B.C.Ray, J. - (1.) This Rule arises out of an application under Section 115 of the Code of Civil Procedure and is directed against Order No. 35 dated December 17, 1975 passed in Title Suit No. 93 of 1973 by the Subordinate Judge 3rd Court, Alipore, rejecting the defendant/ petitioner's application for amendment of the written statement.
(2.) The plaintiff opposite party which is a statutory body set up under the West Bengal Act 19 of 1959 instituted Title Suit No. 93 of 1973 in the Third Court of Subordinate Judge at Alipore, stating inter alia, that the defendant Bivas Private Limited which had long experience of providing the markets for the filter papers, with a view to promoting the qualities of the goods, was appointed as the selling Agent for the sale of goods to be produced at Kalyani Unit and Das-ghara unit. In terms of the said agency the defendant used to take delivery of goods and sell them in the market and used to make payment to the plaintiff from time to time. The price of the goods was at first fixed at Rs. 12-0- per Kg. But subsequently, as the cost of production increased the plaintiff too increased the price from Rs. 12/- to Rs. 20/- per Kg. and the same was duly communicated to the defendant by letter dated 16th of January, 1970. To this letter the defendant did not send any reply. Thereafter the plaintiff sent a statement of account to the defendant and requested to pay a sum of Rs. 47,361.90 which remained due from the defendant. It was alleged that on 15th of November, 1971 the defendant repudiated the agency by their letter. The plaintiff thereafter issued a notice through their lawyer demanding payment of the aforesaid sum due to them, but no reply was received from the defendant and hence the suit was filed for a decree for recovery of the sum of Rs. 47,361.80 and for other ancillary reliefs .
(3.) The defendant on 25th February. 1974 filed a written statement. In paragraph 10 (c) of the said written statement it has been stated as follows: "This illegal arbitrary and wrongful increase in price was made by the plaintiffs without prior reference to the defendant and even before............ the sole selling Agent." In paragraph 10 (d) of the said written statement it has been stated that it was settled that in consideration of the technical know-how, supplied by the defendants and the investments made by them the defendants would be the sole selling Agent for five years. In paragraph 13 of the written statement it has been stated that the defendant did not repudiate the agreement by their letter dated 15-11-71 or on any date. In paragraph 15 of the written statement it has been stated that as the repudiation of the agency by the plaintiffs is unilateral, illegal and mala fide the plaintiffs are not entitled to get any relief.;