( 1 ) M/s. Rudnap Export-Import, Belgrade, plaintiff filed the suit on 19th April, 1971 for recovery of Rs. 5,98,850. 44 on account of balance of price of goods and. interest @ 6% per annum against M/s. Eastern Associates Co. , New Delhi, a partnership firm (defendant No. 1) and its partners S. N. Goenka and C. R. Dass, defendants 2 and 3. ( 2 ) THE plaintiff alleges that it is a Yugoslav Enterprise. It is registered in the Registry of Economic Organizations, Yugoslavia having its own seal and can sue and be sued in its own name. Shri Jevrem Sofronijevic, its representative in India, is authorised by a Power of Attorney dt. 5th Feb. . 1971 to institute- legal proceedings; In the year 1965, the Agriculture Department, Government of Andhra Pradesh wanted to buy TG 90 S Crawler Tractors of Yugoslav Make. The plaintiff agreed to sell the said goods to the defendants who in turn entered into a contract of sale with the Andhra Pradesh Government. The defendants were to get 20% commission on the ex-factory value of the goods out of which 10% as sales commission and the remaining 10% was towards servicing the machines for a period of three years from the date of delivery. The Andhra Pradesh Government on the request of the defendants agreed to open a letter of credit for 90% of the value of goods in favour of the plaintiff. 10% payment was to be made by the Andhra Pradesh Government to the defendants after one month of the delivery of goods at site. ( 3 ) THE goods were shipped for Madras on 12th Dec. 1966. The Bills of Lading, invoice for Rs. 39,80,669,54 and other documents were sent to the defendants on 19th Dec. 1966. The invoice amount was received by the plaintiff against the Letter of Credit. A sum of Rs. 6,81,178. 00 as commission was remitted by the plaintiff to the defendants on 17th Feb. 1967. The goods arrived at Madras Port. The defendants got the goods cleared from Custom and delivered the same on 29th April 1967 to the Director of Agriculture, Andhra Pradesh Government, Hyderabad. ( 4 ) A sum of Rs. 4,42,296. 62 being 10% of the value of the goods became payable on 29th May, 1967. 1967. The goods arrived at Madras Port. The defendants got the goods cleared from Custom and delivered the same on 29th April 1967 to the Director of Agriculture, Andhra Pradesh Government, Hyderabad. ( 4 ) A sum of Rs. 4,42,296. 62 being 10% of the value of the goods became payable on 29th May, 1967. The plaintiff on the suggestion of the defendants approched Andhra Pradesh Government for payment but it was given to understand that the defendants had failed to discharge their obligations for rendering after sales service and therefore the amount could not be paid to the defendants. ( 5 ) A sum of Rs. 75,689. 18 as commission out of the said sum of Rupees 4,42,296,62 was payable to the defendants and thus a sum of Rs. 3,66,607,44 remained due to the plaintiff on account of balance price of 23 tractors. The plaintiff alleges that the defendants acknowledged their liability in their letter dt. 10th Dec. 1969. ( 6 ) IN the year 1966 the defendants approached the plaintiff for being appointed as distributor of Yugoslavian Dumpers Model D-4 manufactured by M/s. Duro Dakovic, Yugoslavia and su-e- gested thai the plaintiff should deliver two D-4 Dumpers for demonstration and test. purposes. The defendants further suggested that after demonstration the dumpers would be sold in India with the permission of the Government and sale proceeds would be remitted to the plaintiff. If that was not allowed by the Government the Dumpers would be sent back to the plaintiff at the expense of the defendants. A contract was accordingly signed an 7th January, 1967 supplemented by the writing dated 8% August, 1967 ( 7 ) TWO dumpers were shipped on 2nd September, 1967 against Bill of Lading No. 93. The plaintiff sent a Bill of Lading, invoice for Rs. 1,21,800,. 00 and other documents of the defendants. The receipt of these documents was acknowledged by the defendants in their letter dated 20th September, 1967. The dumpers were neither taken delivery by the defendants from custom nor were sent back to the plaintiff. The plaintiff claims Rs. 1,21,800. 00 on account of C. I. F. Value of the two dumpers from the defendants. The plaintiff claims the following amounts from the defendants besides interest @ 6% per annum till realisation and costs of the suit : (A) Balance price of 23 Rs. The plaintiff claims Rs. 1,21,800. 00 on account of C. I. F. Value of the two dumpers from the defendants. The plaintiff claims the following amounts from the defendants besides interest @ 6% per annum till realisation and costs of the suit : (A) Balance price of 23 Rs. 3,66,607,44 tractors (b) C. I. F. Value of 2 Rs. 1,21,800. 00 Dumpers (c) Interest on price of tractors from 29-5- 1967 @ 6% per annum 84,256. 00 (d) Interest on price of 26,137. 00 Dumpers @ 6% per annum 5,98,85044 ( 8 ) THE defendants have pleaded that the plaintiff cannot sue and be sued in its own name; Mr. Jevrem Sotronijevic is neither authorised nor competent to institute the suit and the existence of a Power of Attorney dated 5th February, 1971 in his favour is denied; the suit is not maintainable and is barred by time it is bad for rnisjoinder of causes of actions; the plaint lacks material particulars and proper court-fee has not been paid; the plaintiff ought to have sued Andhra Pradesh Government for the recovery of the amount as the defendants were not the purchasers of the tractors and the same were purchased by the Andhra Pradesh Government from the plaintiff through them; no amount is due to the plaintiff; and on the contrary they are entitled to a sum of Rupees 2,47,460. 73 from the plaintiff; the suit ought to have been for accounts; the defendants did provide after sale service and the supply of defective tractors led to withholding of the amount by the Andhra Pradesh Government; the liability, if any, was never acknowledged by them; there was no concluded contract regarding dumpers and the plaintiff sent defective invoices which were not in conformity with the import licence with the result the dumpers were not cleared from the custom and incurred heavy wharfage which is liability of the plaintiff. The defendants completely denied their liability to the plaintiff. The plaintiff in its replication has denied all allegations of the defendants. ( 9 ) ISSUES framed on 1st Sept 1071, 4th Aug. 1972 and 23rd Aug. 1973 read as under: "1. Whether M/s. Rudnap Export- Import is a legal person, and, if so, whether the suit has been instituted on its behalf by a duly authorised person? 2. Whether the suit is barred by time 3. ( 9 ) ISSUES framed on 1st Sept 1071, 4th Aug. 1972 and 23rd Aug. 1973 read as under: "1. Whether M/s. Rudnap Export- Import is a legal person, and, if so, whether the suit has been instituted on its behalf by a duly authorised person? 