- (1.) The Court: The defendant no.2 has opened a letter of credit in favour of the defendant no.1. The proceeds of the letter of credit receivable from the bank of the defendant no.2 was restrained on the earlier occasion since the plaintiff contended that the defendant no.1 has no asset within the jurisdiction of this Court and the debt is admitted.
(2.) The defendant no.1 pursuant to the notice has appeared and submitted that in terms of Clause 2 of the exclusive agency agreement the defendant no.1 had agreed to pay commission of 0.75% of ONGC Contract value upon receipt of the Letter of Credit from ONGC Bank to M/s. Sagar International Limited and to pay 0.75% more upon receipt of payment from ONGC Bank.
(3.) The agreement records that the plaintiff would try to its best to assist the defendant no.1 to get the tender floated by Oil and Natural Gas Corporation Limited, with its knowledge and expertise. It is not in dispute that the respondent no.1 was found to be a successful tenderer. However, dispute arose with regard to the payment of commission. Clause 2 of the agreement required the defendant no.1 to pay commission of 0.5% of the contract value upon receipt of letter of credit from the banker of ONGC to the plaintiff and to pay a further commission of 0.50% upon receipt of payment from the banker of ONGC. It is an admitted position that the respondent no.1 has made some payments to the plaintiff upon receipt of the letter of credit from the banker of ONGC. The defendant no.1 does not seem to dispute its liability to pay commission of 0.75% of the contract value upon receipt of the letter of credit, but has argued that the plaintiff is entitled to claim only US$ 11349.50. However, it is submitted that so far as the balance payment is concerned, it is only upon the receipt of payment from the ONGC Bank. The said payment could not be made because of the order of injunction. Moreover, the defendant no.1 has a claim against the plaintiff towards demurrage. ;