Dr. M. K. Sharma, J. ( 1 ) THE present suit under Order 37 of the Code of Civil Procedure was instituted by the plaintiff against the defendants for recovery of Rs. 8,09,476. 39 alongwith interest. Pursuant to a tender enquiry floated by defendant No. 1 M/s. Klockner and Co. of West Germany acting through the plaintiff submitted its offer for supply of 6000 MT of LPG Sheets. The said offer was accepted by defendant No. 1 and a letter of intent dated 5/9/1989 was placed with M/s. Klockner and Co. for supp of a total quantity of 6000 MT of LPG Sheets at the rate mentioned in the said letter of intent. A purchase order dated 16/10/1989 was executed between M/s. Klockner and Co. , West Germany and the defendant No. 1 for supply of the aforesaid LPG sheets. In terms of the said letter of intent and the purchase order the total value of 6000 MT LPG Sheets was DM 5,880,000. The aforesaid price was inclusive of agency commission @ 1% of FOB value less freight DM 107 per MT payable in equivalent Indian Rupees to the plaintiff. As stated the letter of intent and the purchase order gave the break up of the total price of DM 5,880,000 which was inclusive of the agency commission. In terms of the aforesaid letter of intent and purchase order the defendant No. 2 was to open an irrevocable letter of credit covering the shipment of 6000 MT of LPG sheets indicating therein also the agency commission. The defendant No. 2 however, opened the letter of credit but without mentioning therein the agency commission payable to the plaintiff. Pursuant to the aforesaid letter of intent and purchase order M/s. Klockner and Co. of West Germany effected shipment of 6794. 87 MT of LPG sheets and successfully completed the contract. The defendants No. 1 and 3 took delivery of the goods and payment of DM 65,99,883. 31 was released by defendant No. 2 to M/s. Klockner and Co. under the letter of credit. On successful execution of the contract the plaintiff became entitled to payment of the agency commission which however, was not paid by the defendants and accordingly, the present suit for recovery of the said amount has been filed. 31 was released by defendant No. 2 to M/s. Klockner and Co. under the letter of credit. On successful execution of the contract the plaintiff became entitled to payment of the agency commission which however, was not paid by the defendants and accordingly, the present suit for recovery of the said amount has been filed. ( 2 ) THE defendants entered appearance in the suit and thereafter have filed applications seeking for leave to defend in the suit. The said applications filed by the defendants are registered as I. A. s 2871, 2872 and 2873/1994. ( 3 ) REPLIES to the aforesaid applications have also been filed and the said applications were listed before me for arguments. I heard the learned counsel appearing for the parties on the said applications, and I propose to dispose of the said applications by this common order. ( 4 ) A copy of the letter of intent dated 5/9/1989 is placed on record. The said letter specifically states that the offer of M/s. Klockner and Co. of West Germany submitted by the Indian agent namely the plaintiff was accepted. Reference may also be made to the letter of authority for establishment of letters of credit issued by defendant No. 1 to the defendant No. 3 dated 28/9/1989. The defendant No. 1, who admittedly acted as a canalizing agent for defendant No. 3, issued the authorisation letter calling upon the defendant No. 3 to submit the letter of authority to the bank for establishment of letter of credit and while doing so to ensure to authorise the bank to release Indian agent s commission in Indian Rupees by debit to its account on the basis of the payment authorisation as and when issued to it. The defendant No. 3 opened the letter of credit with defendant No. 2 with the authorisation of defendant No. 2. However, while doing so payment of agency commission in Indian Rupees to Indian agent was not included in the letter of credit inspite of specific instruction of the defendant No. 1 to do so. Supply was effected, delivery of the said supply was also taken and payment for the goods also stands made by defendant No. 3 to the plaintiff. However, payment of agency commission was not made by defendant No. 3. Supply was effected, delivery of the said supply was also taken and payment for the goods also stands made by defendant No. 3 to the plaintiff. However, payment of agency commission was not made by defendant No. 3. There is no denial of the fact that the defendant No. 1 at the instance of defendant No. 3 floated the tender enquiry for supply of LPT sheets. The tenders were called by defendant No. 1 as per their procedure and the orders were finalised. The defendant No. 1 acted as the canalizing agent for defendant No. 3, accepted the tender of Klockner and Co. , West Germany for supply of 6000 MT of LPG sheets. Prices were fixed under the purchase order issued by defendant No. 1 on behalf of defendant No. 3 which also included the agency commission payable to the plaintiff. It also could not be denied that the defendant No. 1 s terms involved payment of agency commission in India Rupees to Indian agents. Supplies were effected in terms of the aforesaid purchase order issued and the goods were delivered and received by the defendant No. 3. ( 5 ) THE defendant No. 3 however, has taken up a plea that it is not required to pay the agency commission because the condition of the defendant No. 1 relating to payment of agency commission was not accepted by defendant No. 3. According to the defendant No. 3 the aforesaid condition was not accepted by defendant No. 3 in view of the guidelines of the Ministry of Finance providing that the agency commission is to be avoided as far as possible. No documentary evidence has been placed on record indicating any express communication of the defendant No. 3 refusing or denying liability to pay agency commission in Indian Rupees to Indian agents prior to making of the delivery of the goods. In absence of any written communication from the defendant No. 3 communicating its decision not to pay agency commission, the plea sought to be raised now by the defendant No. 3 is without any merit. Reliance is sought to be placed on the conduct of defendant No. 3 in opening the letter of credit under the authorisation of defendant No. 1 without including therein payment of the agency commission in Indian Rupees to Indian agent inspite of specific direction and condition imposed by the defendant No. 1. Reliance is sought to be placed on the conduct of defendant No. 3 in