Appeal No 164 of 1964
Appeal from the judgment and decree dated December 15 1959 of the Madras High Court in OS Appeal No 22 of 1955
P Ram Reddy and A V Velayudhan Nair for the appellant
K R Chaudhuri and K Rajendra Choudhury for the respondent
The Judgment of the Court was delivered by Ramaswami J
This appeal is brought against the judgment of the High Court of Madras dated December 15 1959 in OS Appeal No 22 of 1955
The respondent was a trader at Madras in hides and skins
The appellant was a firm Gordon Woodroffe and Company Madras Limited doing business among other things as exporters of hides and skins
For the period of 8 months commencing from January 1949 there were as many as 101 contracts entered into between the appellant and the respondent
The case of the respondent was that he entered into an agreement with the appellant to act as agents for shipping the goods hides and skins to United Kingdom and for finding purchasers there
It is alleged that the appellant used to make payment to the respondent in respect of the goods sent to it for shipment in the nature of advances and he 3 used to set off these advances when payment was made to the respondent after the goods were shipped
The respondent will hereinafter be referred to as the plaintiff and the appellant as the defendants
The plaintiff tentatively claimed a sum of Rs 56564and odd as due to him as balance of the price of the goods and a further sum of Rs 40275 as representing the loss sustained by him by reason of the defendants  conduct in not shipping his goods under the Shaik mark
The plaintiff accordingly prayed that an account should be taken of the dealings between the parties for the period in question
The defendants contested the suit on the ground that it was not an agent of the plaintiff but it purchased hides from the plaintiff for export and for resale in the United Kingdom
The case of the defendants was that there was an outright purchase of the goods from the plaintiff for the purpose of resale in the United Kingdom
The defendants also contended that a sum of Rs 4351  and odd was due to it from the plaintiff and it prayed for a decree against the plaintiff for that amount by way of counter claim
The trial Judge held by his judgment dated May 6 1954 that the defendants were only purchasers of the goods from the plaintiff and the idea of agency was quite inconsistent with the nature of the transactions between the parties
The trial Judge came to the conclusion that the plaintiff was bound by the statements of account rendered by the defendants from time to time
After giving an opportunity to the parties to produce further evidence the trial Judge held that since there was no fraud the accounts could not be reopened and the claim of the plaintiff with regard to Rs 157 in respect of the marine insurance alone was sustainable
The trial Judge accordingly dismissed the suit and decreed that counter claim of the defendants after deducting the said sum of Rs 157 
The plaintiff preferred an appeal to the High Court of Madras under the Letters Patent
By its judgment dated December 15 1959 the High Court reversed the decision of the trial Judge and held that the defendants acted as del credere agents of the plaintiff for effecting the sale of the plaintiff s goods in the United Kingdom
On this basis the High Court decreed the plaintiff s suit and directed the taking of accounts as prayed for from the defendants though in respect of some of the items the claim of the plaintiff was negatived
The High Court also held that the plaintiff was liable to pay to the defendants the amount claimed by them by way of counter claim
The first question presented for determination in this case is whether the defendants were acting as del credere agents of the plaintiff or whether the defendants were outright purchasers of the goods supplied to them by the plaintiff
In the approach to this question it is necessary to notice the distinction between a contract of sale and a contract of agency
The essence of sale is the transfer of the title to the goods for price paid or to be paid
The transferee in such case becomes liable to the transferor of the goods 4 as a debtor for the price to be paid and not as agent for the proceeds of the sale
On the other hand 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 who is therefore liable to account for the proceeds
The true legal relationship between the parties in the present case has therefore to be inferred from the nature of the contract its terms and conditions and the nature of respective obligations undertaken by the parties
It is necessary at this stage to set out briefly the course of the dealings between the parties which has been summarised by the High Court as follows The plaintiff used to purchase tanned hides of all sorts in Periamet Madras and in his godown assort them according to quality pack them into bales and mark them with his mark viz Shaik or section M A Mark
Then the bales would be delivered into the defendants  godown where the bales would be opened and re assorted so as to conform to London specification and standard
In the process of putting the goods into that shape there used to be necessity for the defendants to cut and trim the pieces and sometimes call on the plaintiff for replacement of the pieces which fell below the standard
Thereafter the defendants used to re pack them into bales each weighing 600 pounds and then ship the goods themselves as shippers and obtain the necessary shipping documents on the basis of cif contracts