2. Whether the suit is barred by time 3. Whether the suit is bad for misjoinder of causes of action? 4. Whether the plaint is lacking in material particulars and if so with what effect? 5. Whether the suit as laid is not maintainable (vis-a-vis preliminary objection No. 9 in the written statement)? 6. Whether proper court-fee has not been paid? 7. Whether the plaintiff entered into a valid contract of sale with the defendants for the supply of 23 T. G. Crawler Tractors? 8. Whether the relationship of the plaintiff in the aforesaid contract was that of principal and agent and not of principal to principal? 9. Whether the plaintiff was required to provide after sales service in respect of tractors? 10. If answer to issue No. 9 is in the affirmative, whether the plaintiff has performed its obligations in respect of after sales service? 11. Whether the plaintiff supplied defective machinery, if so, what was the defect and what is its effect on the suit? 12. Whether there has been a valid contract between the plaintiff and defendants in respect of supply of dumpers, if so, what were its terms, nature and effect? 13. Whether the plaintiff issued invalid invoice contrary to the instructions of the defendants and contrary to the import licence and if so whether the dumpers could not be cleared on this account? 14. To what amount is the plaintiff entitled? 15. Whether the plaintiff is entitled to any interest and if so, at what rate? 16. Relief. The plaintiff examined Mr. Jevrem Sofronijevic and Mrs. Nada Pejic (P. W. 1) as its witnesses. Defendants 2 and 3 flammed themselves besides Santok Singh, a mechanic as their witnesses. ISSUE No. 1: "whether M/s. Rudnap Export-Import is a legal person, and if so, whether the suit has been institutedon its behalf by a duly authorised person? Mrs. Nada Pejic (P. W. 1) is a lawyer by profession. She has deposed that in Yugoslav Law the equivalent of a cornparry is described as an enterprise . The persons seeking to constitute an enterprise have to obtain permission from the local authority. Mrs. Nada Pejic (P. W. 1) is a lawyer by profession. She has deposed that in Yugoslav Law the equivalent of a cornparry is described as an enterprise . The persons seeking to constitute an enterprise have to obtain permission from the local authority. An inquiry is made about the persons going to have charge of the affairs of the enterprise , thereafter the person concerned gets the documents registered in court. The court considers the application, and if it thinks fit, gives a certificate entitling the applicant to commence business. When such a, certificate is given the enterprise attains legal personality. The court his in his possession documents showing who is in charge of the enterprise and who are the persons managing the enterprise . The existence of an enterprise is proved by producing a certificate from the court, permitting the formation of the enterprise . There is no fake company in Yugoslavia, a socialist country. There every company is genuine and duly constituted. The production of certificate establishes the existence of the enterprise . She has further deposed that Rudnap Export-Import is one of the biggest Yugoslavian companies and well known all over the world. This witness has stated further that document marked x is the kind of certificate issued by the court showing establishment of the company along with its translation in English. The English translation is also approved by the Judge of the court and the Ministry of Justice. Procedure for registration of the enterprise has been gone through is apparent from the document marked y . Ministry of Foreign Affairs also approves the document and thereafter it is transmitted to the Consulate of the country having representation in Yugoslavia. For every enterprise there has to be a statute laying down the mode of its management. The document marked z is the document pertaining to the plaintiff. This witness has thus deposed the procedure for the registration of an enterprise under Yugoslavia law equivalent to formation of a company under the Indian Company Law. ( 10 ) MR. Jevrem Sofronijevic, representative of the plaintiff in India as a witness has deposed that he was authorised by Mr. Milan Vlatkovic, General Director of the plaintiff to institute, sign and verify the pleadings. He recognised and proved the signatures of Milan Vlatkovic, General Director on the power of attorney in serbocroatian language marked z-l . ( 10 ) MR. Jevrem Sofronijevic, representative of the plaintiff in India as a witness has deposed that he was authorised by Mr. Milan Vlatkovic, General Director of the plaintiff to institute, sign and verify the pleadings. He recognised and proved the signatures of Milan Vlatkovic, General Director on the power of attorney in serbocroatian language marked z-l . ( 11 ) DOCUMENT marked x is the certificate of registration issued by the County Economic Court of Beograd regarding the plaintiff authorising Milan Vlatkovic, Director General and Luka Kuntic, Councellor of the Enterprise to represent and to sign for and on. behalf of the plaintiff Enterprise. This document purports to bear the signatures of the Chairman: and the seal of the said. court. Document marked y is another statement, issued by the said court of Beograd authenticating the signatures and seal of that court in connection with the present litigation between the parties. ( 12 ) DOCUMENT marked z is an extract from the Statute of the Working Organisation "rudnap" Export-Import from Beograd, Vuka Karadzica 6. Article 2 of the Statute states that the Enterprise has the quality of a legal person. Article 49 mentions the duties and rights of the Director General of the enterprise . He has right to authorise other persons to represent the enterprise and to sign the business documentation of the enterprise . ( 13 ) THE above documents marked x , y and z leave no doubt that the plaintiff enterprise is a legal person. Mr. Milan Vlatkivic is the Director General of the plaintiff enterprise having a right to represent it and also to authorise other persons to represent the plaintiff. ( 14 ) DOCUMENT Marked z-l is the authorisation i. e. , the power of attorney exacuted by the. Director General Mr. Milan Vlatkovic of the plaintiff enterprise in favour Mr. Jevrem Sofronijevic. plaintiff s representative in New Delhi authorising him to sue in plaintiffs name. and to take other legal actions in connection with the present suit. This power of attorney is attested by the Deputy President- Judge of the First Municipal Court of Beograd. ( 15 ) SECTION 85 of the Indian Evidence