JUDGMENT

1. The present petition under Article 227 of the Constitution of India has been filed by the petitioner (hereinafter referred to as ‘plaintiff’) challenging the order dated 12th February, 2021 passed by the District Judge (Commercial Court), East District, Karkardooma Courts, Delhi (hereinafter referred to as ‘Commercial Court’) in CS(COMM) No.319/2019, whereby, unconditional leave to defend has been granted to the respondent (hereinafter referred to as ‘defendant’) in a summary suit under Order XXXVII of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) filed by the plaintiff.

2. A revision petition was filed by the plaintiff against the impugned order. However, the said revision petition was dismissed by this Court vide order dated 16th April, 2021 while giving liberty to the plaintiff to avail appropriate remedies in law. Accordingly, the present petition has been filed. Notice in the petition was issued on 14th July, 2021. Pursuant to the notice issued by this Court, reply has been filed on behalf of the defendant.

3. The suit from which the present petition arises was filed in August, 2019 under Order XXXVII of the CPC claiming principal sum of Rs.82,86,379 along with interest @ 14% per annum, inter alia pleading that: (i) The plaintiff is an exclusive distributor of ‘Haemonetics’ for the territory of India for supply of medical items.

(ii) The defendant is the proprietor of firm M/s Mega Care International and engaged in the business of supplying medical equipments.

(iii) In 2009, the defendant approached the plaintiff for supply of ‘Haemonetics’. A Memorandum of Understanding (hereinafter referred to as ‘MoU’) was signed between the parties in 2009-2010 in terms of which, the defendant was granted distributorship for ‘Haemonetics’ for a period of

27 months.

(iv) The terms of the said MoU expired in 2012, but the parties continued with their business dealings with each other.

(v) The defendant would raise purchase orders on the plaintiff and the plaintiff would supply the said items along with the delivery note to be countersigned by the defendant and an invoice giving details of the items supplied.

(vi) Disputes arose between the parties in October, 2016 as the defendant started defaulting in payments due to the plaintiff.

(vii) The plaintiff claims that the defendant in various emails has acknowledged the money due and payable to the plaintiff.

4. Summons in the said suit were served on the defendant who entered appearance and filed the application for leave to defend. In the said leave to defend application, it has been pleaded that (i) in respect of supplies made by the defendant, the defendant was entitled to payment of commission/minimum guarantee margin; (ii) the plaintiff failed to pay the minimum guarantee amount/commission to the defendant and a sum of Rs.1,08,14,241/- is due to the defendant from the plaintiff in this regard; (iii) the factum of payment of commission has been acknowledged by the plaintiff in various emails exchanged between the parties; and (iv) the suit filed by the plaintiff does not fall within the ambit of a summary suit under Order XXXVII of the CPC as the same is not based on any written contract for a liquidated amount.

5. The leave to defend application was allowed by the Commercial Court vide the impugned order and the defendant was granted unconditional leave to defend. The Commercial Court, in the impugned order has held/observed as under:

(i) The emails exchanged between the parties demonstrate that even after the expiry of the initial MoU dated 2nd May, 2007, the parties continued their business relations under an oral agreement.

(ii) The reference to emails dated 26th July, 2017 and 31st March, 2012 show that there was an arrangement between the parties for payment of commission to the defendant by the plaintiff in respect of sales directly made by the plaintiff to end customers.

(iii) The rate at which the said commission was payable and time of payment of the sai