The goods would be shipped to the defendants  London Office where they were sold to London purchasers
All the expenses incurred in connection with the goods prior to shipment such as carriage trimming and assortment in the defendants  godown were all to be borne by the plaintiffs
So also expense in connection with the shipment such as freight insurance short weight etc were all to be home by the plaintiff
After the goods were shipped and as soon as the shipping documents were got ready
the price of the goods was calculated at the price fixed in the contract notes and after deducting the expenses and the advances with interest thereon the balance if any was paid to the plaintiff either by cheque or by credit being given in his accounts
For every shipment a contract note was being sent by the defendants to the plaintiff
So also a statement of account with a covering letter as well as a cheque for the balance found due to the plaintiff were being sent to the plaintiff from time to time
In all there were 101 contract forms and several statements of accounts sent to the plaintiff 5 in respect of the shippers
To none of those contracts or statements of account did the plaintiff raise any objection at any time
 The question whether the defendants took delivery of the plaintiff s goods as agents for sale or whether they purchased the goods outright must largely depend upon the terms of the contract of which a sample is exhibit P 1
All the 101 contracts were prepared in the same printed form
Exhibit P 1 is the contract dated January 21 1949
It is in the form of a letter sent by the defendants to the plaintiff
It opens with the sentence We confirm buying from you for resale the following subject to UK Import Licence
Then follows a description of the goods giving the number of bales the average weight and range the assortment and the price per lb
in pennies
The price quoted is said to be cif
less 21 per cent
The goods were already shipped by the ss City of Florence 
The seller is said to be liable to pay brokerage at the rate of one pie per lb
Then follow the terms of the contract which are to the following effect  Landed weight to be accepted payment on presentation of documents in order
It is understood that the above goods are for re sale in United Kingdom
You are responsible irrespective of any inspection by us in Madras for selection and quality of the goods at destination where inspection and acceptance thereof will be made by our agents or the ultimate buyers
In the event of any dispute or claim in respect of goods covered by this contract failing amicable settlement with buyers such claim is to be submitted to arbitration according to the custom of the trade in the United Kingdom and the result of such settlement or arbitration is binding on you
We have a charge or lien on all goods covered by this contract for all moneys advanced by us including expenses incurred and interest thereon
Insurance through Gordon Woodroffe Company Madras Limited
Time is an essence of the contract
 In the first place it is important to notice that the contract in the opening portion specifically makes a mention of the fact that the defendants were buying the goods for resale and in the paragraph containing the terms of the contract it is reiterated that the goods were intended for resale in the United Kingdom
On the face of it therefore the contract is clearly not one of agency for sale but it reads as an agreement of sale
If the defendants were intended to be constituted as the agents for sale the terms of the contract would have been entirely different
Another important feature in this case is that there is a definite price fixed in the contract for the plaintiff s goods
According to the plaintiff the rates fixed in the contract were the ones at which the goods were sold to London 6 purchaser and not a different rate and the defendants were agents who were obtaining for him only the price at which the goods were sold at London
It is true that the defendants admit that before fixing the price as between themselves and the plaintiff they used to ascertain the London price by cable
It is also true that the plaintiff was debited in the statement of account with the expenses of the cable
Even so if the defendants were simply acting as agents for the sale there was no need at all to fix the price in the contract as between them and the plaintiff
It was contended for the plaintiff that according to the contracts the prices fixed are cif
less 2 12 per cent and discount of 21 per cent was the commission for the defendants as agents
There is no use of the word  commission in the contracts and we see no reason to hold that 2 12 per cent should be taken as commission and not as a margin of profit
The important point is that if the contract was one of agency there was no need to mention the price at all as between the plaintiff and the defendants
It may be that in most cases the prices which the defendants obtained from the London purchasers were the same as the prices stipulated in the contracts with the plaintiff but the fact remains that they obtained 21 per cent discount on the sale price that is to say they purchased the goods from the plaintiff 2 12 per cent less and sold them to their London purchasers at the full price so that 2 12 per cent was their margin of profit
It is possible that sometimes they sold the goods to the London purchasers at a higher price in which case they would be entitled to the difference in prices as a profit in addition to the 2 12 per cent which they got from the plaintiff