Act, 1872 reads as under: "the court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge. ( 15 ) SECTION 85 of the Indian Evidence Act, 1872 reads as under: "the court shall presume that every document purporting to be a power of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge. Magistrate (Indian) Consul or Vice Consul, or representative of the (Central Government), was so executed and authenticated", Under this section the court has. to presume that. the power of attorney executed before and authenticated by any court or Judge was so executed and authenticated. The authorisation- marked, z-1 thus satisfies the requirement of Section 85 of the Evidence Act. with the result that this court has to presume that the power of attorney by Milan Vlatkovic, Director General of the plaintiff enterprise in favour of Mr. Jevrem Sofronijevic, permanent delegate in New Delhi was duly executed and authenticated. . . . . ( 16 ) FURTHER all the four documents marked x , y , z and z-l are attested by the Consular Embassy of India, Belgrade. There is thus no doubt about the genuineness of these documents. I ( 17 ) LEARNED counsel for the defendants submits that the authorisation i. e. power of attorney was not authenticated before the court. He says that there is no proof that the person signing the authorisation is a Judge of the court. Further he says that mere production of power of authorisation is not proof of its contents. The power of attorney bears the signature and seal of the court. The Original power of attorney is signed by the Judge of the First Municipal Court of Beograd, There is a seal of that court. The original authorisation is in foreign language but its translation is also certified by the Yugoslavia authorities. This document passed through the Legalization Section of the Yugoslavia Government. Thereafter this document was attested by the First Secretary of Embassy of India at Belgrade. In the usual course of business this document contained the signatures of the Chief of the Legalization Section, competent authority of the department of Foreign office and his signatures having been attested by the First Secretary, Embassy of India, Belgrade must be presumed to be genuine. The First Secretary of the Embassy of India, Belgrade is the representative of the Indian Government. These documents are attested by an official of the Embassy of India. The First Secretary of the Embassy of India, Belgrade is the representative of the Indian Government. These documents are attested by an official of the Embassy of India. The ordinary course for execution of the power of attorney is the execution by the executant, authentication of the execution and signatures of the executant by tha Judge or the court and then transmission of that document by one country to another- In the instant case the power of attorney was executed in Yugoslavia which was authenticated by a Judge, Court of that country and thereafter through the foreign office of Yugoslavia Government whose signatures are attested by the official of the Indian Embassy the power of attorney was received by the plaintiff and filed in the suit. This is the common course of business in getting the power of attorney or a foreigner in another country. The plaintiff company admittedly is a foreign company. It has been recognised as a legal person according to Yugoslavia Law. The Director General of the plaintiff has been authorised to represent the plaintiff and to delegate his powers to others. The Director General thus authorised the permanent representative in India to institute the present suit. The common course of business has been followed in this case and under Section 114 Illustration (f) the court is entitled to presume the existence of the said four documents. ( 18 ) LEARNED counsel for the defendants next submits that the plaintiff enterprise was not registered on the date i. e. 19th April 1971 when the present suit was instituted in this court. He refers to the Statute marked z wherein there is a reference toResolutions of 23rd December, 1971, 27th March, 1982 and others. In the document marked x there is a reference to the decisions of the court which were taken in 1963 although this document is dated 4th August, 1972. The contents of this document reveal that the decisions were taken by the County Economic Court of Beograd in 1963 and the decisions, mentioned therein i. e. Fi-158/63 and Fi-1502/ 63 show that the business activity of the plaintiff enterprise was entered in the records of the court. In other words, it would mean that the plaintiff enterprise came into existence at least in 1963 if not earlier. In other words, it would mean that the plaintiff enterprise came into existence at least in 1963 if not earlier. It is correct that no particular date is mentioned in any of these documents to show when the plaintiff enterprise initially came into existence. ( 19 ) LEARNED counsel for the defendants submits that the powers of the plaintiff enterprise cannot be delegated unless there is express authority to do so. There can be no dispute about this legal proposition. In the instant case Mr. Milan Vlatkovic, the Director General of the enterprise is authorised to represent and to sign for and on behalf of the enterprise The Director General under the Statute has an authority to authorise other persons to represent and to sign business documentation of the enterprise . There is sufficient authority vesting in the Director General to delegate his power to the plaintiff s representative in India Mr. Jevrem Sofronijevic. Thus there is express power under the Statute of the plaintiff (document marked z ) authorising the director General to delegate his powers to others. Article 49 mentions that the Director General of the enterprise is the exclusive executive organ of the working organisation and the highest organ of the management in the enterprise . In other words, he is the top man of the enterprise having powers to take action in the interest of enterprise. ( 20 ) IN view of. these four documents marked x , y , z and z-l , I have no doubt that the plaintiff: is legal person and the suit has been instituted on its behalf by a duly authorised person. ( 21 ) ISSUE Nos. 7 and 8 "7. Whether the plaintiff entered into a valid contract of sale with the defendants for the supply of 23 T. G. Crawler Tractors?" "8. Whether the relationship of the plaintiff in the aforesaid contract was that of principal and agent and not of principal to principal?"the short question for decision 1. 5 : Whether the defendants were the purchasers of 23 tractors or they were only agents of the plaintiff in the sale transaction of these tractors to the Andhra Pradesh Government. Whether the relationship of the plaintiff in the aforesaid contract was that of principal and agent and not of principal to principal?"the short question for decision 1. 