TMI Blog1982 (7) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... 69,476-89. According to the plaintiff a sum of ₹ 51,486-89 was doe and that was the principal amount while ₹ 17,990/was interest calculated at the rate of ₹ 12%. Defendants Nos. 2 to 5 were joined, as according to the plaintiff they were the partners of defendant No. 1. According to the plaint filed, reference was made to the fact that defendant No. 1 was appointed as Distri-butors and in para 4 of the plaint if was stated that on various occasions by putting orders, defendant No. 1 had purchased the goods worth ₹ 51,486-89 and that amount was due together with interest. It was further stated in the plaint that the defendants agent had written a letter dated 17-3-1969 and by that letter payment was made and, therefore, the suit was within limitation. 4. Defendants Nos. 1 to 4 filed written statement at Ext. 20. That written statement was filed on 6-4-1972. Defendant No. 5 filed written statement al Exhibit 22. That written statement was also filed on 6-4-1972. Defendant No. 5 bad taken up the contention that he was not the partner of defendant No. 1. Defendants Nos. 1 to 4 denied their liability and also stated that the suit was time-barred. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ankheda, Chhota Udepur and Jambu Gam, talukas of Baroda District for the sale of Varsha Diesel Engines, Pumps and Pumpsets. In para 2 it is stated that the retail price list together with a particular circular in which the prices for the distributors only are mentioned were enclosed. In para 3 it is stated that a set of the circulars which were discussed were personally handed over to them. Thereafter it is mentioned that the defendant will take care and see that the maximum number of Varsha Diesel Engines are sold in the area allotted to them. Thereafter follows the agreement which is described as Distributorship . The appointment terms are mentioned. Term No. 2 is in regard to Insurance and risk in transit. Term No. 3 is regarding the terms of payment. The other terms are usual terms which say that the orders placed shall be treated as firm orders and shall not be subject to any cancellation. The other important term is that the defendant will not take interest in selling other similar engines to those of the plaintiff. It is also mentioned that all inquiries from the territory will be normally referred to the de-fendant. However, the plaintiff reserved the sate in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties directly and the next question would be whether any of the third, parties could file the suit against the plaintiff. By merely giving a guarantee for a particular period in regard to carrying out the repairs one can never say that the title to the goods ever passed. In all Makes which, are sold say motor-cars, Refrigerators, Fans, Motor-bicycles there is always a guarantee period during which the manufacturer binds him-self to carry out the repairs but all the dis-tributors or all persons who purchase for re-sale of such goods can never be considered or termed as agents as contemplated by Section 182 of the Indian Contract Act The reliance was tried to be put on certain ruliings. 6. The first case referred to us was a case of Abdulla Ahmed v. Animendra Kissen Mitter, reported in AIR 1950 SC 1-5. The observations are as under:- Contracts with commission agents do not follow a single pattern and the primary necessity in each instance is to ascertain with precision what are the express terms of the particular contract under discussion. It is further observed as under:- Extrinsic evidence to determine the effect of an instrument is permissible where there remains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an agent and becomes a Principal. In this particular case the defendant was always treated by agreement as a purchaser. 9. It is also necessary to refer to a case of Gordon Woodroffe and Co. (Madras) Ltd. v. Shaik M. A. Majid and Co., reported in AIR 1967 SC 181. Para 3 of the judgment is important for the purpose of deciding this case. In that paragraph it is observed as under:- The first question presented for determination in this case is whether the defendants were acting as del credere agents of the plaintiff or whether the defendants were outright purchasers of the goods supplied to them by the plaintiff. In the approach to this question it is necessary to notice the distinction between a contract of sale and a contract of agency. The essence of sale is the transfer of the title to the goods for price paid or to be paid. The transferee in such case becomes liable to the transferor of the goods as a debtor for the price to be paid and not as agent for the proceeds of the sale. On the other hand, the essence of agency to sell is the delivery of the goods to a person who is to sell them, not as his own property but as the property of the Principal who continues to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. It is not the case of the appellant that Civil Court refused to admit the evidence and, therefore, they had come here with a request to lead additional evidence. It is also not the case of the appellant that the documents which are being produced were not in their possession at the time when the suit was filed. What has been stated in this petition is that the petitioner did not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff wrote a letter to the Bank. 11. Another letter, dated 9-10-1967 which is written by the plaintiff to the bank gives a list of the distributors. The list is of five concerns and one of them is defendant No. 1 and they all five are described as Distributors. The letter written by Gujarat Land Development Bank Ltd. to the plaintiff dated 31-1-1966 is produced by which the Bank sent the prescribed rules to the plaintiff. Rule 11 tends as under :- The Bank shall deal only with those agents and dealers appointed and authorised by the manufacturers for sales in the State of Gujarat. This rule will not establish the status of the defendant as to whether the defendant was an agent or a dealer. The copies of the sale register and the cash book which the plaintiff could have produced at the trial, the plaintiff desired to produce here. That cannot be permitted. The letter dated 1-10-1967 is regarding the repairs of 4 engines which will prove nothing. We may only say that having gone through the copies of the documents which the appellant desires to produce one cannot come to a conclusion that defendant No. 1 was an agent of the plaintiff and we see absolutely no reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no question of making payment on behalf of the defendants when the defendants themselves were present. It is not shown to us how Vechatbhai was the agent of any of the defendants. Now, therefore, so far as Exhibit 111 is concerned it cannot save any limitation. There is absolutely no evidence to come to the conclusion that Vechatbhai made any payment on behalf of the defendants or that Vechatbhai was an agent of any of the defendants. 13. The learned advocate Miss Shah thereafter based her argument on the docu-ment marks 33/1 and 33/2. These documents were not exhibited in Civil Court and no effort was made to prove those documents. However, it was submitted that this could be treated as additional evidence. Mark 33/1 is dated 2-11-1971 alleged to have been written by defendant No. 5. It is stated that the firm of the defendant lost their account books on 13-10-1971 and, therefore, extracts from years 1968 to 1970 may be given to him showing the purchases made. This letter does not speak abput the payments. What defendant No. 5, therefore, wanted was to know as to what was pur-chased during three years. Thereafter our attention was drawn to the document mark 33/2. On the last p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that be was not a partner he cannot be termed to be a liar and even If we come to a conclusion that he was not giving correct version that would not mean that the plaintiff established its claim or that the suit was within limitation. The learned Civil Judge (S. D.) for good reasons came to the conclusion that the plaintiff did not establish the claim. The reasons given are that the plaintiff only produced bills and the ledger. The plaintiff did not produce the cash books and sale registers. ' The Court drew adverse inference as these documents were referred to by the witnesses of the plaintiff in deposition. It was clear to the Court that the sale registers were maintained so also the cash book's. In absence of sale registers and the cash books, the suit cannot be based on ledger and the bills, particularly when the defendant comes out with a case that for direct sales made by the plaintiff in the territories for which the distributorship was given to the defendant, the defendant was entitled to commission and the case of the defendant was that as they were demanding the amount of commission from the plaintiff this suit was filed. It may be stated that the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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