S.L. Talati, J.
2. Varsha, Engineering Private Ltd. was a partnership concern in the year 1967-Messers. Vijay Traders was also a partner-ship concern. Both partnership concerns had their office at Baroda. They both entered into as agreement Exhibit 112 on 17th Sept., 1967. Varsha Engineering Co. wrote a letter to Vijay Traders and by that letter an agreement between the parties came into existence M/s. Vijay Traders, defendant No. 1 came to be appointed as Distri-butors of Varsha Diesel Engines for the territories of Nasvadi, Tilakwada, Sankheda, Chhota Udepur and Jambu Gam, talukas of Baroda District. We will refer to the terms and condition at and when it would be necessary.
3. It appears that on 2-2-1972 by notice Exhibit 109 the plaintiff claimed a sum of Rs. 51,486-89 plus interest at 12% and according to the plaintiff that was the amount due in the running account by the purchases made by the defendant. Thereafter on 3-3-1972 suit was filed to recover a sum of Rs. 69,476-89. According to the plaintiff a sum of Rs. 51,486-89 was doe and that was the principal amount while Rs. 17,990/- was interest calculated at the rate of Rs. 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 Rs. 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 the written statement filed no amount was paid by any partner by letter dated 17-3-1969 and according to the defendants the plaintiff had wrongly credited Rs. 2,500/- on 17-3-1969 as if paid by some person and by such an unauthorised entry the plaintiff, according to the defendants tried to bring the suit within limitation. Thereafter the plaintiff filed two applications for amending the plaint. The first application is Exhibit 35 That was presented on 20-9-1972. Another application was presented for amending the plaint and that is Exhibit 42. That application was presented on 27-11-1972. The learned Civil Judge by an order dated 26-2-1973 allowed plaint to be amended. We may state here that some of the amendments were earned out. However, by amendment application Ext, 42 though para 7A was to be added that amendment was not carried out. By the amendments the plaintiff tried to make out a case that the relationship between the parties was that of principal and agent. Ultimately the learned Civil Judge (S. D.) framed issues at Ext. 51. He came to the conclusion that the suit was barred by, law of limitation. He also came to the conclusion that defendant No. 1 did not act as commission agent and he was not liable to render accounts. He also came to the conclusion that it was not established by the plaintiff that the defendants had to pay a sum of Rs. 51,486-89 as principal and Rupees 17,990/- as interest. In view of these findings the learned Civil Judge dismissed the suit The plaintiff has filed the appeal.
5. The learned advocate Miss Shah for the appellant first submitted that the agreement between the parties brought about the relationship of principal and agent as contemplated by Section 182 of the Indian Contract Act. In order to examine this question it would be necessary to refer to the agreement which the parties entered into on 17-9-1967 and which is produced at Exhibit 112. In para 1 it is stated that there was personal discussion which was being confirmed by that letter which was written by the plaintiff firm to the defendant firm. Now that therefore, there was no scope for anything which was left orally. Whatever was discussed was being confirmed in writing by a letter. That was done after the discussion as mentioned in that letter. The letter says that the defendant was appointed as Distributor for the territories of Nasvadi, Tilakwada. Sankheda, 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 the tenders emitting from the Government, Semi-Government or the Equipment Manufacturers. That Distributorship agreement is followed by the Terms of Business which were attached. As one reads it, it is in regard to price, date of delivery, general lien, guarantee, disputes, and specification. The question before us is as to whether by reading the agreement Ext. 112 with all its accompaniments, can we come to a conclusion that there was relationship between the parties by which the plaintiff could be termed as Principal and defendant No. 1 could be termed as Agent as contemplated by Section 182 of the Indian Contract Act? Section 182 of the Indian Contract Act reads as under :--
'182. An 'agent' is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the 'Principal' ' The test for determination whether a person has or has not been constituted as an agent is required to be applied. We have to find out whether defendant No. 1 had the power to do any act for the plaintiff or whether defendant No. 1 could represent the plaintiff in dealing with the third persons making the plaintiff answerable. The terms show that defendant No, 1 had to purchase diesel engines at a price to be fixed by the plaintiff That price might vary on different occasions, but that price would be the price at which the Distributors would get diesel engines. The price by another circular is fixed so far as the third person is concerned. That price is higher. Defendant No. 1 is expected to sell at that particular price. The difference naturally would be his profit. The question would be as to whether the title to the goods passed when defendant No. 1 made purchase from the plaintiff or the title to the goods remained with the plaintiff. The question would be, if the goods are stolen who would suffer that loss. The test would be as to whether defendant No. 1 would be able to represent the plaintiff while dealing with the third party in the sense as to whether if defendant No. J made any contract with any of the third parties, would the plaintiff be bound by that contract or in the alternative whether the third parties would be bound to carry out that contract so far as the plaintiff is concerned. The question would be whe-ther the plaintiff would be able to sue the third parties 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 : 1SCR30 . 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 effectof an instrument is permissible where thereremains a doubt as to its true meaning.Evidence of the acts done under it is a guideto the intention of the parties in such a caseand particularly when acts are done shortlyafter the date of the instrument.'