5 : Whether the defendants were the purchasers of 23 tractors or they were only agents of the plaintiff in the sale transaction of these tractors to the Andhra Pradesh Government. The contention of the learned counsel for the plaintiff is that the defendants were the purchasers, as they entered into contract with the Andhra Pradesh Government as sellers On the other hand the learned counsel for the defendants submits that they were only acting as agents of the plaintiff in this transactions. His submission. is that the defendants never purchased tractors, that the title to the goods never passed to them, that they never paid or promised to pay price to the plaintiff and therefore his submission is that the defendants were never the purchasers of the tractors. section 4 of the Sale of Goods Act, 1930 reads as under: " (4) (1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another. (2) A contract of sale may be absolute or conditional. (3) Where under a contract of sale the property in the good? is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. (4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred". According to the definition the essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid. The true relationship of the parties has to be gathered from the nature of the contract, its terms and conditions. The terminology used by the parties is not decisive of the legal character. The true relationship of the parties has to be gathered from the nature of the contract, its terms and conditions. The terminology used by the parties is not decisive of the legal character. In M/s. Sri Tirumala Venkateswara Timber and Bamboo Firm v. Commercial Tax Officer, Rajahmundry, Alr 1968 SC 784 the following observations have been made (At p. 787): "as a matter of law there is a distinction between a contract of sale and a contract of agency by which the agent is authorised to sell or buy on behalf of the principal and make over either the sale proceeds or the goods to the principal. The essence of a contract of sale is the transfer of title to the goods for a price paid or promised to be paid. The transferee in such a case is liable to the transferor as a debtor for the price to be paid and not as agent for the proceeds of the sale. 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 will therefore be liable to account for the sale proceeds. The true relationship of the parties in each case has to be gathered from the nature of the contract, its terms and conditions, and the terminology used by the parties is not decisive of the legal relationship". In Bhopal Sugar Industries Ltd. v. Sales Tax Officer, Bhopal, AIR 1977 SC 1275 it has been observed as under (At pages 1278-79): "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 word agent or agency is used or the words buyer or seller are used to describe the status of the parties concerned is not sufficient to lead to the irresistible inference that the parties did in fact intend that the said status would be conferred. Thus the mere formal description of a person as an agent 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. Thus the mere formal description of a person as an agent 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. "correspondence between the plaintiff and the defendants on the one hand and between defendants and the Andhra Pradesh Government has been placed on the record. On 31st July, 1965 the Director of Agriculture of Andhra Pradesh Government wrote a letter of therepresentative of the plaintiff in India with copy to the defendants. From this letter it is clear that the defendants offered to supply tractors to the Andhra Pradesh Government but the Government as per its practice desired to place an order on the manufacturers directly for the supply of the machinery. The Government therefore enquired from the plaintiff s representative in India what was the procedure for making such purchases. The plaintiff s representative in India by hisletter cited 9th August, 1965 informed the Director of Agriculture of Andhra Pradesh Government that the defendants were its exclusive agents for Andhra Pradesh, that the orders from a State Government should be placed direct with the agents. Accordingly the plaintiffs representative requested the Government to place order with the defendants. It. was also stated that the defendants as agents would specify all other conditions of the contract which would be acceptable to the plaintiff. From these two letters it is clear that the plaintiff s wanted to sell the machines to the Government through the defendants. On 14th August, 1965 the defendants wrote a letter to the plaintiff (Ex. P. 1) to confirm that they were entitled to 20 per cent commission on the transaction of sale. The defendants further requested the plaintiff to agree to supply a mobile workshop free of charge to the Government. On 17th November, 1965 the defendants wrote a letter (Ex. P. 2) informing the plaintiff that a contract had been signed with the Government. The defendants therefore confirmed for the supply of 23 tractors and other parts. The material part of this letter regarding payment and delivery reads as under: "terms and conditions: The letter of credit should be opened by cable within fifteen days from the date of receipt of SELLERS notification of readiness of the goods for shipment for 90% of the full amount of the equipment ready for shipment. The material part of this letter regarding payment and delivery reads as under: "terms and conditions: The letter of credit should be opened by cable within fifteen days from the date of receipt of SELLERS notification of readiness of the goods for shipment for 90% of the full amount of the equipment ready for shipment. The Letter of Credit should be valid for ninety days, 90% of the amount will be paid against the documents shown below and the remaining 10% will be paid within a month from the date of receipt of equipment at the work site". From this condition it is apparent that the Government was to open a letter of Credit for 90% of the full amount within 15 days of the receipt of the information that the goods were ready for shipment. The remaining 10 per cent was payable by the Government within one month of the receipt of the machinery. In the letter dated 18th June, 1966 (Ex. P. 6) to the plaintiff the defendants clarified that the Director of Agriculture of Andhra Pradesh Government would pay for the machinery i. e. the tractors as per details mentioned therein meaning thereby that the defendants were not to pay the price of the tractors themselves. On 17th October, 1966 a contract for the supply of tractors was entered into between the plaintiff and the defendants (Ex. P. 8) It is desirable to reproduce this Protocal in extenso: "protocol for 23 TG-90 Crawler Tractors for Director of Agriculture, Hyderabad. Present: Mr. M. Barkic, Mr. Sofrovisenc, Mr. Bazdaric, Mr. C. R. Dass and Mr. S. N. Goenka. 