In all there are 101 contract forms and in accordance with these contract forms statements of account were furnished by the defendants to the plaintiff
Exhibit P 1A is the statement of account dated January 25 1949 based upon the contract note exhibit P 1
It is true that the plaintiff did not sign any one of the contract forms but all of them were received by the plaintiff without any objection
Statements of account were Prepared in terms of these contracts and the plaintiff was receiving moneys from the defendants on the basis of these contracts and according to the price fixed therein
He did not at any time raise the slightest protest against the terms of the contract or against the price fixed therein
On the other hand he received all the contract forms and statements of account as well as the moneys sent to him by cheque
The plaintiff cannot therefore be heard to say that he was not a consenting party to the contracts
There is also the circumstance that before the goods were shipped to London they were subjected to a process of trimming and reassortment in the godowns of the defendants with a view to make them conform to London standard and selection
In that process the defendants often called upon the plaintiff to replace the 7 pieces found defective
If the defendants were merely acting as agents the process of trimming and reassorting in the godowns to make the goods conform to London standards and specifications will be unnecessary for in that case the defendants were merely bound to ship the goods as they were delivered to them
Another important feature of the transaction is that in several contracts time was fixed for delivery of the goods
In some cases like the contracts in forms like P 1 to P 3 the shipment has been effected before the contract forms were issued but there are some contracts which contained the stipulation that the bales were to be sent to the godowns of the defendants for shipment to be effected promptly which according to DW 1 Ayyalu Chetti meant two weeks
There were also some contracts like exhibit D 2a which required the goods to be sent for shipment to be effected within one month and some other contracts within two months
All the contracts provided that time should be the essence of the contract
If the defendants were acting only as agents for the sale there is no reason why there should be a stipulation in the contract as to the time fixed for the delivery and the stipulation that time should be the essence of the contract
There is also a further condition in the contracts that the sales tax was on seller s account the seller being the plaintiff
This circumstance also indicates that the legal relationship between the parties was that of a seller and a purchases and not of a principal and agent
On behalf of the plaintiff it was argued that according to the contract the goods were to be marked with the plaintiff s mark
It is true that in some of the defendants  letters such as exhibit P 10 it was mentioned that the bales were sent with the plaintiff s mark in some shipments but this circumstance has not significance
It only means that the buyer resold the goods to the London purchaser with the mark of the plaintiff
It was also contended on behalf of the plaintiff that premium was paid to the plaintiff in case the goods supplied were of special quality
It is in evidence that the premium was extra price obtained in London if the Board of Control was satisfied about the special quality of the goods vide D 1O
It was pointed out that if the defendants were purchasers the premium should go to them but in some cases the premium was paid to the plaintiff
Exhibits P 7 P 10 and P 1 8 show that for some shipments the premium was paid to the plaintiff The explanation of DW 1 Ayyalu Chetti is that in some cases the premium was paid to the plaintiff ex gratia
If in London the quality of the goods was found particularly good the premium was obtained from the London purchaser that is to say the premium was obtained not as in terms of the contract but as a special payment if the goods happened to be of good quality
It is a payment therefore LS5SCI 3 8 made outside the terms of the contract and there is nothing significant if the defendants considered it fair and just to pay the whole of the premium to the plaintiff or to share it with him in some cases
It was also contended by the plaintiff that According to the terms of the contract the landed weight was to be accepted and the plaintiff was to be responsible for the selection and quality of goods at the destination where inspection would be made by the defendants  agents or the ultimate London buyers
In some statements of account sent by the defendants the plaintiff has been debited various amounts for shortage in weight at London
The plaintiff was also informed about the claims made by the London purchasers on the ground of low standard and selection that is to say the plaintiff was made answerable for weight as well as quality
It is true that the liability of the plaintiff is an additional burden thrown upon him under the terms of the contract but it is of no significance in considering the question as to whether the as transfer of title to the goods at the time of shipment from the plaintiff to the defendants
On behalf of the plantiff reference was also made to the fact that the contracts provided for a Hen on all the goods covered by the contracts for all moneys advanced by the defendants including expenses incurred and interest thereon
