SHOES N SHAPES Vs. J K TRADERS

JUDGEMENT

(1.) This is an appeal directed against the order of the Additional District Judge, Delhi dated 24th October, 2005, whereby the learned Additional District Judge has decreed the suit of the plaintiff in the sum of Rs.9,48,879/- together with interest @ 18% per annum pendente lite and future from the date of filing till realisation along with cost of the suit.

(2.) The brief facts of the case of the plaintiff are that the plaintiff and the defendant entered into an agreement to the effect that the plaintiff would sell leather goods to the defendant against invoices and the defendant was to make payment against those goods sold to the defendant by the plaintiff. The plaintiff supplied goods to the defendant on various dates against which the defendant had been making payments regularly. But the defendant did not make payment against some of the invoices against which the goods were sold to the defendant. As a result of the default committed by the defendant, a sum of Rs.9,48,871.18 paise has become due in favour of the plaintiff and against the defendants. The plaintiff has also claimed interest @ 18% per annum on the suit amount from the date of filing till realisation. The plaintiff filed the suit under Order 37 of the Code of Civil Procedure before the learned trial court. The summons of the case were served upon the defendant and thereafter the defendant entered appearance. The defendant moved an application under Order 37 rule 3 (5) of the Code of Civil Procedure and they prayed for permission to defend the suit. The defendant/appellant submitted in the application that an agreement was entered into between the plaintiff and the defendant to sell the goods on behalf of the plaintiff in their showroom and in the said agreement, it was agreed that the defendant will provide space in their showroom for selling the leather goods of the plaintiff for which the plaintiff will pay a minimum amount of Rs.25,000/- per month or 30% commission on total sale whichever was higher and as per the record maintained by the defendant, nothing is due to be paid to the plaintiff by the defendant. The defendant further stated that as per agreement certain goods which were not sold at the showroom shall be returned to the plaintiff and for that reason, the plaintiff has filed a false suit against the defendant for recovery of the aforesaid amount. The defendant has relied upon annexures 'A' and 'B' and letter dated 09.09.2002, annexure 'C', wherein the terms and conditions had been conveyed to the plaintiff by the defendant and also the letter dated 05.09.2002 wherein the plaintiff has accepted the terms and conditions set out in the above letters by the defendant. After hearing the arguments of both the parties, the learned trial court dismissed the application for leave to defend the suit moved under Order 37 rule 3(5) of the Code of Civil Procedure by the defendant and decreed the suit of the plaintiff as aforesaid.

(3.) On the other hand, learned counsel for the respondent argued that there was no such agreement entered into between the parties and whatever goods were supplied against the voucher by the plaintiff to the defendant were on the basis of an outright sale of those items against which the plaintiffs were under an obligation to make the payments. But against some of the invoices, the defendants have failed to make payments and, therefore, the plaintiff was compelled to file the suit before the learned trial court after serving legal notice on the defendant.