1. In accordance to the cable received from RUDNAP 23 TG-90 tractors for the Director of Agriculture, Hyderabad, are ready for shipment with Hyderaulic Clutch System. 2. RUDNAP wants increment in the L/c value due to devaluation which Eastern Associates Co. are arranging from the Director of Agriculture, Hyderabad and undertakes to arrange so. 3. RUDNAP have a supply list of spare parts for Rs. 52,000. 00 (pre-devaluation) in respect of items deleted by the Director of Agriculture and already handed over to RUDNAP by Eastern Associates Co. 4. Commission payable to Eastern Associates Co. on 23 tractors TG-90 is as per enclosed chart but this chart does not include any commission for Hydraulic Clutch extra charges for which Mr. 52,000. 00 (pre-devaluation) in respect of items deleted by the Director of Agriculture and already handed over to RUDNAP by Eastern Associates Co. 4. Commission payable to Eastern Associates Co. on 23 tractors TG-90 is as per enclosed chart but this chart does not include any commission for Hydraulic Clutch extra charges for which Mr. Barkic will take up the matter with RUDNAP and get it included therein. Spare parts commission had been indi- cated as 20% and Eastern Associates Co presses for higher rate. Mr. Barkic will take up the matter with RUDNAP 5. RUDNAP will prepare the invoices for Director of Agriculture, Hyderabad, at "brutto" values and remit the commission to us immediately the letter of credit is negotiated in Beograd. EASTERN ASSO- RUDNAP CIATES COY EXPORT-IMPORT sd/- sd/- "first para of the contract shows that the tractors were ready for shipment. Second para shows that the plaintiff wanted increase in the Letter of Credit on account of devaluation which the defendants were arranging from. the Government. Para 3 refers to the spare-parts. In para 4 it is agreed that the defendants would be paid commission at 20 per cent but the said commission was not payable for the extra charge on the Hydraulic Clutch. The last para. shows that at the plaintiff was to prepare the invoice in favour of the Director of Agriculture, Hyderabad and that the plaintiff was to remit the commission to the defendants immediately on negotiations of the letter of credit. According to this letter the price was payable by the Government to the plaintiff and the defendants were entitled to commission at 20 per cent from the plaintiff. On 26th December, 1966 the defendants in their letter (Ex. P. 12) to the plaintiff asked for remission of their commission. It is further stated that 50 per cent of the commission was with respect to sales and 50 per cent was with respect to servicing of the machines. The plaintiff in its letter dated 17th February, 1967 (Ex. P. 15) to the defendants gave the details of the sales and service commission payable to the defendants which amount was in fact remitted to the defendants. The plaintiff in its letter dated 17th February, 1967 (Ex. P. 15) to the defendants gave the details of the sales and service commission payable to the defendants which amount was in fact remitted to the defendants. This letter shows that payment on account of service charges was made in full while the commission on sales was made on the basis of the amount received by the plaintiff i. e. 90 per cent of the ex-factory value of the consignment. A total sum of Rs. 3,78,433. 59 as sales commission on the ex-factory value of the consignment at 10 per cent was due to the defendants but the plaintiff remitted only Rs. 3,02,744. 41. It is also mentioned that the balance of Rupees 75,689. 18 was payable on receipt of 10 per cent remaining amount from the Director of Agriculture, Andhra Pradesh Government. Thus this letter shows that the plaintiff received 90 per cent value of the machines from the Andhra Pradesh Government and thereafter remitted the commission due to the defendants. The defendants in their letter dated 8th May, 1967 (Ex, P. 16) informed the plaintiff that 23 tractors were delivered to the Director of Agriculture, Hyderabad on 29th April, 1967. ( 22 ) FROM these letters the irresistible conclusion is that the plaintiff delivered 23 tractors to the Andhra Pradesh Government and recovered 90% of its price against the letter of credit opened by the Andhra Pradesh Government in favour of the plaintiff. The defendants do not come in between. They did not receive any amount from the Andhra Pradesh Government. They only received commission from the plaintiff on the said transaction. The title to the goods was never transferred by the plaintiff to the defendants. In the absence of any agreement by the defendants to pay the price to the plaintiff and in the absence of transfer of title to the goods by the plaintiff to the defendants it cannot be said that the defendants were the purchasers of the said tractors. Learned counsel for the plaintiff refers to proceedings dated 15th June, 1966 (Ex. P. 3) held in the chamber ofthe Director of Agriculture, Andhra Pradesh Government wherein the representatives of the plaintiff and the defendants were present. These proceedings were signed on behalf of the Andhra Pradesh Government by its Director and by the defendants. Learned counsel for the plaintiff refers to proceedings dated 15th June, 1966 (Ex. P. 3) held in the chamber ofthe Director of Agriculture, Andhra Pradesh Government wherein the representatives of the plaintiff and the defendants were present. These proceedings were signed on behalf of the Andhra Pradesh Government by its Director and by the defendants. The defendants have been described as sellers while the Andhra Pradesh Government has been described as buyer. Learned counsel submits that as the defendants described themselves as sellers to the Andhra Pradesh Government, they would be deemed to be the purchasers of the said tractors from the plaintiff. There is a list of spares (Ex. P. 4) which the plaintiff had agreed to supply and the defendants described themselves as sellers and the Andhra Pradesh Govt. as buyers. There is another sheet (Ex P. 5) giving specification of the machinery wherein also the defendants were also described as sellers and Andhra Pradesh Government as buyers. From the description of the defendants as sellers in these documents entered into with the Andhra Pradesh Government, it cannot be said that they were the purchasers of the tractors from the plaintiff. ( 23 ) LEARNED counsel for the plaintiff then refers to a letter dated 10th Dec. 1969, (Ex. P. 123) from the defendants to the plaintiff. This letter is in reply to the plaintiff s letter dated 6th Dec. 1969. The plaintiff in its letter dated 5th Dec. 1969 had demanded 10 per cent of the balance price of the machinery and the defendants in reply after giving an account have stated that nothing was due to the plaintiff and on the contrary a sum of Rs. 2,47,460. 