We may only say that the only terra whichis varied by the conduct is that though inwriting it was mentioned that a particularamount of deposit will be paid at the timeof putting orders and that the remainingamount shall be paid at F. O. R. Baroda Ohpresentation of the R. R. it appears that thecase of the plaintiff is that the goods weresent as and when ordered and the paymentswere received as and when defendant No. 1could make arrangements and ultimately arunning account is produced by the plaintiff.From this atone one cannot say that the defendant was not purchasing diesel enginesbut he was storing them on behalf of theplaintiff.
7. The second case to which reference was made was the case of Punjab State Co-op. Supply and Marketing. Federation Ltd., Chandigarh v. Commr. of Income-tax, Patiala, reported in 1980 Tax LR 1029. In para 18-A of the judgment what is observed is as under :--
'It is well settled that while interpreting the terms of the agreement, the Court has to look to the substance rather than the form of it. The mere fact that the words 'agent' or 'agency' or 'sole distributor' or the words 'buyers or sellers' are used to describe the status of the parties concerned, is apt sufficient to lead to the irresistible inference that the parties in fact intended that such status would be confirmed. Thus, mere formal description of a person as an 'agent' or 'sole distributor' or 'buyer' is not conclusive unless the context shows that the parties clearly intended to treat a buyer as a buyer and not as an agent.'
In our view this authority does not help the appellant. In any case it does not carry the case of the appellant any further.
8. On behalf of the respondents the learned advocate Shri Majmudar relied upon a case of Ganesh Export and Import Co. v. Mahadeolal Nathmal, reported in 0065/1956 : AIR1956Cal188 . In that case it was observed as under (at p. 194):--
'In order to constitute the relation of agency it is essential that goods should be sold to customers introduced by the agent not on behalf of the agent but on behalf of the Principal. If the goods are sold on behalf of the alleged agent and if the alleged agent is to be treated as the purchaser, he ceases to 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 0065/1966 : AIR1967SC181 . 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 be the owner of the goods and who is therefore liable to account for the proceeds.'
In this case the diesel engines were always purchased by defendant No. 1 for the price to be paid. Even according to the case of the plaintiff part of the price was immediately paid and the rest was paid in due course. A regular account was maintained according to the plaintiff and on the basis of that account the suit is filed. We are conscious of the fact that the plaint was amended thereafter and alternative case of the agency was tried to be made out. The amendment of the plaint did not change the facts of the case. We may here say that the suit was filed on the basis of the bills and tbe ledger and a particular amount was claimed. After filing of the written statement by the defendants the plaintiff thought that there was difficulty in getting the decree because on the basis of the account the suit was clearly baired by law of limitation. The reason was that all transactions were completed between the two dates. The first transaction is dated 26-9-1967 and the last bill is dated 28-10-1969. We may here say that the suit was filed on 3-3-1972 and, therefore, except for the last three bills which were dated 20-3-1569, 17-8-1969 and 28-10-1969 all other items were barred by law of limitation. The last three items were small items. They ate of Rs. 53-56, Rs. 98-80 and Rs. 96-66. So out of a total amount claimed which was Rs. 51,486-89 except the above three items the whole amount was time-barred. Clearly to obviate this difficulty another notice was given and that notice is Exhibit 113. That notice is dated 21-11-72. It is given after many months after the suit was filed and thereafter two amendment applications Exhibits 35 and 42 were filed. Now in order to substantiate the case which is tried to be put, Civil Application No. 2291 of 1975 was given by which the plaintiff desired to lead additional evidence. The additional evidence which the plaintiff desired to produce, tbe plaintiff attached the copies thereof with that application. We have gone through the entire bunch of papers which are tagged with this Civil Application. The question which is required to be considered is whether this application was required to be granted. The law on the point is laid down in Order XLI, Rule 27 of the C. P. C. where h is laid down as under:--
'27. (1) The parties 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 produce extract from the cash book and the sale register through oversight. We have examined this aspect of tbe case and we only say that the witnesses examined on behalf of the appellant stated in clear terms that the sale register, cash book etc. were being maintained by the plaintiff film. In fact, therefore, no case is made out for producing additional evidence. We have thereafter examined the matter from the aspect as to whether the documents could be of any use for the purpose of deciding this matter or as to whether there was sufficient cause apart from what the appellant stated and we may only say that if we bad allowed the production of these documents it would not have led the case of the appellant any further and the documents would not have been of any use for the purpose of deciding this matter.