it is the admitted position that for purchasing skins and hides the plaintiff was taking large sums of money as advances from the defendants
We find from the several statements of account that reference is made to all such advances
These advances together with interest thereon are deducted from the sale price payable to the plaintiff and for the balance alone cheques were sent to him
It appears that on a later date ie in June 1949 the defendants took a regular hypothecation deed exhibit P 19 from the plaintiff in respect of all the advances to be made by the defendants
But it should be noticed that in making such advances the defendants were only acting as creditors of the plaintiff and were therefore entitled to charge interest on such advances till they actually purchased the goods from the plaintiff
After the purchase of the goods they did not charge any interest on the moneys paid by them
It appears from the statements of account that interest was charged on advances upto the date of shipment
In other words the title in the goods passed to the defendants at the moment of shipment of the goods and the fact was that interest was charged on all advances only upto the date of shipment
The charge or lien on the goods therefore subsisted till the time of shipment ie till the title in the goods passed to the defendants under the con
tract of sale
We are therefore unable to agree with the Counsel for the plaintiff that the clause with regard to the
lien is not consistent with the theory of the transactions being an outright sale
There was also a suggestion on behalf of the plaintiff that there cannot be a contract of sale subject to cif terms if there was an out right sale at Madras between the parties
We do not think 9 there is any substance in this argument
The primary object of the contract was that therewas a purchase by the defendants from the plaintiff of the goods for resale in the United Kingdom and in keeping with this object the buyer stipulated with the seller for delivery of the goods abroad and for that purpose adopted a cif form of de
It is also contended on behalf of the plaintiff that the term with regard to arbitration according to the custom obtaining in United Kingdom was not compatible with the theory of a sale between the parties
It is not possible to accept this argument as correct
It is open to the plaintiff to agree that even after the sale had taken place any dispute with regard to the quality of the goods and selection may be submitted to arbitration in the United Kingdom
It is true that a clause of this description is unusual but it is not inconsistent with the theory that there was a sale of goods between the parties at Madras
We have already observed that the contracts in this case were not cif contracts but the price alone was fixed on a cif basis
It is well established that even an agent can become a pur chaser when an agent pays the price to the principal on his own responsibility
In Ex parts White In re Nevil1 T  Co were in the habit of sending goods for sale to N who was a partner in the firm of N  Co but received these goods on his private account
The course of dealing between T  Co and N was that the goods were accompanied by a price list
N sold the goods on what terms he pleased and each month sent to T  Co an ac
count of the goods he had sold debiting himself with the prices named for them in the price list and at the expiration of another month he paid the amount in cash without any regard to the prices at which he had sold the goods or the length of credit he had given
On these facts it was held by the Court of Appeal in Chancery that though both the parties might look upon the business as an agency N did not in fact sell the goods as agent of T  Co but on his own account upon the terms of his paying T  Co for them at a fixed rate if he sold them and the moneys he received for them were therefore his own moneys which T  Co had no right to follow
A similar principle has been expressed in W T Lamb and Sons vs Goring Brick Company Ltd1 In that case certain manufacturers of bricks and other building materials by an agreement in writing appointed a firm of builders  merchants as sole selling agents of all bricks and other materials manufactured at their works
The agreement was expressed to be for three years and afterwards continuous subject to twelve months  notice by either party
While the agreement was in force the manufacturers informed the merchants that they intended in the future to sell their goods themselves without the intervention of any agent 1 2 LS5SCI 3a 10 and thereafter they effected sales to customers directly
An action was then brought by the merchants for breach of the agreement
It was hold by the Court of Appeal that the effect of the agreement was to confer on the plaintiffs the sole right of selling the goods manufactured by the defendants at their works so that neither the defendants themselves nor any agent appointed by them other than the plaintiffs should have the right of selling such goods
It was also held that the agreement was one of vendor and purchaser and not one of principal and agent
Though the term agent  was used in the agreement the Court of Appeal considered that the substance of the transaction was that the manufacturers sold their bricks to the so called agent who in turn sold them on their own responsibility to customers
The price charged by the manufacturers to the sole selling agents was the ruling market price and the sole selling agents were allowed a deduction of 10 per cent by way of commission on that price
