USHA Vs. PUNJAB AND SIND BANK

JUDGEMENT

(1.) THIS is a suit for recovery of Rs 65,84,252/-. The plaintiff, who is carrying business in the name and style of M/s Universal Exports claims to be a commission agent who used to introduce exporters/sellers to the buyers/importers and receives commission from the seller. In the suit filed through her attorney Shri Gulshan Gandhi, the plaintiff has alleged that defendant No.2, which is a manufacturer of cotton yarn through the plaintiff as a commission agent agreed to supply yarn to M/s Exports India vide Revolving L.C. No. 44/95 for Rs 2 crores revolving three times. The plaintiff who had introduced defendant No.2 to the buyer was to receive commission at the rate of 5% FOB value of the L.C. The finalization of the deal is alleged to have been preceded by an agreement/Memorandum of Understanding (MoU) dated 22nd July, 1995 between the plaintiff and defendant No.2 for payment of commission to the plaintiff at the rate of 5% of the FOB value, after realization of export sale proceeds. The plaintiff also claims that defendant No.2 had also agreed not to entertain a buyer directly or indirectly. In terms of the MoU dated 22nd July, 1995, defendant No.1 being the banker of defendant No.2 furnished Bank Guarantee No. 31/90736/95 dated 21st September, 1995 for Rs 30 lacs, thereby standing guarantor for payment of commission amount under the L.C. merely on demand from the plaintiff and on failure of the seller to pay the amount of commission.

(2.) IT has also been alleged that despite contractual obligation in this regard, defendant No.2 failed to supply copies of all the invoices to the plaintiff. Later, the plaintiff came to know about certain invoices, whereby goods were shifted by defendant No.2 to Exports India. IT is also alleged that despite demand raised by the plaintiff for payment of commission, the defendants connived with each other and instead of paying the amount of Rs 27,31,494/- which was due to the plaintiff, only a sum of Rs 13,65,747/- was paid to her. The case of the plaintiff is that defendant No.2 had sold goods worth more than Rs 9.5 crores and she was entitled to commission at the rate of 5% of that amount, but was paid commission only at the rate of 2.5% on the transactions amounting to Rs 5,46,29,903/-. The plaintiff has, therefore, claimed a sum of Rs 34,34,252 as principal sum towards commission payable to her alongwith interest thereon at the rate of 18% from 1st January, 1996 to 30th November, 1998, amounting to Rs17,51,468/-. She has also claimed a sum of Rs 13,50,000/- towards damages for mental agony, tension and loss of health and Rs 48,532/- towards documentation and miscellaneous expenses.

(3.) THE following issues were framed from the pleadings of the parties:-