Vijay Traders Vs. M/S. Bajaj Auto Ltd.  INSC 612 (1 November 1995)
Uddin (J) Faizan Uddin (J) Sen, S.C. (J) Faizan Uddin, J.
1995 SCC (6) 566 JT 1995 (7) 608 1995 SCALE (6)150
This appeal at the instance of the plaintiff has been directed against the
judgment and decree dated 27,1,1992 passed by the High Court of Bombay in First
Appeal No. 490/1974 affirming the judgment and decree dated 21,1,1974, passed
by the Civil judge, Senior Division, Ahmednagar dismissing the suit of the
plaintiff-appellant except for an amount of Rs.4419.81 which was admitted.
appellants hereinafter shall be referred as plaintiffs and the respondents as
facts in brief leading to this appeal are that the plaintiffs are a trading
firm registered under the Indian Partnership Act, having its Office at Station Road, Ahmednagar. The defendants are a
Company registered under the Indian Companies Act as a Public Limited Company
having its Registered Office at Pune, The defendants are the manufacturers of
Scooters called Vespa Scooters and Vespa Auto-rickshaws, hereinafter referred
to as Vespa commercials. Due to the shortage of automobiles at the relevant
time the Central Government in exercise of its powers conferred by Section
18(G) of the Industries (Development & Regulation) Act, 1091 had
promulgated an Order called the Scooter (Distribution & Sale) Control
Order, 1000" and later on similar order was promulgated in respect of Vespa
Commercials, The plaintiffs alleged that the defendants wanted to secure proper
distribution and sale of their products mentioned above and, therefore, wanted
to appoint Agents at different places including Ahmednagar.
case of the plaintiffs was that the defendants by their latter/order dated
9/12-10-1964, appointed the plaintiffs as their permanent sole selling agent
for Vespa Scooters and December
12, 1966 for the Vespa
Commercials in the district of Ahmednagar and thus they were the sole
distributors of the said vehicles and the appointment was irrevocable. The
plaintiffs took the plea that the appointment constituted an agency coupled
with interest and the relationship between the parties was that of principal
and agent. The plaintiffs alleged that they secured 2700 orders for Vespa
Scooters and 501 orders for Vespa Commercials. But the defendants wrongfully
terminated the distributorship with effect from 1.7.1968 for Vespa Scooters by
their letter dated 4/7.8.1968 and by a subsequent letter dated 28.8.1968 the
defendants terminated the distributorship for Vespa commercial also with effect
form 1.10.1968 and directed the plaintiffs to transfer the orders booked by
them together with the registers and postal deposit books to their Branch at Wakdevadi,
Pune. The plaintiffs alleged that this termination was wrongful, illegal and
without proper notice, causing loss to the plaintiffs and, therefore, filed the
suit for damages for wrongful termination and rendition of accounts.
defendants contested the suit by denying the allegation that they and appointed
the plaintiffs as their agent. The defendants denied the relationship of agent
and principal as alleged by the plaintiffs. The defendants pleaded that they
had never appointed the plaintiffs as their sole, permanent and irrevocable
agents but their relationship was that of principal to principal. The
plaintiffs used to pay for the said automobiles and sell them independently.
The defendants asserted that it was not a fact that plaintiffs were appointed
distributors. The demand for supply was greater than the capacity of the
defendants to manufacture the vehicles and therefore, there was no question of
the defendant's desiring to have a better distributing agency. The defendant's
took the plea that the plaintiffs were appointed as ordinary distributors which
could be terminated at any time. But the plaintiffs were never required to
procure any orders from the customers on behalf of the defendants and that the
defendants had a right to terminate the contract with a particular dealer at
their sole discretion and their decision to that effect was final.
defendants, in their pleadings refuted the claim of the plaintiffs firm.
learned Trial Judge held that the plaintiffs had failed to establish that there
was any relationship of agent and principal between the parties and the
termination of distributorship was lawful and, therefore, dismissed the suit of
the plaintiffs except for an amount of Rs. 4419.81 which was admitted by the
defendants, The High Court reappreciated the evidence on record and recorded
the finding that there was no material to establish relationship of principal
and agent between the parties and that the documents and the evidence on record
indicated that the plaintiffs purchased from the respondents the vehicles
allotted to them at the net dealer's price, and retained the defference as
their profit and that being so the relationship between the plaintiffs and
defendants in respect of sale by the plaintiffs' was not the relationship of
agent and principal. With these findings the High Court affirmed the judgment
and decree of the Trial Court and dismissed the plaintiffs appeal against which
this appeal under Article 136 (1) of the Constitution of India has been
Learned counsel for the plaintiffs-appellants contended that the distribution
and sale of the Vespa Scooters and Vespa Commercials were regulated and
controlled by Scooter (Distribution & Sale) Control Order, 1960 and after
the plaintiffs were appointed as sale distributors by the defendants the
defendants were under an obligation to sell the products to the customers whose
orders were booked by the plaintiffs for which the defendants gave their own
guarantee/warranty for the vehicles manufactured by them and the defendants
also gave guarantee cards duly endorsed by them at the time of delivering the
vehicles. He also submitted that the intending purchasers of the vehicles were
required to apply in the prescribed form with a prescribed guarantee from the
post Office payable to the dealer at the time when vehicles would be ready for
delivery and the plaintiffs in the capacity of a dealer of the respondents
entered the names of such purchasers in the register in accordance with the
date of receipt of applications and the vehicles were delivered to the
intending purchasers according to the serial order in the said register and
that these facts coupled with latter dated 8,10,1984 with regard to the
appointment of plaintiffs-appellants as distributor, clearly established that
the relationship between the parties was that of an agent and principal,
Learned counsel for the plaintiffs-appellants therefore, vehemently urged that
the view taken by the learned Trial Judge as well as by the High Court is
erroneous and deserve to be set aside.
view of the afore-mentioned facts and circumstances the short question that
arises for consideration is whether there existed a relationship of agent and
principal between the parties or there was only relationship of buyer and
seller between them.
