An Agency agreement was entered into between the Mills Company and the appellants appointing the appellants it’s Agents for a period of 30 years. The appellants throughout worked only as the Agents of the Mills Company and for the Fasli years 1351 and 1352 they received their remuneration under the terms of the Agency agreement. Notice was sent to the appellants to pay the amount of tax appertaining to these chargeable accounting periods.
The appellants submitted their accounts and contended that the remuneration received by them from the Mills Company was not taxable on the ground that it is was not income, profits or gains from business and was outside the pale of the Excess Profits Tax Regulation. The Excess Profits Tax Officer made an order assessing the income of the appellants for the accounting periods 1351 and 1352 Fasli at Rs. 8,957 and Rs. 83,768 respectively and assessed the tax accordingly. ISSUES: 1. Whether under the terms of the agreement the petitioner is an employee of the Mills Company or is carrying on business?
2. Whether the remuneration received from the Mills is on account of service or is the remuneration for business? ANALYSIS OF THE FACTS: 1. The appellants were registered as a private limited company having their registered office in Bombay and the objects for which they were incorporated were the following : To act as agents for Governments or Authorities or for any bankers, manufactures merchants, shippers, Joint Stock Companies and others and carry on all kinds of agency business. 2.
Under the Articles of Association of the Mills Company the appellants and their assigns were appointed the agents of the Company. The general management of the business of the Company subject to the control and supervision of the Directors, was to be in the hands of the Agents of the Company. They were to have power to appoint and employ in or for the purposes of the transaction and management of the affairs and business of the Company. The agents were authorized to sub-delegate all or any of the powers, authorities and discretions for the time being vested in them. 3.
The Agency agreement which was executed provided that the appellants and their assign were to be the Agents of the Company for a period of 30 years from the date of registration of the Company and they were to continue to act as such agents until they of their own will resigned. 4. The remuneration of the appellants as such Agents was to be a commission of 2 1/2 per cent on the amount of sale proceeds of all yarn cloth and other produce of the Company. The appellants were to be paid in addition all expenses and charges actually incurred by them in connection with the business of the Company and supervision and management thereof.
JUDGMENT: 1. “An agent is to be distinguished on the one hand from a servant, and on the other from an independent contractor. A servant acts under the direct control and supervision of his master, and is bound to conform to all reasonable orders given him in the course of his work; an independent contractor, on the other hand, is entirely independent of any control or interference and merely undertakes to produce a specified result, employing his own means to produce that result.
An agent, though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal. An agent, as such is not a servant, but a servant is generally for some purposes his master’s implied agent, the extent of the agency depending upon the duties or position of the servant. ” 2.
The difference between the relations of master and servant and of principal and agent may be said to be this: a principal has the right to direct what work the agent has to do: but a master has the further right to direct how the work is to be done. ” 3. In the present case, the powers did not spell a direct control and supervision of the Directors as of a master over his servant but constituted the appellants the agents of the Company who were to exercise their authority subject to the control and supervision of the Directors but were not subject in such exercise to the direct control or supervision of the principals.
4. The remuneration by way of commission of 2 1/2 per cent. of the amount of sale proceeds of the produce of the Company savoured more of the remuneration given by a principal to his agent in the carrying out of the general management of the business of the principals than of wages or salary which would not normally be on such a basis. 5. All these circumstances together with the power of sub-delegation go to establish that the appellants were the agents of the Company and not merely the servants of the Company remunerated by wages or salary.
6. The objects of the appellants in this case inter alia were to act as agents for Governments or Authorities or for any bankers, manufacturers, merchants, shippers, Joint Stock Companies and others and carry on all kinds of agency business. This object standing by itself would comprise within its ambit the activities of the appellants as the agents of the Company and constitute the work which they did by way of general management of the business of the company an agency business.
Apart however from this there is the further fact that there was a continuity of operations which constituted the activities of the appellants in the general management of the Company a business. 7. All these factors taken into consideration along with the fixity of tenure, the nature of remuneration and the assignability of their rights, are sufficient to enable us to come to the conclusion that the activities of the appellants as the agents of the Company constituted a business and the remuneration which the appellants received from the Company under the terms of the Agency Agreement was income, profits or gain from business.
8. The appellants were therefore rightly assessed for excess profits tax and these appeals must stand dismissed with costs. 2. P. Krishna Bhatta And Ors. vs Mundila Ganapathi Bhatta 1955 MAD HC FACTS: The dispute in this case relates to three items of properties, viz. , two parcels of land used for raising paddy and arecanut in Kedila village and a coffee estate in Coorg, ISSUES: whether in regard to these items of properties Ganapathi Bhatta was benamidar and apparent owner? (IRRELEVANT ISSUE FOR US) whether Section 66, C. P. C.
applies to the transactions relating to the two items or Kedila properties, in regard to which two sale certificates have been issued in favour of Ganapathi Bhatta. The other alleged in the pleadings that Ganapathi Bhatta was an agent for the joint family of Bheernayya throughout these transactions and that therefore the prohibition under Section 66, C. P. C. , would not apply to this case. Ganapathi Bhatta by no stretch of imagination can be described as the agent of Bheemayya for the purpose of buying this property in Court auction sale. PRINCIPLE:
In legal phraseology, every person who acts for another is not an agent. A domestic servant renders to his master a personal service; a person may till another’s field or tend his Hocks or work in his shop or factory or mine or may be employed upon his roads or ways; one may act for another in aiding in the performance of his Legal or contractual obligations to third persons, as when he serves a public carrier, warehouse-man or innkeeper in performance of the latter’s duties to the public. In none of these capacities he is an “agent” within the above meaning as he is not acting for another in dealings with third persons.
