P.N. Mookerjee, J.
1. This Rule raises an important question. It involves the construction of Item 4, Clauses (iv) and (v), of the First Schedule, referred to in Section 5 (4) of the City Civil Court Act.
2. The suit in question was a suit, brought by the opposite party, for recovery of certain amounts, claimed by his as commission agent of the petitioner after accounting. The claim was laid at Rs. 7,000 and odd. In the written statement, an objection was taken that, on the above averments of the plaintiff, the suit was not entertainable by the City CivilCourt and reliance was placed, apparently, in the written statement, upon Clauses (iv) and (v) of Item 4 of the First Schedule of the said Act, referred to hereinbefore.
3. The matter appears to have been argued before the learned trial Judge, more emphatically under Clause (v) and reference to Clause (iv) is not to be found in the judgment of the learned trial Judge. Under Clause (v) the suit, in order to come within the said Clause of Item 4 of the First Schedule, must be a suit, exceeding Rs. 5,000 in value, 'relating to or arising out of transactions of mercantile agents, as defined in the Indian Sale of Goods Act, 1930.' The learned trial Judge has held that, although, admittedly, the value of the suit exceeded Rs. 5,000, the plaintiff was not a mercantile agent, as required by the said Clause (v) and, accordingly, the transaction in question was not a transaction of mercantile agents with the consequence that the said Item would not apply. Upon that view, he has overruled the defendant's objection to the jurisdiction of the City Civil Court to entertain and try the instant suit upon the further finding that a part of the cause-of-action, admittedly, arose within the jurisdiction of the said Court.
4. In this Rule, the first question that arises for consideration is whether the learned trial Judge was right in holding that the plaintiff opposite party was not a mercantile agent, as contemplated under the said relevant provision. Mercantile agent, for purposes of Clause (v) of Item 4 of the First Schedule, is, on the terms of the said Clause, a mercantile agent, as defined in the Indian Sale of Goods Act. Tins takes us to Section 2, Sub-section (9) of this latter Act, where mercantile agent is defined as follows:
'In this Act, unless there is anythingrepugnant in the subject or context,--
* * * * * (a) 'mercantile agent' means a mercantile agent having in the customary course of business as such agent authority either to sell goods, or to consign goods for the purposes of sale, or to buy goods, or to raise money on the security of goods.'
5. It is not disputed by the plaintiff--and. indeed, that is admitted in his plaint, --that he was a commission agent by profession. It is not also disputed that he was appointed by the defendant a commission agent for sale of the goods in question. The learned trial Judge had held that as this appointment was under a contract, the plaintiif's authority to sell the goods must be held to have arisen out of that contract, and accordingly, he could not be held to have, in the customary course of business, as agent, as aforesaid, authority to sell the goods and, upon that footing, he cannot be held to be a mercantile agent.
6. We are unable to accept this conclusion of the learned trial Judge. The mere fact that there was a contract of appointment as commission agent, setting out the terms, on which the said appointment was made, would not take the commission agent out of the category of mercantile agent. Once he is appointed commission agent or an agent for sale of goods on commission, his course of business, under that appointment or transaction, would be sale of goods on commission and he would have, in the customary course of that business, as agent, as aforesaid, authority to sell goods, thus coming within the definition' of mercantile agent, as quoted above.
7. It is to be remembered in this connection that the above definition substantially comes from a corresponding English statute and under the said statute, namely, the English Factors Act, it is now well established that, for making a person a mercantile agent, it is not necessary, even to have a general character of an agent of a particular type or even agency on behalf of a number of principals or in respect of a number of transactions. A person, appointed as agent to sell goods on commission, even for one principal and in or for a single transaction, has been held by the English Courts to be a mereantile agent, (vide, in this connection, Oppenheimer v. Attenborough & Sons, (1908) 1 KB 221, Weiner v. Harris, (1910) 1 KB 285 and Lowther v. Harris, (1927) 1 KB 393).
8. The above authorities fully establish, that, even where the appointment was under a contract, the agent was still a mercantile agent, having returnd to the nature of the business, for example, sale on commission. In this view, we would hold that the plaintiff opposite party was a mercantile agent, as required by Clause (v) of Item 4 of the First Schedule of the City Civil Court Act. The transactions in question were also transections of the plaintiff as mercantile agent vis-a-vis the defendant, who was the principal. In this context, the said transactions may well be regarded as coming within the description 'transactions of mercantile agents' as required under the said Clause (v). It is not necessary for that purpose that both the parties must be mercantile agents. Such a construction would unnecessarily whittle down the scope of the Item. It is enough if the suit is in respect of a claim, arising between the mercantile agent as such visa-vis the principal.
9. We may also point out that, in the instant case before us, both the parties fill the character of merchants and traders and the transactions in question also relate to the selling of goods, apart from the fact that the same may also relateto the construction of the mercantile document,--the document of commission agency, in this view, the instant suit would also come under Clause (iv) of the said Item 4 of the First Schedule of the City Civil Court Act and the claim here, admittedly, being above Rs. 5,000 the instant suit would be outside the jurisdiction of the City Civil Court both under Clause (iv) and under Clause (v) of Item 4 of the First Schedule of the City Civil Court Act.
10. We would, accordingly, make this Rule absolute, set aside the impugned order of the learned trial Judge and direct him to return the plaint to the plaintiff's lawyer for presentation to the proper Court.
11. There will be no order for costs in this Rule.
S. K. Chakravarti, J.
12. I agree.