AKHTAR ALI Vs. BIMLA DEVI

JUDGEMENT

(1.) By this application under Order XXXVII Rule 3 (5) CPC the Defendants seek unconditional leave to defend.

(2.) Learned counsel for the Defendants/applicants contends that as per Para-7 of the plaint it is stated that the commission of the Plaintiff was enhanced to on flat rate of 10% on all products of Defendant No. 1 w.e.f. 1st November, 2005 on the basis of verbal agreement. For enforcement of the terms of verbal agreement, no suit under Order XXXVII CPC is maintainable. Further no invoices or bills of exchange have been filed thus the present suit is not maintainable under Order XXXVII CPC. The case of the Plaintiff is based allegedly on the statements of account which show varying percentage of commission awarded, that is, 5%, 7.5%, 10% thus the claim of the Plaintiff on the basis of the documents filed itself stands falsified that the parties verbally settled commission @10% which has not been awarded to the Plaintiff. Further no documents of the year 2009-2010 have been filed by the Plaintiff to base the claim. All accounts had been settled between the Plaintiff and the Defendants and that is why no document of the contemporary period is available. It is an admitted fact that the Plaintiff had stopped working for the Defendant vide its letter dated 10th October, 2008 and all the works referred have come into existence in 2008.

(3.) Learned counsel for the Plaintiff on the other hand contends that the Plaintiff has relied upon the documents of the Defendants which itself show that the Plaintiff was entitled to a commission @10%. In view of this admitted liability, no leave to defend is required to be granted to the Defendants. The Defendants have concealed material facts, the defence raised by the Defendants is sham and thus no leave to defend be granted. Reliance is placed on Mechalec Engineers and Mfr. vs. Basic Equipment Corporation, 1977 RLR 184.