It is only when he acts as representative of the other in business negotiations, that is to say, in the creation, modification, or termination of contractual obligations between that other and the third persons, that he is an “agent. ” Representation of another in business negotiations with third persons so as to bind such other by his own acts as if they were done by the former, is of the essence of the relation of agency and the distinguishing feature between art “agent” and other persons who act for another.
Looked at from this point of view, an agency is a contract of employment for the purpose of bringing another-in legal relation with a third party or in other words, the contract between the principal and agent is primarily a contract of employment to bring him into legal relation with a third party Or to contract such business as may be going on between him and the third party. An agent is thus a person either actually or by law held to be authorised and employed by any person to bring hint into contractual or other legal relations with a third party.
He is a representative vested with authority, real or ostensible, to create voluntary primary obligations for his principal by making promises or representations to third persons calculated induce them to change their legal relations. Representative character and derivative authority may briefly be said to be the distinguishing features of an agent.
HOLDING: It is not stated in the pleadings in the present case as to when precisely Ganapathi Bhatta was constituted an agent, or on what terms he was so constituted or when the agency was got terminated or other details to spell out an agency. HE IS NOT AN AGENT. SIDE NOTE: The ‘karta’ is not the agent, or trustee of the joint family, but his position has been described as like that of a chairman of a committee 3. Loon Karan Sohan Lal vs Firm John And Co. And Ors. 1967 All HC Facts: The defendant had entered into an agreement with the defendant for the deliver of 15 bales of yarn.
Since the plaintiff did not deliver on time, he went on to sue his principal, the govt. Of assam. Mr. Misra argued that the plaintiff was appointed by the Assam Government as their agent to perform the duties of procuring yarn and if in the performance of his duties as agent he suffered loss he is entitled under Sections 222 and 223 of the Contract Act to be reimbursed by the Assam Government as principal. The agreement between the plaintiff and govt.
Of Assam stated: “This agreement made between the Governor of Assam represented by the Additional Secretary in th Department of Supply (Textile) hereinafter called the Govt. of the one part and M/s Loonkaran Sohanla hereinafter called the agent of the other part. The agent has been appointed for the purpose of procuring yarfor the month of August and September 1948 on the following terms and conditions. ” JUDGEMET But in my opinion the description of the plaintiff in the agreement Ex. C-l and in the letter Ex. 47 as the agent of the Assam government is not conclusive.
The court must examine the true nature of the agreement and the subsequent dealings between the parties, and then decide whether it established a relationship of agency under the law. It is common experience that the word ‘agent’ is frequently used to describe a relationship which is not an agency in law. an agent primarily means a person employed for the purpose of placing the principal in contractual or other relations with a third party and it is essential to an agency of this character that a third party should be in existence or contemplated.
” The agreement Ex. C-l does not suggest, even by implication, that the plaintiff was to represent the Assam Government in any transaction or dealings with any other party or parties. No such parties were mentioned in the agreement or in contemplation of the signatories to the agreement. The conduct of the plaintiff after the agreement shows that he never functioned as the agent of the Assam Government. He entered into the agreement of sale of yarn with John and Co.
in his own name and on his own behalf; he paid the price from his own pocket and did not debit it to the Assam Government; he regarded himself as the owner of the goods and filed this suit in his own name. He might have been advised, when things went wrong, that the Assam Government had described him as their agent and were therefore liable to reimburse him for theloss suffered by him in the discharge of his obligations under the agreement. He is entitled to our sympathy, but he cannot in the circumstances ask this Court to make the Government liable for his losses. Mr.
Misra contended that even if the plaintiff was not employed under the agreement to represent the Assam Government in dealings with third persons, he was appointed “for the purpose of procuring yarn” for the Assam Government and thus employed” to do any act for another” and this made him an agent under Section 182. I am unable to agree. There are several answers to this argument. First. it is based on a misapprehension of the words “a person employed to do an act for another” in Section 182 of the Contract Act. There is a distinction between a person employed In do an act for another and a person who does an act at the bidding if another.
In the first place the act done is not that of the person employed but of him who employs him in the second, the act is that of the person himself Again, in the first case, the person employed is an agent of the employer, in the second, he merely acts at the request of another. Then again in the first case, under Section 222 the person is entitled to be indemnified against the consequences of all lawful acts done by him in the exercise of his authority as an agent, in the latter, he is entitled to be indemnified only if there is a contract of indemnity to this effect.
