ORDER This is a petition under Article 226 of the Constitution for a writ of certiorari, quashing the order passed on 9th May, 1952, by the Sales Tax Commissioner, Madhya Pradesh, Nagpur, and for a writ of mandamus to the Commissioner and the State "preventing them (the respondents) from treating the applicant as a dealer". The respondents have not filed a return and the learned Additional Government Pleader appearing for them states that they do not wish to file one as they do not dispute the facts of the case as stated is the affidavit of Rasiklal, the managing partner of the petitioner firm. The case has therefore to the decided on the facts stated in the affidavit. It is stated that the petitioner is a del credere agent of Messrs. Newton Chikhli Collieries, Limited, Parasia, (hereinafter referred to as the company). The petitioner functions to procure customers for the company and guarantees payment of the price of the coal sold to these customers. The consignments are addressed by the company directly to the customers. The railway receipts are also send directly to them. The petitioner has no concern with the customers after they are introduced as solvent buyers except as guarantor for the payment of the price. It is further stated that there was never any sale by the company in favour of the petitioner, nor has the petitioners ever sold goods as its own to the customers. The property in the goods never vested in it. In short, the dealings were, except for introduction and guarantee for solvency, directly between the company and the consumers. The petitioner used to get 4 annas per ton on the deliveries made to the railways and 6 annas per ton on the deliveries to other consumers. The petitioner, who carries on business at Bombay, had opened a branch office at Parasia in this State for facility of business, and the transactions were apparently done through this branch office as stated above. On being called upon by the Sales Tax Officer, the petitioner applied for registration under protest and was registered as a dealer. In every declaration made under rule 26(2) of the Sales Tax Rules the petitioner has stated that it is not a purchaser from the company but is only its canvasser and that it is making the declaration in accordance with the registration certificate. In every declaration made under rule 26(2) of the Sales Tax Rules the petitioner has stated that it is not a purchaser from the company but is only its canvasser and that it is making the declaration in accordance with the registration certificate. On 24th December, 1951, the petitioner made an application to the Commissioner for a declaration that it was not a dealer and was not liable to registration. By an order dated 7th January, 1952, passed under Section 19 of the Sales Tax Act, the Commissioner held that on the facts stated by the applicant it was clear that the petitioner did not carry on the business of selling or supplying goods and was no more than an intermediary between the seller or the supplier on the one hand, and the buyers on the other, and received remuneration for its service as intermediary. The learned Commissioner characterised it as a broker and held that a broker is not a dealer. The facts as stated by the Commissioner were :- "He (the petitioner) is a del credere agent of Messrs. Newton Chikhli Collieries Limited, Parasia. His function is to find out customers for the collieries and guarantees payment for the coal sold to the customers who contract to buy from their principals. Coal is allotted under the Collieries Act by the Coal Commissioner, to the customers, and the applicant canvasses these consumers to buy coal from their principals. The property in goods never vests in the applicant." These are the facts now stated before us and they are not disputed. Thereafter on 29th January, 1952, the petitioner made an application to the Sales Tax Officer, Chhindwara, for cancellation of the registration certificate. After recording the evidence the Sales Tax Officer submitted the report dated 13th March, 1952, to the Sales Tax Commissioner. The facts found by him are also as stated before us. The Officer held that the assessee was not liable to registration and to payment of the tax on the transactions made by the company and that the tax on such sales was to be paid by the company. The facts found by him are also as stated before us. The Officer held that the assessee was not liable to registration and to payment of the tax on the transactions made by the company and that the tax on such sales was to be paid by the company. He further reported that the company and the petitioner had agreed that the assessment for the period from 29th April, 1949, to 21st October, 1949, should be made, for the sake of convenience of accounts, against the petitioner and thereafter till the date of cancellation of the registration certificate. The learned Commissioner did not accept this recommendation. He was of the view that the petitioner was a commission agent inasmuch as it was required to pay the price if the buyer did not pay it and that such a commission agent was covered by the definition of "dealer" in Section 2(c) of the Act. By the impugned order the directed the Sales Tax Officer to proceed with the case. A factor, when he sells goods on credit (for an additional commission, called a del credere commission) and guarantees the solvency of the purchaser, is known as a del credere agent. Del credere is an Italian phrase equivalent to the English word "guaranty" or "warranty". A factor is a mercantile agent who in the ordinary course of business sells or disposes of goods of which he is entrusted with the possession or control by his principal. When he is in possession of the goods, with the consent of the owner, any sale, pledge or other disposition of the goods made by him when acting in the ordinary course of business of a mercantile agent is valid as if he were expressly authorized by the owner to make the same. No doubt, this power is subject to certain limitations provided by the Factors Act, 1889 (52 and 53, Vic. Ch. 45). No doubt, this power is subject to