10. The first document which is dated 28-9-1967 is a letter written by the plaintiff to Gujarat State Co-operative Land Development Bank and it is in regard to two bills, one in the name of M/s. Mohanbhai Motibhai and another in tbe name of M/s. Chuni-lal Jesshingbhai. It has been stated that in regard to those two bills tbe cheques may be handed over to M/s. Vijay Traders i.e. defendants. It was urged that there was an agreement by which Gujarat State Co-operative Land Development Bank was to advance the money and there wag a tri-party agreement. No such agreement ii tried to be produced. From this letter alone one can never come to a conclusion that there was any such agreement amongst the three persona. This letter could not establish that there was any agreement between the plaintiff and defendant No. 1 by which a contract of agency was created and that defendant No. 1 was not an outright purchaser of diesel engines. It could be that after purchasing the diesel engines defendant No. 1 might sell those engines to third parties and Gujarat State Co-operative Land Development Bank may for the purpose of development of agriculture, advance monies on the basis of those purchases to third parties who might purchase diesel engines. In order that the advances may not be used for some other purposes they may insist for bills and they may not directly make payments to the third parties but make payments to the persons from which the third parties might have purchased. That would not make the seller to the third parties an agent of the plaintiff merely because 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 reason to allow the production of these documents as we do not find that any useful purpose would be served by production of these documents and we also do not feel that the production of these documents is necessary for the purpose of deciding this appeal. There is no cause and it can never he suggested that there is sufficient cause to allow the production of such documents. We may only say that the production, if allowed, would not only not serve any useful purpose but will hamper the proceedings inasmuch as the witnesses will be required to be examined to prove the documents and immediately thereafter rebuttal evidence would become necessary. It would be an exercise in futility. Under these circumstances we have come to the conclusion that the additional evidence cannot be permitted to be led in this appeal. Civil Application, therefore, is required to be dismissed.
12. The next question which was urged with great vehemence was in regard to the limitation. Firstly it was on the basis of Exhibit 111. Mention of this document is made in the plaint itself. Therefore, one can say that this is the basis of the suit. The document is signed by one Vechatbhai Dhirubhai. Admittedly Vechatbhai Dhirubhai is not a partner of the firm of defendant No. 1. It appears that when the plaint was drafted in para 5 it was mentioned that letter dated 17-3-1969 was signed by the partner of the defendant and, therefore, the suit was within time. When the plaint was presented perhaps it was realised that Vechatbhai was not a parluer and, therefore, on the word 'partner' a line was drawn and in that place the word 'agent' was written. Thereafter it was realised that that letter was not handed over by the defendant and, therefore, it was mentioned that that letter was handed over by the agent of the defendant. Now when the evidence was given, Umed-bhai was examined by the plaintiff at Ext. 67. He in his evidence stated that Vechatbhai signed Exhibit 111 dated 17-3-1969 in his presence and in presence of defendant No. 5. Thereafter in deposition the witness stated that Vechatbhai had paid the amount of Exhibit 111 in presence of defendants Nos. 2, 3 and 5. Now if any of the defendants were present when Vechatbhai made the payment or signed Exhibit 111 the plaintiff instead of taking signature of Vechatbhai would surely take signatures of all the defendants who were present. There was 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 thedefendants. Now, therefore, so far as Exhi-bit 111 is concerned it cannot save any limitation. There is absolutely no evidence tocome to the conclusion that Vechatbhaimade any payment on behalf of the defen-dants or that Vechatbhai was an agent ofany 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 page there is signature of Ramesh R. Patel for Vijay Traders on 29-11-1971. It was submitted with great vehemence that this signature must be treated as an acknowledgment and the limitation must start from that date. Even if we have allowed this evidence to be led, the document mark 33/2 could never become an acknowledgment. Ramesb R. Patel is not a partner of defendant No. 1. He is not the defendant. It is not shown to us how he bad any authority to bind the defendants. It