73 was due to them from the plaintiff. In this letter also the defendants have referred to their 20 per cent commission. This letter merely by a claim of the defendants against the plaintiff, would not mean that the defendants were the purchasers of the machinery. This letter refers to the various claims made by the Andhra Pradesh Government. The plaintiff sent a letter dated 17th Dec. 1969 in reply to the defendants letter dt. 10th Dec. 1969 wherein the plaintiff itself has mentioned that the relationship between the plaintiff and the defendants was that of a Principal and Agent. The defendants in their letter dt. 23rd Dec. 1969 (Ex. The plaintiff sent a letter dated 17th Dec. 1969 in reply to the defendants letter dt. 10th Dec. 1969 wherein the plaintiff itself has mentioned that the relationship between the plaintiff and the defendants was that of a Principal and Agent. The defendants in their letter dt. 23rd Dec. 1969 (Ex. P. 125) to the plaintiff informed that they would not entertain any further correspondence on the subject. ( 24 ) CORRESPONDENCE above referred. shows that the plaintiff had agreed to deliver the tractors to the Andhra Pradesh Government against 90 per cent payment by Letter of Credit opened by the Government in favour of the plaintiff. The defendants were paid their sales commission at 10 per cent as well as service commission at 10 per cent. The title to the goods was never transferred by the plaintiff to the defendants. The defendants had never agreed to pay any price. They never paid any amount to the plaintiff. Thus according to S. 4 of the Sale of Goods Act there was not transfer of title to goods to the defendants and there was no agreement to pay any price by the defendants to the plaintiff. It cannot be said that there was a contract of sale between the plaintiff and the defendants. I am therefore of the opinion that the defendants acted as agents and not as purchasers in the transaction of these 23 tractors supplied by the plaintiff to the Andhra Pradesh Government. ( 25 ) DURING the course of arguments the defendants have referred to the letter dt. 31st July, 1965 from Andhra Pradesh Government to the plaintiff and also a letter dt. 9th Aug. 1965 from the plaintiff to the Andhra Pradesh Government besides a letter dt. 17th Dec, 1969 by the plaintiff to the defendants. These three letters were filed by the plaintiff. These documents were not proved by the plaintiff but the same are available on record. I have taken into consideration these three letters in coming to the above conclusion that it was not a transaction of sale between the parties. Learned counsel for the plaintiff submits that these are unproved documents and therefore cannot be looked into. Learned counsel for the defendants on the other hand submits that these are documents produced by the plaintiff and therefore no evidence is required to prove these documents against the plaintiff. Learned counsel for the plaintiff submits that these are unproved documents and therefore cannot be looked into. Learned counsel for the defendants on the other hand submits that these are documents produced by the plaintiff and therefore no evidence is required to prove these documents against the plaintiff. These documents have been filed by the plaintiff and they are an important link in the correspondence between the parties. These documents can be looked into and the defendants are entitled to take advantage of these letters against the plaintiff. In the first letter dt. 31st July, 1965 the Andhra Pradesh Government had sought information from the plaintiff with the intention of placing an order for the supply of tractors with the manufacturer i. e. the plaintiff directly, In the second letter dt. 9th Aug. 1965 the plaintiff informed the Andhra Pradesh Government that the defendants were their exclusive agents and that the order should be placed by it with the defendants. The third letter dt. 17th Dec, 1969 from the plaintiff to the defendants is in reply to the defendants letter dt. 10th Dec, 1969 (Ex, P. 123), In the last letter the plaintiff has observed,, "we regret to say that your attitude i? not at all in line with a pleasant and traditional relation that should exist between a Principal and Agent". I am of the opinion that a letter filed by a party may be looked into without any further proof at the instance of the opposite party. I, therefore, hold that the defendants were acting as agents and were not the purchasers of these tractors. Both issues are decided accordingly. ( 26 ) ISSUE NOS. 9 and 10: 9. Whether the plaintiff was required to provide after sales service in respect of tractors? 10. If answer to issue No. 9 is in the affirmative, whether the plaintiff has performed its obligations in respect of after sales service? As already discussed under Issue Nos. 7 and 8 the plaintiff acted as Principal while the defendants acted as its agent in this transaction of sale with Andhra Pradesh Government. 10. If answer to issue No. 9 is in the affirmative, whether the plaintiff has performed its obligations in respect of after sales service? As already discussed under Issue Nos. 7 and 8 the plaintiff acted as Principal while the defendants acted as its agent in this transaction of sale with Andhra Pradesh Government. The plaintiff had agreed to pay 10 per cent commission on ex-factory value of the consignment to the defendants and the remaining 10 per cent was agreed to be paid on account of servicing of the 23 tractors for a period of three years from the date of delivery to the Andhra Pradesh Government. It is not disputed that 90 per cent amount of the ex- factory value of the tractors has been received by the plaintiff. In its letter dt. 17th Feb. 1977 (Ex. P. 15) the plaintiff remitted to the defendants a total commission of Rs. 6,81,178. 