certain limitations provided by the Factors Act, 1889 (52 and 53, Vic. Ch. 45). As stated in Ex parte White ((1871) 24 L.T. 45) :- "A del credere agent is distinguished from other agent who is to sell according to the instructions of the principal, simply in this that he guarantee that those persons to whom he sells shall perform the contracts which he makes with them, and, therefore, if he sells at the price at which he is ordered to sell by the principal and upon the credit which he is ordered to give by the principal, then no doubt, he guarantees that the customers will pay him at that time." The later view is :- "The liability of the del credere agent is a contingent pecuniary liability, not a liability to perform the contract; it is a pecuniary liability to make good in an event of default of the buyer in respect of a pecuniary liability. It does not extend to other obligations of the contract. It does not expose the del credere agent to an action to ascertain the sum due. It is limited to a contingent pecuniary liability in respect of a sum which, as between the seller and the buyer, is an ascertained sum" : Per Buckley, L.J., in Thomas Gabriel & Sons v. Churchill and Sim ([1914] 3 K.B. 1272 at page 1279). The petitioner is not thus a del credere agent. He has not the possession of the goods for the purpose of sale. Nor has he any of the rights of a mercantile agent. So both the petitioner and the Sales Tax Authorities erroneously described it as a del credere agent. The same description is repeated in the petition made here and in the affidavit filed in support of it. The learned counsel for the petitioner did not realize the mistake and did not seek to amend the petition though the definition of del credere agent was brought to his notice during the course of arguments. However, on the facts admitted by the parties the petitioner is not more than a guarantee broker. A broker is an agent whose ordinary course of business is to negotiate and make contracts for his principal for sale and purchase of goods and other property of which he is not entrusted with the possession or control. However, on the facts admitted by the parties the petitioner is not more than a guarantee broker. A broker is an agent whose ordinary course of business is to negotiate and make contracts for his principal for sale and purchase of goods and other property of which he is not entrusted with the possession or control. He has not therefore the authority to deal with the goods which a factor enjoys. Nor has he authority to sue in his own name on contracts made by him. The business of the petitioner was to bring the buyer and seller together and its liability was to pay the price with a right to reimburse itself from the buyer. It was never placed in possession of the property, nor did the property in the goods pass to it at any time. At all material times the Colliery Control Order, 1945, was in force. Under clause 6 of the Order coal is delivered to a consumer at the rate fixed by the Order when a colliery owner signifies his willingness to sell direct to the consumer and an allotment is made by the Deputy Coal Controller to the consumer with his consent for such direct sale. A consumer has thus to apply for allotment of coal and the colliery owner has to express his willingness to sell direct to the consumer. If a broker is employed, a brokerage not exceeding six annas per ton may be paid by the colliery owner to the broker. The sales by the company were thus direct to the consumers and the petitioner was broker in the transactions. A broker is not a dealer within the meaning of Section 2(c) of the Sales Tax Act. We therefore hold that on the facts admitted before us the petitioner was not carrying on the business of selling on behalf of the company and was not a dealer within the meaning of Section 2(c) of the Act. It was therefore not liable to registration. The order dated 9th May, 1952, holding it a dealer under the Act is erroneous. The learned counsel for the respondents contends that the communication dated 9th May, 1952, to the Sales Tax Officer is not an order and cannot be quashed by a writ of certiorari. It was therefore not liable to registration. The order dated 9th May, 1952, holding it a dealer under the Act is erroneous. The learned counsel for the respondents contends that the communication dated 9th May, 1952, to the Sales Tax Officer is not an order and cannot be quashed by a writ of certiorari. The determination of the Sales Tax Commissioner, dated 7th January, 1952, which is styled as an order, was made under Section 19 of the Act. As the petitioner was a registered dealer, it had to apply for cancellation of the registration certificate under rule 14A read with Section 8A(5) of the Act. That application had to be in Form XXVIII and addressed to the Sales Tax Officer. The Sales Tax Officer is not empowered to cancel the certificate. It has to be cancelled by the Commissioner. He had therefore to make a report on enquiry into the facts. He made such a report and the Commissioner was bound to pass an order cancelling of refusing to cancel the certificate. The decision dated 9th May, 1952, is certainly a judicial order under Section 8A(5) of the Act. The learned counsel for the respondents relied on the decision of the Board of Revenue in D. M. Ranade v. State ([1952] N.L.J. 446; 3 S.T.C. 112), where it has been held that the determination under Section 19 of the Sales Tax Act is not binding on the parties before the Sales Tax Commissioner, who are free to accept or reject that advice and consequently no appeal lies against that order. This decision is inapplicable here. The petition therefore succeeds and is allowed. The order dated 9th May, 1952, is quashed and the Sales Tax Commissioner is directed to cancel the registration certificate of the petitioner. Parties will bear their costs as incurred as the petitioner is responsible for this litigation by the wrong use of the term del credere agent. The petitioner shall pay the costs of the paper book, if any. The deposited amount will be refunded after deducting the paper book costs. Petition allowed.