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Judgment
This second appeal is directed against this judgment and decree dated 28-9-1995 passed in OS No.166 of 1991 on the file of the III Additional District Munsif, Cuddapah, which was confirmed by the judgment and decree of the Principal District Judge, Cuddapah, in AS No.41 of 1995, dated 9-6-1997.
Sri M.R.K. Chowdary, learned senior Counsel appearing for the appellants, strenuously contended that the Courts below failed to take note of the proviso to Rule 64 of the Andhra Pradesh (Agricultural Produce and Livestock) Market Rules, 1969 (for short ''the Rules''), under which no liability can be fixed on the Commission Agent for the goods sold by the seller to the purchaser directly. As such the question of payment of any amount by the Commission Agents-appellants for the goods sold in the market-yard does not arise. Even assuming that the appellants are liable to pay the amount, as the suit is not for rendition of accounts, the first transaction dated 14-3-1988 under which the respondent is now claiming Rs.8,820/- is squarely barred by limitation and to that extent the judgment and decree of the Courts below have to be set aside.
The undisputed facts in this case are that the appellants herein are doing Commission Agency business in Cuddapah District Market Yard under the name and style Veeranjaneya Traders, after obtaining licence from the market yard. On 14-3-1988 the respondent herein entrusted to the appellants two turmeric bags of Kadi variety and nine turmeric bags of Vunta variety for sale. Likewise on 12-1-1989 the respondent entrusted another seven turmeric bags of Vunta variety to the appellants for sale. When sale consideration for the above turmeric was not paid to the respondent, he got a legal notice issued on 15-7-1991, which was marked as Ex.A1. The appellants in their reply dated 24-7-1991, which was marked as Ex.A2, while admitting entrustment of the turmeric on the first occasion, denied the second entrustment. As far as the payment of sale consideration is concerned, it is their case that the turmeric was sold by the respondent directly to the purchaser by using his officers as commission agent and immediately after the sale was over on 14-3-1988 the sale consideration was paid to the respondent after deducting the commission and other incidental expenses. Hence there is no liability on his part to pay any amount. Thereafter, the respondent field OS 166 of 1991 on the file of the III Addl. District Munsif, Cuddapah, for recovery of Rs. 17,010/-towards value of the turmeric entrusted to the appellants with interest and costs. The appellants stuck to his version in the written statement apart from contending that the suit is barred by limitation.
On the basis of the pleadings the trial Court framed the following issues :
Whether the plaintiff is entitled for the decree of the suit amount ?
Whether D1 is not a member of joint family and the firm?
Whether the claim of the plaintiff is barred by limitation ?
To what relief?
The trial Court held all the issues in favour of the plaintiff-respondent and against the defendants-appellants. Aggrieved by the said judgment and decree, the appellants carried the matter in appeal to the Principal District Judge, Cuddapah, in AS No.41 of 1995 and the appeal met with the same fate.
In this second appeal, Sri M.R.K. Chowdary learned senior Counsel appearing for the appellants strenuously contended that the appellants being Commission Agents the question of entrustment of any goods that were brought for sale to the market-yard, to them, does not arise and if there is any entrustment of the goods, the appellants have to issue Amanat Parti. As it is not the case of the respondent that any Amanat Patti was given by the appellants, by no stretch of imagination it can be held that there is any entrustment of goods for sale to the appellants. To substantiate his contention, that the role of the appellants is only to arrange buyer and the seller will be directly selling the goods to the purchaser and collecting sale price, learned Counsel for the appellants placed his reliance on Rule 64 of the Rules. Rule 64 of the Rules reads as follows:
"64. Commission Agent or Buyer to pay sale proceeds to the seller promptly :--When the notified agricultural produce, livestock or products of livestock is sold through a commission agent, he shall pay the sale proceedings of the notified agricultural produce, livestock or products of livestock from his own account to the seller on the same day of its sale after deducting charges payable by the latter as permissible under the bye-laws of the market committee and recover the same from the buyer:
Provided that when any notified agricultural produce, livestock or products of livestock is sold directly by the seller to the buyer, the latter shall pay the sale proceeds to the seller immediately on the same day after the weighment, measurement or counting is done through the market committee on the basis of measurement or counting prepared by it. He shall be entitled to lift the notified agricultural produce, livestock or products of livestock only after payment of sale proceeds."