00. This amount included 10 per centtowards servicing i. e. Rs. 3,78,43359. This 10 per cent has been paid on the total ex-factory value of the 23 tractors. It was the duty of the defendants to provide servicing for three years after delivery. Thus there was no duty upon the plaintiff to provide for servicing. The amount for servicing has already been paid. It was the responsibility of the defendants to provide servicing of the tractors after sale. It is, therefore, held that the plaintiff was not required to provide after sales service. It was the responsibility of the defendants. The plaintiff has alleged that the defendants did not provide servicing to the delivered tractors and therefore the Andhra Pradesh Government did not pay the remaining 10 per cent of the ex-factory value of the tractors. I, therefore, hold that the plaintiff was not required to provide after sales service to the Andhra Pradesh Government. Issues 9 and 10 stand decided accordingly. ( 27 ) ISSUE No. 11 "11. Whether the plaintiff supplied defective machinery, if so, what was the defect and what is its effect on the suit?"23 tractors were supplied to the Andhra Pradesh Government through the defendants on 29th April 1967. It is in evidence on behalf of the defendants that there were defects but what is the nature of those defects is not known. Whether the plaintiff supplied defective machinery, if so, what was the defect and what is its effect on the suit?"23 tractors were supplied to the Andhra Pradesh Government through the defendants on 29th April 1967. It is in evidence on behalf of the defendants that there were defects but what is the nature of those defects is not known. The Andhra Pradesh Government being the purchaser does not appear to have made any complaint either to the defendants or to the plaintiff. There is nothing on the record to that effect and no correspondence on this subject from the Andhra Pradesh Government either to the defendants or to the plaintiff has been brought to my notice. I, therefore, hold that there was no defect in the tractors supplied by the plaintiff. ( 28 ) ISSUE NOS. 12 and 13 : "12. Whether there has been a valid contract between the plaintiff and defendants in respect of supply of dumpers, if so, what were its terms, nature and effect? 13. Whether the plaintiff issued invalid invoice contrary to the instructions of the defendants and contrary to the import licence and if so whether the dumpers could not be cleared on this account?"the defendants wanted to be appointed as distributors for the Dumpers. They wanted to import two dumpers for demonstration and test purposes. They arranged for the import licence. An agreement dt. 7th Jan. 1967 was entered into between the plaintiffs and the defendants (Ex. P. 134 ). They agreed that the two dumpers would be kept in India for four months and thereafter to be sold to actual users. In the alternative they agreed to re-export them at their expense. By letter dt. 15th May, 1967 (Ex. P. 136) the defendants informed that they had been granted Custom Control Copy of the Import Licence dt. 5th May, 1967 for the import of two dumpers D-4 Model. The defendants in their letter dt. 8th Aug. 1967 (Ex, P. 139) undertook to sell the dumpers within six months of arrival. They delivered a cheque for Rs. 1,11,600. 00 covering C. I. F. price of the dumpers less 10 per cent discount to be encashed by the plaintiff after the grant of permission by the Government for sale of dumpers. The defendants in their letter dt. 20th Sept. 1967 (Ex. P. 140) acknowledged the receipt of six copies of the invoice dt. 1,11,600. 00 covering C. I. F. price of the dumpers less 10 per cent discount to be encashed by the plaintiff after the grant of permission by the Government for sale of dumpers. The defendants in their letter dt. 20th Sept. 1967 (Ex. P. 140) acknowledged the receipt of six copies of the invoice dt. 14th Sept. 1967. four copies of the bill of lading No. 93 dt. 2nd Sept. 1967 and the packing list relating to two dumpers in suit. In their letter dt. llth April 1968 (Ex. P. 145) the defendants mentioned that there was difficulty in getting the dumpers cleared from the custom. On 17th April 1968 the defendants wrote to the plaintiff (Ex. P. 146) that they had given instructions to send back the dumpers to Yugoslavia meaning thereby that the defendants never cleared the dumpers and failed to perform their part of duty. It was their responsibility to have obtained delivery of the dumpers and ought to have returned the dumpers after demonstration or to have sold the same after obtaining necessary permission. The plaintiff demanded the value of the dumpers and the defendants in. their letter dt. 21st May, 1968 (Ex. P. 147) requested it to wait to enable them to take up I he matter with the Port Trust authorities Bombay for clearance and putting the dumpers to test. In their letter dt. 12th June, 1968 (Ex. P. 148) they informed the plaintiff that the matter had not been settled with Port Commissioner, Bombay. ( 29 ) THE case of the plaintiff is that it supplied two dumpers to the defendants and sent the bill of lading along with invoice and the packing list. These documents were admittedly received by the defendants. The defendants for one reason or the other did not take delivery from the port authorities. The defendants also did not send back the dumpers to the plaintiff. The bill of lading and other documents received by them were not returned to the plaintiff. Bill of lading is a document of title. If the defendants were not interested in keeping the dumpers with them they ought to have made arrangements for the re- export of two dumpers. They ought to have taken some action. They however, did not bother at all. Bill of lading is a document of title. If the defendants were not interested in keeping the dumpers with them they ought to have made arrangements for the re- export of two dumpers. They ought to have taken some action. They however, did not bother at all. Bill of lading is a document of title to the goods according to the definition in S. 2 (4) of the Sale of Goods Act. The Bill of lading transfers goods covered by it. The Bill of lading was delivered by the plaintiff to the defendants. In other words, the property in the goods i. e. , the two dumpers passed to the defendants. The defendants neither paid price nor returned the goods. The demandants are therefore liable to pay the value of these two dumpers. The next question however, is whether the invoice issued by the plaintiff relating to these dumpers was contrary to any instructions of the defendants or contrary to the terms of import licence. This is only a plea of the defendants but no material has been placed on the record to show that the invoice issued by the plaintiff was contrary to the instructions of the defendants or it was contrary to import licence. Neither any copy of the invoice nor copy of the import licence has been placed on record in support of these issues. According to the plaintiff the value of the two dumpers is Rs. 1,21,800. 00. They are entitled to the price of these two dumpers. I, thus hold that the plaintiff is entitled to the price of the dumpers i. e. Rs. 1,21,800. 