is not known as to under what circumstances the copies were given to him when they were demanded by defendant No. 5 and how his signature was obtained. Even if Ramesh R. Patel had authority to bind the defendants and he signed in token of having received the extracts, how such a signature could work as an acknowledgment could not be suggested. The signature only would mean that the extracts were given to Ramesh R. Patel. Those extracts may be true, may be false. Ultimately on verification they may turn out to be anything. Thereafter if the defendants found that the extracts were correct it was for them to decide as to whether they should acknowledge or they should not acknowledge. Receiving an extract by somebody could never become an acknowledgment by the defendants. Further we may say here that defen-dant No. 5 gave evidence at Ext. 126 and he stated that Ramesh was aged 10 or 12 years on that date. He is not cross-examined oh that aspect of the case. If Ramesh was a minor he could bind none. Therefore, the documents marks 33/1 and 33/2 also do not advance the case of the appellant any further. We may here say that this document is not mentioned in the notice correspondence or in stating the cause of action in the plaint and it is not referred to in the deposition of the plaintiff as. well. In any case this is not a document which could be stated to be an acknowledgment by the defendants. We may here say that from the registration certificate of defendant No. 1 which is produced at Ext. 135 it is clear that defendants Nos. 4 and 5 joined the firm on 1-10-1969. The suit transactions were of prior date. It may be that as defendants Nos. 4 and 5 became partners the debts, if any, of the partnership would bind them but if defendant No. 5 took up the defence that he was hot a partner, it would Only mean that when the transactions took place he was not a partner. Merely because 'defendant No. 5 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 plaintiff had absolutely, no cause of action to ask for any accounts so far as the defendants are con-cerned. The defendants were purchasing the diesel engines for which part payment was being made and the plaintiff was main-taining regular account books for diesel engines which wore supplied to the defendants. The accounts were, therefore, with the plaintiff and the plaintiff bad not to ask for any accounts from the defendants. If the plaintiff directly sold diesel engines to third parties in the territories for which distributorship was given to the defendants. The accounts were with the plaintiff for which the plaintiff was liable to give commis-sion to the defendants, the defendants could only ask for the accounts so far as such transactions are concerned. We are not concerned with this aspect because the defendant has not filed any cross claim. But we can only say that a suit for accounts so far as the defendants are concerned was not maintainable against them: firstly because defendant No. 1 was Dot agent appointed under thee agreement Exhibit 112. There was no liability attached to defendant No. 1 for submitting any accounts. He was outright purchaser of diesel engines and he was selling to third parties On his own risk; secondly the defendants had no accounts which the plaintiff had not got, In fact the plaintiff had all accounts with them and they said so when they examined several witnesses and in spite of that fact they chose to produce only bills and the ledger and, therefore, the learned Civil Judge came to the conclusion that the plaintiff did not establish their claim. Civil Court rightly came to conclusion that all items prior to 3-3-1969 were barred, by law of limitation. The conclusion reached, that defendant No. 1 was not a agent is also correct. oN THese conclusions the only alternative was to dismiss the suit of the plaintiff and, therefore, in our opinion the suit of the plaintiff was rightly dismissed by the learned Civil Judge, (S. D.), Baroda. No interference is called for. The appeal, therefore, stands dismissed.
14. It appears to us that the last three items were within limitation and the plain-tiff might have succeeded in regard to those items if they would have produced all the documents which they bad. This we say only with a rider because they could have only succeeded in regard to those three items if all the documents that they produced were genuine and true. It may be that they might have produced all documents and yet they might have failed because the documents may not be genuine and, therefore, perhaps they did not produce them. It may be that they wanted to avoid some liability as suggested by the defendants. But looking to the relationship between the parties which existed for number of years, by which both the parties might have been profited we do not propose to pass any order in regard to costs.