TMI Blog1953 (9) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... tated in the affidavit of Rasiklal, the managing partner of the petitioner firm. The case has therefore to be decided on the facts stated in the affidavit. It is stated that the petitioner is a del credere agent of Messrs. Newton Chikhli Collieries, Limited, Parasia, (hereinafter referred to as the company). The petitioner functions to procure customers for the company and guarantees payment of the price of the coal sold to these customers. The consignments are addressed by the company directly to the customers. The railway receipts are also sent directly to them. The petitioner has no concern with the customers after they are introduced as solvent buyers except as guarantor for the payment of the price. It is further stated that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the supplier on the one hand, and the buyers on the other, and received remuneration for its service as intermediary. The learned Commissioner characterised it as a broker and held that a broker is not a dealer. The facts as stated by the Commissioner were: "He (the petitioner) is a del credere agent of Messrs. Newton Chikhli Collieries Limited, Parasia. His function is to find out customers for the collieries and guarantees payment for the coal sold to the customers who contract to buy from their principals. Coal is allotted under the Collieries Act by the Coal Commissioner, to the customers, and the applicant canvasses these consumers to buy coal from their principals. The property in goods never vests in the applicant." These are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rase equivalent to the English word "guaranty" or "warranty". A factor is a mercantile agent who in the ordinary course of business sells or disposes of goods of which he is entrusted with the possession or control by his principal. When he is in possession of the goods, with the consent of the owner, any sale, pledge or other disposition of the goods made by him when acting in the ordinary course of business of a mercantile agent is valid as if he were expressly authorized by the owner to make the same. No doubt, this power is subject to certain limita- tions provided by the Factors Act, 1889 (52 and 53, Vic. Ch. 45). As stated in Ex parte White(1): "A del credere agent is distinguished from other agent who is to sell according to the inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of del credere agent was brought to his notice during the course of arguments. However, on the facts admitted by the parties the petitioner is no more than a guarantee broker. A broker is an agent whose ordinary course of business is to negotiate and make contracts for his principal for sale and purchase of goods and other property of which he is not entrusted with the possession or control. He has not therefore the authority to deal with the goods which a factor enjoys. Nor has he authority to sue in his own name on contracts made by him. The business of the petitioner was to bring the buyer and seller together and its liability was to pay the price with a right to reimburse itself from the buyer. It was never placed in possession of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is styled as an order, was made under Section 19 of the Act. As the petitioner was a registered dealer, it had to apply for cancellation of the registra- tion certificate under rule 14A read with Section 8A(5) of the Act. That application had to be in Form XXVIII and addressed to the Sales Tax Officer. The Sales Tax Officer is not empowered to cancel the certificate. It has to be cancelled by the Commissioner. He had there- fore to make a report on enquiry into the facts. He made such a report and the Commissioner was bound to pass an order cancelling or refusing to cancel the certificate. The decision dated 9th May, 1952, is certainly a judicial order under Section 8A (5) of the Act. The learned counsel for the respondents relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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