforma invoice is dated 23rd October 2007. It is between defendant No.2 and the Egyptian party and defendant No.1. The plaintiff has nothing to do with this proforma invoice or the contract referred to therein, yet, there is a rubber stamp affixed. In such circumstances, there is a serious dispute as to whether the commission is payable on contract to contract basis or on sum total of all transactions and contracts finalised by defendant No.1 with the foreign buyers at the instance of plaintiff, which raises arguable and triable issues. The explanation that is offered in the rejoinder with regard to affixing of the rubber stamp and whether commission at all is payable without any proof of payment being received are matters which would clearly go to show that the suit claim cannot be said to be falling within the purview of Order XXXVII. This is a case of claim for commission on the basis of contracts which have been finalised between defendant No.1 and foreign buyers at the instance of plaintiffs and because of its intervention. In these circumstances and for the reason that this claim is disputed even on the basis of the correctness of the contract and documents annexed to the plaint, that I am of the opinion that the defendants are entitled to unconditional 5 sj402-09.doc leave to defend. The suit is, therefore, transferred to the list of commercial causes. Defendants to file written statements within a period of 12 weeks from today. Discovery and inspection to be completed within that period. (S.C.DHARMADHIKARI, J)