The manufacturers had no concern at what rate the sole selling agents sold the goods to customers
It was clear from these facts that the sale by the selling agents to customers was a transaction in which the manufacturers were not interested and there was no privity of contract between the manufacturers and the ultimate purchasers
Reference may be made in this connection to the following passage from Blackwood Wright Principal and Agent 
Second Edn
page 5 In commercial matters where the real relationship is that of vendor and purchaser
persons are sometimes called agents when as a matter of fact their relations are not those of principal and agent at all but those of vendor and purchaser
If the person called an agent  is entitled to alter the goods manipulate them to sell them at any price that he thinks fit after they have been so manipulated and is still only liable to pay for them at a price fixed beforehand without any reference to the price at which he sold them it is impossible to say that the produce of the goods so sold was the money of the consignors or that the relation of principal and agent exists Ex parte White In re Nevill 1871
397A purchaser has not to account to his vendor  his only duty is to pay him and all the other rights and duties which exist between principal and agent do not exist between vendor and purchaser Ex parte Bright In re Smith 1879 10 Ch
566 Ex parte White In re Nevill 1871 6 Ch
 For the reasons already given we are of the opinion that the defendants were purchasers of the plaintiffs goods under the several contracts and not his agents for sale and the view taken by the High Court on this aspect of the case is not correct and must be overruled
11 We pass on to consider the second question involved in this viz whether there was a settled account between the parties and whether it is open to the plaintiff to reopen it
It is admitted in this case that for almost every shipment the defendants prepared a statement of account and sent it to the plaintiff giving full particulars of the amount due to him together with the deduction and showing the net balance payable to him and enclosing a cheque for such balance or giving a credit for the sum the accounts
Copies of such accounts are exhibit P 1AP 2A and P 3A corresponding to the contracts Exs
P 1 P 2 and P 3Copies of other accounts have been filed by the defendants in the Court and marked exhibit D 18 series
The plaintiff in his evidence did not deny the receipt of these accounts
On the contrary he admitted in cross examination that for every shipment he was getting accounts and cheques for the balance due
It is an admitted fact that to these statements of account no objection was raised by the plaintiff at any time
Nor a single document has been produced on his side to show that he ever wrote to the defendants raising an objection to the statements of account
Not only the plaintiff failed to raise objection to the several statements of account but at one stage sent a memorandum to the defendants accepting the accuracy of the accounts
On June 20 1949 the defendants wrote a letter exhibit P 16 to the plaintiff stating that there was a balance of Rs 12637972 payable by him and that against the balance they were holding certain goods belonging to the plaintiff and asking him to confirm the statements
On June 22 1949 the defendants again wrote a letter exhibit D 5 en closing a statement of account exhibit P 17 showing the said balance of Rs 12637972 and asking the plaintiff for confirmation
On receipt of this statement the plaintiff signed the memorandum exhibit D 4 on June 22 1949 and sent it to the defendants confirming the correctness of the balance as due by him and also confirming the stock of his goods remaining with the defendants
The plaintiff conceded in his evidence having signed exhibit D 4 after the receipt of the statement of account exhibit P 17
The plaintiff explained that he did not look into the correctness of the figures but believed exhibit P 1 7 to be correct as it was sent by an English firm
The plaintiff also said that he was told by the defendants  broker that if he did not sign it it would be harmful to him
The trial Judge refused to accept the explanation of the plaintiff and held that the plaintiff had accepted all statements of account as correct and therefore it must be held in law that the accounts were settled and the plaintiff could be allowed to reopen it only by proof of fraud or mistake or any other sufficient equitable ground
The legal position is that the accounts are settled or stated if they are submitted and accepted as correct by the other side to whom the accounts have been rendered
Such a statement of 12 accounts need not be in writing nor is it necessary that before the accounts are settled they should be gone into by the parties and scrutinised and supported by vouchers
It is sufficient if the accounts are accepted and such acceptance may be inferred by conduct of parties
As observed in Diniell s Chancery Practice eighth edition Vol 1 p 419 The mere delivery of an account will not constitute a stated account without some evidence of acquiescence which may afford sufficient legal presumption of a settlement
 There is also the following passage in Bullen and Leake s Prece
dents of Pleadings ninth edition p 584 It is not enough for the accounting party merely to deliver his account there must be some evidence that the other party has accepted  it as correct But such acceptance need not be express contemporaneous or subsequent conduct may amount to a sufficient acquiescence
