Decided on December 17,2007



- (1.) THIS Regular First Appeal has been preferred by appellant against the judgment and decree dated 18. 1. 2005, passed by Mr. Mahabir Singal, additional District Judge, Delhi. Learned Judge dismissing the suit of appellant/plaintiff for recovery of Rs. 7,57,130. 32/- (Rs. Seven Lac Fifty seven Thousand One Hundred Thirty and Thirty Two Paise only) inclusive of Rs. 2,60,651. 44/- (Rs. Two Lac Sixty Thousand Six Hundred and Fifty One and Forty Four Paise only) as interest. The Trial Court held that appellant /plaintiff failed to prove his appointment as commission agent by defendants/respondents for marketing of their finished leather products for delhi and Agra territories. Hence he was not entitled to the suit amount claimed as commission.
(2.) BEFORE considering the grounds urged by the appellant in the present appeal,relevant facts culminating in the passing of the impugned judgment may be noted. (i) Appellant/plaintiffs claims to have functioned as a commission agent of respondent No. 1, Indian Tanning Industries of which respondent No. 2 is a registered partner. As per the appellant, respondent No. 2 appointed him as an authorized commission agent of respondent No. 1 for their finished leather products for agra and Delhi territory w. e. f. 3. 3. 1990. vide letter of the same date. Appellant was to be paid commission @ 2% of the total value of business/orders secured from Delhi and Agra region. (ii) Appellant claims that during the period March 1991 to november 1993, appellant had collected various orders from Tej group of Agra (U. P.) which were transmitted to the respondents for supplies to 1) Tej Enterprises, Agra 2) Tej Sales, Agra 3) Tej shoe Factory, Agra and 4) Tej International Pvt. Ltd. , Agra. Further as per the account books maintained by Tej Group, Agra, respondent had made supplies to all the concerns of Tej Group, agra to the tune of Rs. 2,55,23,944/- during the aforesaid period.
(3.) IT is the appellants case that as per the terms of letter of appointment, the commission of the appellant was fixed at 2% of total turnover which comes to Rs. 5,01,478. 88/: (Rs. Five Lac One Thousand Four Hundred seventy Eight and eighty eight Paise only ). Appellant averred in the plaint that that he had withdrawn a small amount of Rs. 5000/- on 19. 8. 1993, from respondent's account with Tej Shoe Factory but still a balance of rs. 4,96,478/- (Rs. Four Lac Ninety Six Thousand Four Hundred Seventy Eight only) was payable by the respondents to the appellant. Appellant further claimed that he had suffered a massive heart attack on 3. 8. 1993. He thus remained confined to bed for considerable period. As a result, he remained out of touch with his business as well as respondent. Appellant further averred that after partly recovering from illness, he resumed business and requested the respondent for the payment of his commission dues being in dire need of funds but to no avail. Appellant kept telephoning the respondent no. 2 every now and then requesting for immediate payment. Appellant was constrained to issue a legal notice on 9. 7. 1996, but even that had no effect on the respondent. Hence the suit culminating in the impugned judgment being passed.;

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