opening the letter of credit under the authorisation of defendant No. 1 without including therein payment of the agency commission in Indian Rupees to Indian agent inspite of specific direction and condition imposed by the defendant No. 1. ( 6 ) LEARNED counsel appearing for the defendant No. 3 submitted before me that the aforesaid action in not opening the letter of credit including therein the agency commission would prove and establish that the condition of MMTC regarding payment of agency commission was not accepted by defendant No. 3. Counsel appearing for defendant No. 3 further submitted that the earlier contract and the purchase order was frustrated when agency commission was not included in the letter of credit opened by defendant No. 3, and a new contract was substituted between defendant No. 3 and M/s. Klockner and Co. for the supply of LPG Sheets in pursuance of which supplies were made, goods received and payments made and therefore, there is no further obligation to pay any amount by the defendant No. 3 towards agency commission to Indian agent. Counsel relied upon the provisions of section 62 of the Contract Act in support of his contention that there was novation of earlier contract which was substituted by a fresh contract. It was also submitted that defendant No. 3 cannot be sued for recovery of the amount as there was no privity of contract between defendant No. 3 and the plaintiff. The submissions of the learned counsel appearing for defendant No. 3, therefore, are to be scrutinised in the light of the records of the case. ( 7 ) THE records placed before me indicate that supplies were made by M/s. Klockner and Co. pursuant to the letter of Intent and purchase order dated 5/9/1989. The said letter of intent and purchase order specifically envisage payment of agency commission to the Indian agent namely the plaintiff. Even authorisation letter for opening the letter of credit issued by the defendant No. 1 indicates liability to pay agency commission to the plaintiff. At no point of time the defendant No. 3 wrote any letter either to defendant No. 1 or to the plaintiff expressing its decision of non-acceptance of the condition for payment of agency commission. Even authorisation letter for opening the letter of credit issued by the defendant No. 1 indicates liability to pay agency commission to the plaintiff. At no point of time the defendant No. 3 wrote any letter either to defendant No. 1 or to the plaintiff expressing its decision of non-acceptance of the condition for payment of agency commission. Letter of authority dated 28/9/1989 contains a clause being clause No. 18 which specifically provided that the defendant No. 3 would be bound by the provisions of clause 16 of the letter of authority the moment it establishes the Letter of Credit. The letter of authority also included the liability to pay agency commission to the Indian agent. A copy of the purchase order which is placed on record also indicates the liability of defendant No. 3 to pay the agency commission in equivalent Indian Rupees to the Indian agent. The letter dated 10/1/1991 written by defendant No. 1 to defendant No. 3 specifically states of the liability of defendant No. 3 to pay the agency commission to the plaintiff. Even M/s. Klockner and Co. wrote a letter to the defendant No. 1 on 26/7/1991 drawing the attention of defendant No. 1 towards non-payment of the agency commission to the Indian agent. It was specifically stated therein that the transaction is incomplete without the payment of the said agency commission to the Indian agent. The aforesaid documentary evidence placed on record clearly prove and establish the liability of defendant No. 3 to make payment of the agency commission to the plaintiff. The defence taken by the defendant No. 3 denying its liability to pay such agency commission appears to be vexatious and moon shine. It is an admitted position that the purchase order dated 16/10/1989 was issued by the defendant No. 1 on account of the defendant No. 3 and the same was issued in favour of M/s. Klockner and Co. of West Germany, which also included the liability of payment of agency commission. The evidence on record also indicates that the supplies were made, the goods were received and payments made pursuant to the terms and conditions of the aforesaid purchase order without however, making any payment towards agency commission which was otherwise payable to the plaintiff. of West Germany, which also included the liability of payment of agency commission. The evidence on record also indicates that the supplies were made, the goods were received and payments made pursuant to the terms and conditions of the aforesaid purchase order without however, making any payment towards agency commission which was otherwise payable to the plaintiff. The plea taken by defendant No. 3 that there was novation of earlier contract is belied from the documents placed on record particularly the letter of M/s. Klockner and Co. dated 26/7/1991 to which reference is made above. There is no documentary evidence on record to prove that there was substitution of the agreement pursuant to which supplies were made and goods received. The consignor had never agreed to any term under which the plaintiff was not required to be paid its agency commission. Thus the provisions of section 62 of the Contract Act are not applicable to the facts and circumstances of the present case. Thus the defence sought to be raised by the defendant No. 3 in the present suit appears to me to be not reasonable and is moonshine and illusory. In my considered opinion no triable issue has been raised in the application filed by defendant No. 3. The application filed by defendant No. 3 and registered as I. A. No. 2873/1994 stands dismissed. ( 8 ) THE defendant No. 1 admittedly acted as a canalizing agent for defendant No. 3 and the defendant No. 2 was the bank in which the letter of credit was established. On consideration of the pleadings set up by said defendants 1 and 2 I find that a triable issue has been raised by the said defendants to the effect that they are not liable. The applications of defendants No. 1 and 2 stand allowed. They are granted leave to defend the present suit. Written statement shall be filed by them within four weeks. Re-notify on 9th August, 1999. ( 9 ) IN the result, a decree for recovery of a sum of Rs. 8,09,476. 39 is passed in favour of the plaintiff and against the defendant No. 3 with costs. In addition, the plaintiff shall also be entitled to interest @ 15% per annum from the date of institution of the present suit till realisation.