00 if the suit is within time. ( 30 ) ISSUE No. 15 "15. Whether the plaintiff is entitled to any interest and if so, at what, rate? The plaintiff has claimed interest on the price of 23 tractors as well as two dumpers. As regards tractors I have already held that there was no transaction of sale by the plaintiff to the defendants. The plaintiff therefore is neither entitled to the price nor any interest relating to tractors claimed by them. As regards two dumpers the but of lading was admittedly delivered to the defendants along with invoice. Bill. of lading is a document of title, under S. 2 (4) of the Sale of Goods Act, 1930. The plaintiff therefore is neither entitled to the price nor any interest relating to tractors claimed by them. As regards two dumpers the but of lading was admittedly delivered to the defendants along with invoice. Bill. of lading is a document of title, under S. 2 (4) of the Sale of Goods Act, 1930. Under S. 61 of the Sale of Goods Act, 1930 the plaintiff is entitled to interest on the price of two dumpers. The plaintiff has claimed interest @ 6 per cent per annum from the date of sale till the date of suit amounting to Rs. 26,187. 00. I, therefore, hold, that the plaintiff is entitled to interest @ 6% on the price of two dumpers from the date of delivery of bill of lading to the defendants till the date of payment if the claim is within time. ( 31 ) ISSUE No. 2 : "2. Whether the suit iand barred by time?"the plaintiff has claimed the price of tractors as well as dumpers. As regards the price of tractors the plaintiff relies upon the letter dt. 10th Dec. 1969 (Ex. P. 123) by the defendants to the plaintiff. I have already held that the defendants were not the purchasers. Letter dt. 10th Dec. 1969 is not an acknowledgment of their liability by the defendants. In this letter, they denied, the claim of the plaintiff but in the alternative they submitted that even if the plaintiff s claim is admitted the amount remains due to the defendants from the plaintiff; The defendants by this letter never admitted their liability, to pay any amount to the plaintiff and therefore the letter dt. 19th Dec. 1969 (Ex. P. 123) is not an acknowledgment within the meaning of S. 19 of the Limitation Act. ( 32 ) THE dumpers were shipped under the Bill of lading No. 93 dt. 2nd Sent. , 1967. The invoice" is dt. 14th Sept. 1967. The invoice and the bill of lading were sent by the plaintiff to the defendants which fact was acknowledged by the defendants on 20th Sept. 1967. As soon as the bill of lading was received by the defendants they were entitled to take delivery. Delivery of bill of lading amounts to transfer of title to goods to the defendants. In other words, the goods stood transferred to the defendants on or about 20th Sept. 1967. 1967. As soon as the bill of lading was received by the defendants they were entitled to take delivery. Delivery of bill of lading amounts to transfer of title to goods to the defendants. In other words, the goods stood transferred to the defendants on or about 20th Sept. 1967. The present suit however for recovery of the price of these dumpers was filed on 19th April 1971. The suit for the price of the goods sold and delivered is to be filed within three years from the date of delivery. Bill of lading, as already stated, was received by the defendants before 20th Sept. 1967. The present suit therefore for the price of dumpers is barred by time. ( 33 ) ISSUE No. 3 : "3. Whether the suit is bad for misjoinder of causes of action?"this issue was not pressed by the learned counsel for the defendants, ( 34 ) ISSUE No. 4 "4. Whether The plaint is lacking in material particulars and if so with what effect?"a reading of the plaint shows that it contains all the relevant facts and particulars required for the decision of the suit. The issue has not been seriously pressed by the learned counsel for the defendants. The Issue is decided accordingly against the defendants. ( 35 ) ISSUE No. 5 "5. Whether the suit as laid is not maintainable (vis-a-vis preliminary objection No. 9 in the written statement)?"this issue is based on the pleadings contained in para 9 of the written statement. This para reads as under: "9. The suit in any way ought to be for accounts. The plaintiff and defendants have been in the position of principal and the agents and considerable amount is due from the former to the latter. The defendants therefore pray that the present suit as laid for recovery of amount is not maintainable". It has been held under Issue Nos. 7 and, 8 that the relationship between the plaintiff and the defendants is that of the Principal and Agent. The plaintiff has not filed any suit for accounts against the defendants. There is no plea by the plaintiff that the defendants received the remaining 10 per cent value of the tractors from the Andhra Pradesh Government. In the absence of pleadings no relief can be granted to the plaintiff. The plaintiff has not filed any suit for accounts against the defendants. There is no plea by the plaintiff that the defendants received the remaining 10 per cent value of the tractors from the Andhra Pradesh Government. In the absence of pleadings no relief can be granted to the plaintiff. The plaintiff could have filed a suit for accounts but no fou ndation has been laid in the pleadings and there is no material on record to hold that thede-s fendants are liable to render any accounts to the plaintiff. There is no defect in the filing of the suit. The suit cannot be held to be not maintainable. Issue is decided accordingly. ( 36 ) ISSUE No. 6 : "6. Whether proper court-fees has not been paid?"this issue was framed on 1st Sept. . 1971. But on 4th Aug. 1972 learned counsel for the defendants did not press and therefore this court had decided this issue against the defendants. ( 37 ) ISSUE No, 14 "14. To what amount is the plaintiff entitled?"the plaintiff s suit for the price of tractors is not maintainable as there was no transaction of sale between the plaintiff and the defendants. The plaintiff is not entitled to any amount on account of the remaining price of the tractors. ( 38 ) AS regards the price of the dumpers the plaintiff is entitled to Rupees. 1,21,800. 00 and interest @ 6% per annum but the plaintiff s claim is barred by time and therefore it is held that the plaintiff is not entitled to any amount from the defendants. ( 39 ) ISSUE No. ,16 RELIEF: The suit of the plaintiff regarding the price of 23 tractors and Interest thereon is dismissed as there was no transaction of sale between the plaintiff and the defendants. The suit of the plaintiff regarding the price of two dumpers and interest is dismissed as the plaintiff s claim is barred by time. In the circumstances of the case the parties are left to bear their own costs.