From the above it is seen when any agricultural produce, livestock or products of livestock are sold through a commission agent, he is duty bounded to pay the sale proceeds from his own account to the seller on the same day of its sale after deducting the charges payable by the latter as permissible under the bye-laws of the market committee. Sri M.R. K. Chowdary learned senior Counsel, placed strong reliance on the proviso which is to the effect that when any agricultural produce, livestock etc., it sold directly by the seller to the buyer, the latter shall pay the sale proceeds to the seller immediately on the same day after the weighment, measurement or counting is done through the market committee. To my mind, in this case, this proviso has no application. The proviso deals with the situation where the sale is effected directly by the seller to the buyer without the involvement of the Commission Agent. It is only the main rule that is applicable in this case as the appellants have admitted that he acted as a commission agent and arranged the buyer and that he prepared tak patti evidencing payment of the amount to the seller. A reading of the Rule 64 of the Rules makes it abundantly clear that on the date of sale of the agricultural produce etc., the Commission Agent has to pay the sale proceeds from his own account to the seller on the same day. So the contention of Sri Chowdary that the amount was directly paid to the seller cannot be accepted.
Further, the appellants being licenced commission agent, are bound to maintain books of accounts and the transaction should reflect in the day book that is being maintained by the appellants, In fact the appellant admits in the witness box that he is maintaining the books of accounts. But he has not chosen to produce the day book to show that the sale proceeds were paid to the respondent. The only evidence that is sought to be placed before the Court about the payment of sale proceeds to the respondent is tak patti prepared by the appellants, evidencing the transaction. It is useful to extract Rule 65 of the Rules :
"65. Issue of Tax Patti :-- Every commission agent shall effect payment in accordance with the tak patti (sale slip) prepared and shall issue the original to the seller, duplicate to the buyer, triplicate to the office of the market committee and the fourth copy duly signed or marked with the thumb impression of the seller as having received the net amount of the sale proceeds shall be retained by the commission agent himself for a period of two years or till such time as the tak patties are audited by the officer authorised whichever is earlier."
From the above it is seen that tak patti is nothing but sale slip and the commission agent is expected to prepare this tak patti in quadruplicate evidencing the total sale consideration received and the expenses incurred like commission, labour charges, weighment and other incidental expenses and arrive at the net sale consideration payable to the seller. The original of tak patti shall be issued to the seller, duplicate to the buyer, triplicate to the office of the market committee and the 4th copy duly signed or marked with the thumb impression of the seller as having received the net amount of the sale process, shall be retained by the commission agent himself for a period of two years or till such time as the tak patties are audited by the officer authorised whichever is earlier. The appellants got the book marked as Ex.B1 and receipt Nos.3 and 44 dated 14-3-1988 evidencing sale of two varieties of turmeric that was entrusted to them for sale were marked as Ex.B2 and B3. The receipt has to be signed by the commission agent, purchaser as well as earlier. These two receipts, though do not contain the signatures of others, they contain the signature of Srinivasalu above the purchaser''s signature. Sri Chowdary, placing strong reliance on the signature, contended that the sale consideration was paid to the respondent then and there itself after the sale transaction was over. But a comparison of the signatures on Exs.B2 and B3 receipts with the admitted signatures of the respondent in these . proceedings, shows that they clearly at variance and it cannot be said that the respondent has signed these receipts. Apart from that, the appellant in the witness box categorically deposed that the contents of Exs.B2 and B3 were prepared by his clerk and they do not contain the signatures or particulars of persons who purchased or the signatures of the plaintiff-respondent. Hence it can be safely concluded that the signatures found in Exs.B2 and B3 are not that of the respondent herein, and it appears that the same person who made the entries in these receipts might have signed.
From the above discussion I hold that there is no substance in the contention of the appellants that on the date on which the sale of Turmeric has taken place they paid the sale consideration to the respondent, in the absence of any documentary evidence.
As far as the limitation is concerned, learned Counsel admits that the second transaction is well within the limitation and he contends that the first transaction is barred by limitation. Section 2(j) and 3 of the Limitation Act, 1963, read as follows ;
"2. Definitions :--ln this Act, unless the context otherwise requires, -
(j) "period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act;
Bar of Limitation :--(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
(2) For the purposes of this Act,
(a) a suit is instituted, -
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted -
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in Court;
(iii) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court."
From this it is evident that though it is not a suit for rendition of accounts or based on accounts, admittedly the appellants acted as an agent and ''the limitation starts from the date when there was a demand for payment of amount and refusal of the same or when no such payment is made on the date when the agency terminates. If we go by agency, the agency continues for both the transactions. As far as payment is concerned, for the first time the respondent called upon the appellants to pay the sale proceeds by his legal notice dated 15-7-1991 and it is not in dispute that from that date the suit was filed within limitation. Accordingly the second contention is also rejected.
Sri Chowdary, learned senior Counsel for the appellants, tried to raise some other contentions like, the amount claimed is not the real value of the turmeric that was fetched in the market, etc. This being a second appeal, I restrained him from raising those contentions in this appeal.
From the above discussion I find no substance in any of the contentions raised by the appellants. The Second Appeal is, therefore, dismissed, with costs.