Again in Willis vs Jernegan1 the Lord Chancellor was dealing with the two objections raised by  the plaintiffs counsel to the defendant s plea of a stated account
It was observed by the Lord Chancellor that there was no absolute necessity that the account should be signed by the parties who had mutual dealings to make it a stated account for even where there were transactions suppose between a merchant in England and a merchant beyond sea and an account was transmitted to England from the person who was abroad it was not the signing which would make it a stated account but the person to whom it was sent keeping it by him any length of time without making any objection which should bind him and prevent his entering into an open account afterwards
In another case Tickel vs Short 2 the Lord Chancellor expressed the opinion that it is the rule of the Court that where a merchant kept an account current by him for about two years without objection the Court will consider that the accounts are stated or settled
The same principle has been expressed by the Bombay High Court in Seth Maneklal Mansukhbhai vs Jwaladutt Rameshwar Pillani3 in which it was pointed out that it was sufficient if the accounts were accepted and such acceptance might be inferred by conduct of parties
The contention on behalf of the defendants is that there has been a stated or settled account in this case and in the ab
sence of fraud mistake or any other sufficient equitable ground it is not liable to be reopened at the instance of the plaintiff
In connection it is necessary to state that the expression account 1  21750 51 2 Ves
Son 239
3 ILR 13 stated has more than one meaning
It sometimes means a claim to payment made by one party and admitted by the other to be correct An account stated in this sense is no more than an admission of a debt out of court while it is no doubt cogent evidence against the admitting party and throws upon him the burden of proving that the debt is not due it may like any other admission be shown to have been made in error
Where the transaction is of this character it makes no difference whether the account is said lo be  stated or to be stated and agreed the so called agreements iswithout consideration and amounts to no more than an admission
There is however a second
kind of account stated where the account contains items both of credit and debit and the figures on both sides are adjusted between the parties and a balance struck
This is called by Mr Justice Blackburn in Laycock vs Pickkes1 a real account stated  and he describes it as follows There is a real account stated called in old law an insimul computassent that is to say when several items of claim are brought into account on either side and being set against one another a balance is struck and the consideration for the payment of the balance is the discharge of the items on each side
It is then the same as if each item was paid and a discharge given for each and in consideration of that discharge the balance was agreed
to be due
It is not necessary
in order to make out a real account stated that the debts should be debts in praesenti or that they should be regal debts
I think equitable claims might might be brought into account and I am not certain that a moral obligation is not sufficient
It is to be taken as if the sums had been really paid down on each side and the balance is recoverable as if money had been really taken in satisfaction subject to this that where some of the items are such that if they had been actually paid the party paying them would have been able to recover them back as on a failure of consideration the account stated would be invalidated
 In the present case the settled account between the parties falls within the second kind of account stated and it is to an account of this description that the equitable doctrine of settled account has to be considered
This statement of the law has been affirmed by Lord Wright in delivering the opinion of the Judicial Committee in Bishnu Chan vs Birdhari Lal2 as the follows Indeed the essence of an account stated is not the  character of the items on one side or the other but the 1 4 B and B 497
2 AIR 1934 PC 147 14 fact that are cross items of account and that the parties mutually agree the several accounts of each
and by treating the items so agreed on the one side as discharging the items on the other side pro tanto go on to agree that the balance only is payable
Such a transaction is in truth bilateral and creates a new debt and a new cause of action
There are mutual promises the one side agreeing to accept the amount of the balance of the debt as true because there must in such cases be
at least in the end a creditor to whom the balance is due and to pay it the other side agreeing the entire debt as at a certain figure and then agreeing that it has been discharged to such and such an extent so that there win be complete satisfaction on payment of the agreed balance
Hence there is mutual consideration to support the pro mises on either side and to constitute the new cause of action
The account stated is accordingly binding
save that it may be re opened on any ground for instance
fraud or mistake which would justify setting aside any other agreement
 In the present case the correctness of the statements of account furnished by the defendants has been challenged by the plaintiff under 13 heads
In view of our finding that the transactions between the parties were not on the basis of an agency but on the basis of an outright sale the accounts cannot be reopened under any of these heads of challenges
