Judgment : The unsuccessful defendant in O.S.No.3 of 2006, before the Principal Sub Court, Tirunelveli and in A.S.No.2 of 2007, before the 1st Additional District Court, Tirunelveli, directed this Second Appeal. 2. The plaintiff instituted the suit in O.S.No.3 of 2006 for the recovery of balance price of the milk supplied to the defendant. The accounts were struck as on 09.12.2000, deducting the total security Deposit amount of Rs.26,550/- from the accrued balance of Rs.1,48,439.90. The balance of Rs.1,19,889.90 is the claim amount. Prior to the institution, there were exchange of notices and replies. 3. The suit has been resisted by the defendant by filing written statement. The principal defense is that the dues as on 09.12.2000 were settled and balance of Rs.18,420/- was cleared by way of cheque and the suit is barred by time. 4. The trial Court framed issues and tried the suit. On factual aspects it was held that the defendant is liable to pay the suit claim. On legal aspect regarding Limitation Act, it had arrived at a conclusion that the defendant, namely, Madura Coats purchased the milk from the society for credit on behalf of the canteen. Thus, it has become an agent for the principal. In the circumstances, the dispute has arisen as between the plaintiff/ principal and defendant/agent. It would be a dispute falling under Section 90 of the Tamil Nadu Co-operative Societies Act and as per this sub section (9), there is a period of limitation of six years. Thus, the suit is not barred by limitation. 5. In the circumstances, the defendant has carried the matter further before the next appellate Court, namely, I Additional District Judge, Tirunelveli, in A.S.No.2 of 2007 and the matter was reheard before the said appellate Judge. Almost on the same reasons as arrived at by the trial Court, the first appellate Court dismissed the appeal. 6. Against the said concurrent findings, the defendant has directed this Second Appeal. 7. At the time of admission of the Second Appeal, the then learned Brother formulated the following substantial questions of law: “1. Whether the courts below committed an error in not dismissing the suit as barred by limitation, as the claim relates to the period prior to 19.12.2000, whereas, the suit was filed in August, 2005? 2. 7. At the time of admission of the Second Appeal, the then learned Brother formulated the following substantial questions of law: “1. Whether the courts below committed an error in not dismissing the suit as barred by limitation, as the claim relates to the period prior to 19.12.2000, whereas, the suit was filed in August, 2005? 2. Whether the courts below committed an error in law in inferring a relationship of principal and agent between the respondent/plaintiff and appellant/defendant in the absence of any pleading to that effect?” 8. The learned Senior Counsel appearing for the appellant would submit that he is quite aware of the principle that under Section 100 C.P.C. normally this Court will not interfere when concurrent findings have been recorded on factual aspects by the trial Court as well as the first appellate Court. However, there are certain exceptional circumstances, under which even as against such concurrent findings, this Court can interfere under Section 100 C.P.C. In support of his this thesis, the learned Senior Counsel would fall back on HERO VINOTH (MINOR) VS. SESHAMMAL (2006 (4) CTC 79 (SC)). 9. The learned Senior Counsel for the appellant also would contend that the defendant Madura Coats is not an agent for plaintiff towards the canteen/3rd party. Even to invoke law of agency and fastening liability on the defendant, stamping him as an agent, there must be pleading to that effect in the plaint. However, the plaint is completely bereft of such a plea. 10. Assailing the case of the plaintiff from another angle, the learned Senior Counsel also would contend that even for an argument sake, if a relationship of agency has been imputed as against the defendant on the anvil of Section 9 of the Tamil Nadu Co-operative Societies Act, 1983, still it is a slate claim because six years had already gone, by the time when the suit is filed. In this respect, the learned Senior Counsel will draw inspiration from the decision of this Court rendered by a learned Single Judge in S.A.No.24 of 2008 (KOTTAISAMY (DIED) AND OTHERS VS. TIRUNELVELI DISTRICT CO-OPERATIVE MILK PRODUCERS UNION LTD. (unreported)). 11. On the other hand, it has been contended by the learned counsel for the respondent/plaintiff that the law of agency is creation of law of contract. It is a form of special contract. TIRUNELVELI DISTRICT CO-OPERATIVE MILK PRODUCERS UNION LTD. (unreported)). 11. On the other hand, it has been contended by the learned counsel for the respondent/plaintiff that the law of agency is creation of law of contract. It is a form of special contract. The doctrine of agency in the Indian Contracts Act is in Section 182. It is not there in all and every case a relationship of agency could be born only on the basis of a written document. The relationship of agency could also be inferred from the circumstances/conduct/ contract between the parties. 12. The learned counsel for the respondent would contend that it is not the nomenclature, substance matters. Some time no-menting of the term 'agent' as such may not matters much when such a conduct is established from the relationship exists between the parties. In this respect, the learned counsel for the appellant would cite CHAIRMAN, LIFE INSURANCE VS. RAJIV KUMAR BHASKAR (APPEAL (CIVIL) NO.6028 OF 2002). Thus, the concurrent findings rendered by the Courts below may not be upset. 13. We have anxiously considered the postmortem done on the judgments of the Court below by both the counsels, perused the records of the case and the decisions cited at the bar. 14. The appeal remedy is a creation of statute. The appeals are heard by hierarchy of Courts devised under the Code of Civil Procedure. In a way it is also a kind of judicial review. But, the appeal should be on well defined grounds as well as, as provided in the relevant provisions of law. 15. There is distinction between question of law and substantial question of law. There is also accepted principle that as against the concurrent findings rendered by subordinate Courts, the higher Courts normally would not interfere. However, under certain circumstances, even against concurrent findings, the higher Court could interfere under Section 100 Cr.P.C. 16. In this connection, in HERO VINOTH (supra), the Hon'ble Apex Court laid down the following guidance: “24. The principles relating to Section 100, C.P.C., may be summarized thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involved a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (I) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to 'decisions based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” 17. Admittedly, the supply of milk to the defendant and payment thereof and dues were struck as on 09.12.2000 have take place. To recover the same the suit was presented on 11.08.2005. 