1985 PLP 916 (MLD)

This is an application under Order. XXXVII, rule 3, C.P.C. for grant of leave to appear and defend the suit. The plaintiff has filed the Suit under Order XXXVII for recovery of Rs.2,01,

198. According to the plaintiff under oral agreement between the plaintiff and the defendants, the plaintiff agreed to handle such foreign vessels as called upon by the defendants. It was agreed that the defendants will pay a sum of Rs.1,92,425 toward out of pocket expenses/K.P.T. charges and Agency Fees. On the instructions of the defendant, the plaintiff handled vessels namely m. v. ANASIASIA; m. v. PAPA GEORGIS and m.v. ANNOOR. That in part payment under the agreement, the defendants issued a cheque of Rs.1,92,425 on 16-2-1980 which was dis-honoured. In the meantime the plaintiff had handled vessels and the sum of Rs.2,01,198 had accrued to the plaintiff, therefore, issued a letter to the defendants calling upon them to pay the amount due. The defendants sent a letter to the plaintiff admitting that they had attended the aforesaid vessels and they should recover Rs.1,78,932 from their principal A1-Shamsi Trading Company. In other words, they had approved the bills of the plaintiff for payment by their principal. The plaintiff has claimed Rs.78,932 plus Rs.22,266 interest @ Rs.14$ from 10-9-1980 to 31-7-1981. The defendants have filed this application, in which they have not denied the execution of the cheque. It has been sated that the defendants have no privity of contract with the plaintiff. They had only introduced the Foreign Principal namely, Al-Shamsi Trading Company Dubai from whom the plaintiff was to take work. They have further stated that when the plaintiff insisted for payment, the defendants asked the Foreign Principal who promised and assured to send the money. On these assurances the defendants issued their I cheque in favour of the plaintiff. It has also been denied that the defendants have knowledge about the work done by the plaintiff. This contention does not seem to be correct as in their letter which is annexure "D" to the plaint they have recommended the payment specifically and separately mentioned against each item, therefore, the question that it was not in their knowledge will not arise. It seems that the defendants have been representing a Foreign Principal for handling their vessel and had engaged the plaintiff to handle such vessels with Customs and K.P.T. According to the averments made in the application under Order XXXVII, rule 3, the defendants had issued a cheque under the instructions of the Foreign Principal. If the defendants had no relationship with the Foreign Principal, or that they had no privity or arrangement or undertaking with the plaintiff, why such a cheque should have been issued which directly relates to the services rendered by the plaintiff. In the circumstances of the case, I will grant conditional leave to defendants to appear and defend the suit on furnishing security in the sum of Rs.1,92,425 within a period of one month. S. A. Leave granted.