The court held that the defendants had raised triable issues and that the plaintiff's claim was not maintainable under Order 37 CPC, and therefore granted the defendants unconditional leave to defend the suit.

Vipin Sanghi, J.

1. The plaintiff has filed the present suit under the summary procedure contained in Order 37 CPC. The case of the plaintiff is that he had joined defendant No. 1-M/s Assotech Realty Private Limited, in the position of Marketing Advisor vide letter dated 23.09.2005. The monthly remuneration agreed as payable to the plaintiff was Rs.1,25,000/- per month (all inclusive), plus service tax plus 0.1% of all sales less applicable TDS. The plaintiff claims that the Directors of defendant No. 1, including defendant No.2, were immensely satisfied with his performance and requested the plaintiff to take over the position of Private Equity and Joint Ventures Advisor in addition to his existing position of Marketing Advisor. The plaintiff claims that this position was offered on a monthly remuneration of Rs. 3 lacs (all inclusive) plus service tax as applicable plus incentives.

2. The plaintiff claims that a retainership agreement was signed between the plaintiff and defendant No.1 on 26.07.2006. As per the terms contained therein, the plaintiff was committed a retainership fees for a fixed period of one year. The plaintiff claims that the salient features of the Agreement were as follows:

(i) The plaintiff was committed 1% of all private equity deals which were not introduced through him but conducted by defendant No.1 or through a special purposes vehicle (‘SPV’) of defendant No.1;

(ii) The plaintiff was committed a fixed fees of Rs. 5 lakh on Joint-Ventures entered between defendant No. 1 and a third party OR any land acquired by defendant No.1 other than land purchased by defendant No.1 or its SPV, through auctions;

(iii) In case the plaintiff through his ‘sole efforts’ brought any deal into defendant No. 1, in that case a partnership or participation was offered to him in the form of shareholding, in the SPV so that he was assured a minimum profit of Rs.5 crore. The plaintiff’s share in the profit was to increase in accordance to the profits of the SPV and/or defendant no.1;

(iv) Lastly, in case option (iii) herein above was exercised, the plaintiff was to be immediately made Marketing Head Or Project Head, for the new project for a further period of two (2) years.

3. The plaintiff claims that the said conditions were not entirely acceptable to him, inasmuch, as the profits committed were low and insufficient compared to the prevailing market practice. The plaintiff claims that defendant No.2 committed to the plaintiff that he shall receive a sum in excess of Rs.1 crore towards incentives/benefits in the first two years itself of his taking over as Marketing or Project Head, in addition to the share in profit which was to be in excess of Rs. 5 crore. The plaintiff has made several other averments which may not be entirely relevant for the present purpose.

4. The plaintiff claims that through his sole efforts, the plaintiff procured a new project at Village Caterpuri, Gurgaon, for defendant No.1. He claims that he was instrumental in bringing about a collaboration agreement between the landowners and defendant No.1, and defendant No.1 would have earned profits in excess of Rs. 150 crores upon completion of the project.

5. The plaintiff details in paras 9 and 10 the transactions which took place with regard to the collaboration agreement stated to have been entered into on 23.09.2006 between the landowners and a wholly owned and controlled company of defendant No. 1, namely, M/s Srjan Technologies Private Limited. The plaintiff claims that on account of his work, on 01.10.2006, the plaintiff was transferred to the post of Project Head of the new project at Gurgaon, which was to be effective from 01.04.2007. He claims that his monthly retainership was unilaterally reduced from Rs. 3 lacs to Rs. 2.50 lacs. The plaintiff goes on to claim that several differences arose between him, defendant No. 1 and defendant No. 2 and that he was not permitted to freely work in the interest of the new project at Gurgaon. He f