18. Admittedly, the supply of milk to the defendant and payment thereof and dues were struck as on 09.12.2000 have take place. To recover the same the suit was presented on 11.08.2005. 18. As per Article 15 of the Limitation Act, 1963 for the recovery of price of the goods supplied the period prescribed is 3 years from the date when the credit expires. Even from 09.12.2000, the suit was filed beyond three years. So, as per Article 15 of Limitation Act, 1963, the suit is barred by time. 19. However, it has been contended by the plaintiff that since the plaintiff is an agent, the dispute touching upon the business of the Society between the principal and the agent would fall under Section 90 of the Tamil Nadu Cooperative Societies Act, 1983 and under Section 90(9) of the said Act, a period of six years has been prescribed. Therefore, the suit is in time. 20. Now, the plaintiff proceeds, treating the defendant as its agent. 21. When one person acts on behalf of the other or does an act on behalf of the other, he becomes an 'agent' for whom the act was done, whom he has represented is 'the principal'. (See Section 182, Indian Contract Act). An Agent cannot be sued personally. However, if there is a contract to the contrary, he can be sued and he can sue. (See Section 230, Indian Contract Act). 22. In civil cases, the pleadings in the plaint, written statement and reply statement, further statement assumes signal importance. The basic foundation of a case, on what footing the case has been instituted, all springs from the plaint pleadings. Absence of plea under certain circumstances will prove fatal to the case of the plaintiff. Equally, it is applicable to the defendant, when he omits to state/plead his case in his written statement. 23. When the plaintiff either as a principal or as a third party wish to sue the agent personally, there must be pleading to that effect in the plaint. Plaintiff must plead in the plaint as to how the defendant as an agent is liable to the plaintiff. How the contractual capacity of agent has been imputed as against the defendant has to be pleaded in the plaint. The terms and conditions of the agency if expressed in documents have to be pleaded. Plaintiff must plead in the plaint as to how the defendant as an agent is liable to the plaintiff. How the contractual capacity of agent has been imputed as against the defendant has to be pleaded in the plaint. The terms and conditions of the agency if expressed in documents have to be pleaded. How the relationship of a principal and agency has been brought into existence as against the defendant as plaintiff's agent should be clearly stated in the plaint. 24. Now, keeping the above in our mind, if we peruse the plaint pleadings in the instant case, the plaint proceeds on the footing that there was purchase of milk from the plaintiff by the defendant regularly and there was periodical payment. Of course, in paragraph 4 there is a phrase that the milk has been utilized in the canteen, such statement in the plaint as to such utilization of the milk by the canteen is not sufficient enough to plead the existence of a relationship of principal and agent as between the plaintiff and defendant for a third party, namely, the canteen, in the defendant - Mill. Actually the whole reading of the plaint and the exchange of notices between the plaintiff and the defendant would go to show that the business dealings involving supply of milk and payment thereof were only between the plaintiff and the defendant. Of course, actual usage of the word 'agent' always not necessary. It depends upon the facts and circumstances of each case. But creating a relationship of a principal and the agent cannot be a matter of assumption. Even if one nerves too much in reading the plaint in this case as many times as possible the existence of a relationship of principal and agent as between the plaintiff and defendant could not be gauged from the plaint pleadings. 25. The very consideration of the application of Section 90 of the Tamil Nadu Cooperative Societies Act, 1983 would arises only when the case is proceeded as against the defendant as an agent. We have considered elaborately that the plaintiff has not proceeded on that basis. In such circumstances, a consideration as to the application of the provisions of Section 90 of the Tamil Nadu Cooperative Societies Act, 1893 to the defendant becomes purely academic. 26. We have considered elaborately that the plaintiff has not proceeded on that basis. In such circumstances, a consideration as to the application of the provisions of Section 90 of the Tamil Nadu Cooperative Societies Act, 1893 to the defendant becomes purely academic. 26. Now, in the complete absence of the required plea for the relationship of principal and agent in the plaint, both the Courts below have completely proceeded on the wrong footing as against the settled position of law and recorded the concurrent finding. There is manifest error apparent on the face of the record. Such a wrong finding has been rendered by the Courts below. In such circumstances, this Court has to interfere and correct the mistake of law. Thus, this case falls under the exceptional circumstances pointed out by the Hon'ble Apex Court in HERO VINOTH (supra). 27. This case since falls under Article 15 of the Limitation Act and the suit has been filed beyond three years, the suit is barred by time. 28. Thus, we answer the substantial questions of law as against the respondent. 29. Ultimately, this Second Appeal succeeds. The decree and judgment of the first appellate Court/I Additional District Court, Tirunelveli in A.S.No.2 of 2007 and the decree and judgment of the trial Court/Principal Sub Court, Tirunelveli in O.S.No.3 of 2006 are set aside. The suit is dismissed. In the facts and circumstances, the parties are left to bear their respective costs in this Second Appeal.