The trial court has already gone into the evidence and has reached the finding that there was no fraud mistake or any other sufficient equitable ground for reopening the finality of the accounts
As regards one item viz rebate in marine insurance the trial court has ordered that the plaintiff should be given credit for a small sum of Rs 157 though there was no evidence of fraud on the part of the defendants
The trial court has rejected the claim of the plaintiff for reopening the accounts on any other ground and in view of our finding that the legal relationship between the parties was not one of agency we see no reason for interfering with the decision of the trial court on this aspect of the case also
For the reasons expressed we allow this appeal and set aside the judgment and decree of the High Court in OS Appeal No 22 of 1955 dated the 15th December 1959 and restore the judgment and decree of the trial Judge dated May 6 1954 dismissing the suit of the plaintiff and granting a decree for the counter claim of the defendants
The defendants are entitled to the costs of this appeal in this Court and in the High Court
Appeal allowed


Summary:
The respondent was a trader in hider
and skins and the appellant was an exporter
During the period January to August 1949 there were several contracts between them
The contracts mentioned that the appellant was buying the goods for resale in UK
The price quoted was CIF less 2 12 
The contracts also provided that time should be the essence of the contract that the sales tax was on respondent s ac count that the respondent was answerable for weight as well as quality that there should be a lien on the goods for moneys advanced by the appellant and that any dispute regarding quality should be settled by arbitration according to the custom of the trade in the UK
The course of dealing between them showed that before the goods were shipped they were subjected to a process of trimming and reassortment in the godowns of the appellant with a view to make them conform to London standards that the goods were marked with the respondent s mark and that premiums were paid to the respondent in case the goods supplied were of special quality
The respondent filed a suit on the original side of the High Court praying that an account should be taken of the dealings between himself and the appellant on the ground that the appellant was his agent
The appellant s case was that there was an outright purchase of the respondent s goods and that the appellant was not an agent of the respon dent
The trial Judge dismissed the suit
On appeal the High Court held that the appellant acted as a del credere agent of the respondent and directed the taking of accounts
In appeal to this Court it was contended by the appellant that i the terms of the contracts and the course of dealing between the parties showed that the appellant was not the agent of the respondent but was an outright purchaser of the goods and ii that there was a settled account between the parties which the respondent could not reopen
HELDi The appellant was the purchaser of the respondent s goods under the several contracts and not his agent for sale and therefore the view taken by the High Court was not correct
The essence of sale is the transfer of title to the goods for price paid or to be paid whereas the essence of the 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 the agent is liable to account for the proceeds
On the terms of the contract and the course of dealing between the parties the contract was not one of agency for sale but was an agreement of sale
The appellant purchased the goods from the respondent 2 12 less and sold them to the London purchasers at the full price so that the 2 12  was its margin of profit and not its agency commission
The fact that the goods were sent with the respondents 2 mark that the premium was paid outside the terms of the contract that the appellant considered it fair and just to pay the whole of the premium to the respondent or to share it with him and that additional burden with respect to weight and quality was thrown on the respondent have no significance in deciding the nature of the contract
The clause with regard to lien is consistent with the transac tion being an outright sale because the appellant was acting as creditor of the respondent and charged interest on advances only till the date of shipment of the goods when it became the purchaser of the goods from the respondent
An agent can become a purchaser when the agent pays the price to the principal on his own responsibility
The clause regarding arbitration in the UK though unusual is not also inconsistent with there being a sale of goods between the parties in India
3H 4B 5G H ii The accounts were settled between the parties and the respondent could not be allowed to reopen the settled account as there was no proof of fraud mistake or any other sufficient ground
Accounts are settled or started if they are submitted and accepted as correct by the other side to whom they have been rendered
For almost every shipment the appellant prepared a full and detailed statement of account and sent it to the respondent
The account contained items both of credit and debit and the figures on both sides were adjusted between the parties and a balance struck and the respondent accepted their accuracy and never raised any objection to them
11H 14 E F
Bishnu Chand vs Girdhari Lal 1934 L R 61 IA 273 and Laycock vs Pickles 4 B and S 497 applied