Here a reference may be made to Section 182 of the Contract Act which defines
an agent thus:
`agent' is a person employed to do any act for another of to represent another
in dealings with third persons.
person for whom such act is done or who is so represented, is called the
has, therefore, to be seen whether in the present case the plaintiffs were
employed by the defendants to sell their products i.e. Vespa Scooters and Vespa
Commercials to the customers on their behalf or while so dealing they
represented the defendants in the transaction with third parties i.e. the
ultimate purchasers of the vehicles so as to bring the defendants in the
category of the principal and the plaintiffs as their agent.
order to determine the relationship between the parties it would be appropriate
to look to the contents of letter dated 9.10.1964 by which the plaintiffs were
appointed as dealers/distributors by the defendants of their products and the
evidence on record as there is no written contract precisely setting out the
nature of contract between the parties. The letter dated 9.10.1964 on which the
plaintiffs-appellants have placed reliance to spell out the relationship of
agent and principal between the parties reads as under :
have pleasure in appointing you distributor for Vespa Scooters at Ahmed nagar.
Your territory will be city of Ahmednagar.
have already explained to you the procedure regarding announcement in the
paper, registration of orders etc., you should accordingly arrange for the
necessary advertisements in the papers and start the registration of orders
seven days after necessary announcement appears in the paper.
From a bare perusal of the contents of the letter reproduced above it is
difficult to accept that it envisages any relationship between the parties as
that of agent and principal but it relates to the appointment of the plaintiffs
as distributors and not as an agent to sell the products of the defendants to
purchasers, The question whether the plaintiffs took the delivery of the
vehicles manufactured by the defendants in the capacity of an agent for sale on
their behalf or whether the plaintiffs themselves purchased the vehicles
out-right, would largely depend upon the terms of the contract.
The terms of the contract are not clearly spelt out from the letter reproduced
above appointing the plaintiffs as distributors and, therefore, the evidence
produced by the parties on record has to be looked into, One Hastimal Chandmal Muner,
a partner of the plaintiffs firm was examined as a witness who deposed that the
talks took place in his presence in respect of the dealership with one Firodia
who represented the respondents and thereafter the letter dated 9.10.1964 was
received by the plaintiffs.
to the terms of the dealership the dealer was to get the difference between the
retail and wholesale price.
stated that when the scooter was sold to the customer, the customer was
entitled to three free servicings thereof by the plaintiffs for which the plaintiffs
were paid Rs.21/- by the respondents. He admitted that the company used to
despatch the letters to the plaintiffs mentioning the allotment sanctioned in a
particular month and the plaintiffs were communicated wholesale price of the
scooters allotted in that particular month and the plaintiffs used to send the
amount on receipt of such allotment letter. H also stated the sometimes the
delivery was made even before the payment of the amount on account of the
confidence that the defendant-company had in the plaintiffs firm. He admitted
that as per rules the plaintiffs should send the amount first and it was
thereafter that the delivery was to be made. He also admitted that the
transport charges were paid by the plaintiffs firm and that if the scooter was
damaged during transit it had to be suffered by the plaintiff-firm.
similar was the statement of Sharaschandra Kamlakant Paranjape examined on
behalf of the defendants. He categorically stated that normally deliveries of
the vehicles were made to the distributors on receipt of the price and if the
amount was not sent the defendants did not despatch the scooters.
From the evidence discussed above it is abundantly clear that the plaintiffs
were buying the vehicles from the defendants for resale and the assertion of
the plaintiffs about agency is quite inconsistent with the notice of
transaction between the parties, The evidence discussed above clearly goes to
show that the contract was one of sale and if in fact the plaintiffs were
intended to be constituted as agents for sale of the vehicles on behalf of the
respondents the terms of the contract would have been entirely different. It
cannot be disputed that even an agent can become a purchaser when the agent
makes payment of the price to the principal on his own responsibility. In such
a circumstance the agreement would be one between vendor and purchaser and not
one of principal and agent.
Here a reference may be made to a decision of this Manufacturing Company
Limited [AIR 1958 SC 1002] in which the manufacturer sold the goods to the
licensed export dealers who exported the goods to the foreign buyers were
agents of the manufacturer or the export dealers themselves were the principals
and not the agent of the manufacturers.
Court took the view that such a transaction would not make the exporters as
agents of the manufacturers because of the very act of purchase, the exporters
became the principals buying as such, Similar was the view expressed by Co.
[AIR 1981 SC 967].
Learned counsel for the appellants also submitted that though the appointment
of the appellant-firm as an agent was irrevocable yet the respondent-company
terminated the same without reasonable notice as required by Section 206 of the
Contract Act. From the discussion afore-mentioned it is clear that no
relationship of agent and principal is established between the plaintiffs and
defendants and, therefore, in this case, the question of application of Section
206 did not arise. In any case it may be noted that the respondent-company had
given a notice terminating the distributorship after about 15 days from the
date of receipt of said notice, The said period of 15 days cannot be said to be
unreasonable for termination of distributorship.
the present case also as noticed above, it is clear from the evidence that the
contract provided that the distributor will pay the price of the vehicles
ordered and delivery was to be given to the plaintiffs an payment of the price,
The defendant-company took no risk with regard to the damage caused to the
vehicles during transit and the same had to be suffered by the plaintiffs-firm.
Thus the contract between the plaintiffs and the defendants would be one of
purchase and sale and not of any agency. In these facts and circumstances the
view taken by the two courts below cannot be said to be erroneous so as to call
for any interference.
the result the appeal fails and is dismissed but without any order as to costs.