GURDEV SINGH Vs. SHRUTI FASTNERS PVT. LTD

JUDGEMENT

(1.) THE plaintiff in CS(OS) No.767/2010 Mr. Gurdev Singh as also the plaintiff in CS(OS) No.768/2010 namely Mr. Jaspal Singh were employed with the defendant no.1 company till 31.12.2006. The plaintiffs claim that even after leaving the employment of defendant no.1, they as per their agreement with defendant no.1 were entitled to increase at the rate of one percent of the sale made by the defendant no.1. The case of these plaintiffs is that besides salary, they were also entitled to commission at the rate of one percent of the total sale of the defendant no.1 company. According to them, though the salary up to December, 2006 was paid to them, the commission remained unpaid for the period from 1.4.2002 to 31.3.2008. It is alleged in the plaint that the account between the parties were finally settled on 22.5.2008 whereby a sum of Rs.67,54,554.00 become payable to them. The amount of commission payable to them, according to the plaintiffs, was rounded off to Rs.65,00,000.00 and after adjusting the advance payment of Rs.9,75,000.00, which they had already received, the balance amount which remained payable to them was worked out to Rs.55,25,000.00. It is further alleged that defendant no.1 issued five post dated cheques of Rs.11,05,000.00 each, three in the name of Mr. Jaspal Singh and two in the name of Mr. Gurdev Singh. The cheques when presented to the bank were returned with endorsement 'account closed'. Out of these five cheques, one was drawn on UTI Bank, Green Park Branch and one was drawn on Vaish Cooperative New Bank. The plaintiffs have now sought recovery of the amount of these above referred five cheques along with interest @ 24% per annum. The principal amount claimed in the suit filed by Mr. Gurdev Singh is Rs.22,10,000.00 whereas the principal amount claimed by Mr. Jaspal Singh is Rs.33,15,000.00.

(2.) IN the applications for leave to contest the suits, the defendants have, inter alia, alleged that (i) no commission was ever agreed to be paid either to Mr. Gurdev Singh or to Mr. Jaspal Singh, (ii) The signatures of the defendant no.2 on the cheques have been forged, (iii) the cheque book from which four cheques of UTI Bank have been taken was issued on 10.12.2004 whereas the cheque book from which cheque of Vaish Cooperative New Bank has been taken was issued on 25.2.2003, (iv) as many as 66 cheque books from Vaish Cooperative Bank were issued after issue of the cheque book from which the cheque in question was taken out and 60 cheque books of 50 leaves each of UTI Bank were issued after the cheque book from which four cheques of UTI Bank were taken was issued and those cheques books were consumed by defendant no.1 company, (v) the bank account with UTI Bank was closed on 13.2.2007 whereas the account with Vaish Cooperative Bank was closed on 31.7.2004. This is also the case of the defendants that in fact the plaintiffs had taken personal loan from defendant no.2, which they are yet to pay and the suit filed by the defendant no.2 against them for recovery of the amount of those loans and interest thereon are pending in District Court. It is also pointed out in the applications that the suit filed by defendants no.2 were instituted prior to filing of these suits.

(3.) THERE is no documentary evidence of there being any agreement between the parties with respect to payment of commission except the settlement agreement dated 22.5.2008 which the defendants claim to be a forged document. The learned senior counsel appearing for the defendants states that their case is that the purported signatures of defendant no.2 Mrs. Asha Rani on the Settlement dated 22.5.2008 are forged. Therefore, the genuineness or otherwise of the purported signatures of defendant no.2 on the settlement is required to be gone into during trial and this itself is an adequate ground to grant unconditional leave to the defendants.