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Code of Civil Procedure, 1908—Order 37, Rule 3(5):
Suit filed by the Plaintiff u/o 37 for recovery of
commission earned for the work done by Plaintiff,
along with interest—Application filed by the Defendant
u/O 37 R 3(5) seeking unconditional leave to defend.
Plaintiff entered into an agreement with the Defendants
for procuring orders for various products—As per the
agreement Plaintiff was earning variable commissions
on the orders secured—Plaintiff claims that due to
Plaintiff’s diligence, Defendants agreed to an enhanced
flat commission rate of 10% verbally—However,
thereafter commission was curtailed—Hence, the
present suit. Defendants contend that for enforcement
of verbal agreement, no suit under Order 37 CPC will
lie—Plaintiff has filed no documents to verify the claim
of the Plaintiff—Since case of plaintiff is not based on
determined liability, Defendants/applicants are entitled
to leave to defend, hence the instant application.
Held: Agreement of enhancement of commission verbal,
thus provisions of Order 37 Rule 1(2)(b) not applicable
to the present case—In view of liability not being
acknowledged, nor claim being in pursuance of a
written agreement, Plaintiff has not made out a case
for trial u/O 37, CPC—Defendants granted leave to
In my view, a suit for recovery of such an amount does
not qualify as a suit under Order 37 of the CPC. A suit, from
the averments in the plaint has to fall under Order 37. The
averments in the plaint in the present case do not show as
to on what written contract the amounts sought to be
recovered as a debt or liquidated demand in money is
sought to be recovered. No single document has been referred to in the plaint, wherein the suit amount is contained
as a debt due from the defendant to the plaintiff.
9. Order 37 of the CPC was intended to be an exception to
the ordinary adversorial adjudicatory process adopted in
this country and in which process certain delays owing to
the requirement of giving opportunity of being heard and
lead evidence were implicit. It was thought that where the
suit was only for recovery of money on the basis of a
document, the genuineness whereof could not be doubted
or where owing to the existence of a written document
disclosing the amount claimed in the suit, it was expedient to
shift the onus to the defendant, it was enacted that the
defendant would not be entitled to contest the suit till
satisfies the court that he had a defence. However, I find
myself unable to apply the said principles to the instant suit.
I am unable to deduce from any document or documents the
amount due. Merely because the claim is based on documents
would not make the suit fall under Order 37 of the CPC.
Claims in a large number of suits are based on documents
but such suits do not fall under Order 37. Where a large
number of documents have to be collated, interpreted and
effect thereof to be adjudicated in juxta position of other
documents, merely because the suit is based on documents
would not make it fall under Order 37 of the CPC. That is
the position in the present case.”
- Bank of India and another vs. Madura Coats Ltd., 157 (2009) DLT 240 (DB).
- Juki Singapore PTE Ltd. vs. Jay Cee Enterprises Pvt. Ltd. and another, 157 (2009) DLT 580.
- Mechalec Engineers and Mfr. vs. Basic Equipment Corporation, 1977 Rajdhani Law Reporter (SC) 184.