If the plaintiff had been employed to purchase and sell cotton yarn on behalf of the Government of Assam, or asked by them to distribute yarn, belonging to the Government, he would have been their agent under Section 182 of the Contract Act and entitled to be indemnified for the consequences of all lawful acts done by him But the plaintiff, under the agreement, was to purchase yarn from others and sell it to consumers in Assam The utmost he can claim is that he entered into a transaction of sale with John & Co at the bidding of the Government of Assam.
But there was no undertaking by that Government, either under the agreement exhibit C-1 or any other to indemnify the plaintiff against loss. 10. After a careful analysis of the agreement Exhibit C, I am of the opinion that it is really a license conferring upon the plaintiff the exclusive right to purchase yarn and sell it to consumers within the province of Assam. Though the plaintiff is called an agent, he was no more an agent in law than a licensee under a permit to sell intoxicating liquor subject to terms and conditions specified in the permit.
Here a representative character would be required for him to be an agent which is absent. 4. Unit Trust Of India vs Ravinder Kumar Shukla The Appellant is a statutory corporation established under Section 3 of the UTI Act, 1963. As part of its activities the Appellants float various schemes. Under the various schemes from time to time, the Appellant issue cheques towards maturity amount of the units purchased and/or towards repurchase value. It appears that the Appellant normally draw Account Payee, Non-transferable and Not Negotiable cheques and send them to the payee by registered post.
The Appellant started receiving a large number of complaints from unit holders alleging non-receipt of the cheques. In all 1600 unit holders had not received cheques of the value of app. Rs. 3 Crores 35 lakhs. All these cheques were intercepted, new accounts opened in Banks/Post Offices in the names of payees of the cheques and thereafter the moneis were withdrawn leaving a minimum balance in the accounts. In respect of this colossal fraud, F. I. Rs. have been lodged, investigations and prosecution are in progress. The question before this Court is whether the loss is to be borne by the unit holder payee and/or by the Appellant.
The answer to this question would depend on whether the post office was acting as an agent of the unit holder and/or the Appellant. Thus the law is that in the absence of any contract or request from the payee, mere posting would not amount to payment. In cases where there is no contract or request, either express or implied, the post office would continue to act as the agent of the drawer. In that case the loss is of the drawer. (drawer here is the appellant) any proof of any contract that the amounts could be sent by post or any proof that any request had been made by any of the payees that the amount be sent by post.
Mr. Bhat was also asked whether there was any proof of any practice from which it can be implied that the payee had requested/consented to have the cheques sent by post, since the prrof of such a contract could not be established. Appellant/ drawer held liable. Syed Abdul Khader v. Rami Reddy, SC 1979 MAIN ISSUE: POWER OF ATTORNEY, FEATURES FACTS: The plaintiff (appellant), his father and step brother were owners of lands in a village in the former State of Hyderabad. Coming to know that the two brothers and father were contemplating to migrate to Pakistan, defendant No.
1 suggested to the plaintiff that he would manage their properties but that since he was not in good health, a nominal power of attorney might be granted in favour of defendant No. 34. The power of attorney (Ext. Pl) was granted tc defendant 34 by all of them. It was later supplemented by another deed (Ext. P2). The plaintiff alleged that sometime thereafter he realised that the two defendants in collusion with each other transferred his lands to others for no consideration or inadequate consideration and that thereby a fraud was perpetrated upon him by the defendants.
Thereupon, it was further alleged, the plaintiff and his brother published in the newspapers and the official gazette a notice cancelling the power of attorney granted to defendant No. 34. The plaintiff sued the defendants for recovery of possession of lands and certain other benefits ISSUES: Mr. V. Gopalakrishnayya, learned counsel for the appellant urged that: 1. it is impermissible in law to give a joint Power by three persons in favour of one agent. 2.
Alternatively it was contended that if such a power of Attorney is legal and valid it would clothe the agent with the only authority to Act in respect of the joint affairs or property of the principals and not for any individual affair or property of any one of them. 3. It was further urged that upon a true construction of the authority conferred by the Power of Attorney, Ext-P-1 the scope of authority only encompassed the management of the joint properties of the three co-principals or at best the management of property of each one of the principal but it did not clothe him with an authority to sell the property
of any one of them and the situation is not improved by the supplementary deed, JUDGEMENT 1. The first contention of the appellant is that it was impermissible in law for three persons to jointly grant a Power of Attorney in favour of defendant 34. The relation between the donor of the power and the donee of the power is one of principal and agent and the expression ‘agency’ is used to connote the relation which exists where one person has an authority or capacity to create legal relations between a person occupying the position of principal and third parties.
The relation of agency arises whenever one person called the agent has authority to act on behalf of another called the principal and’ consents so to act. The relationship has its genesis in a contract. If agency is the outcome of a contract between the principal and the agent, in order to show that three principals jointly constituting an agent by a deed called ‘Power of Attorney’ was impermissible, provisions of Contract Act or the general law of contract should have been shown as having been violated by such a contract. Nothing of the kind was pointed out to us.
“Co-principals may jointly appoint an agent to act for them and in such case become jointly liable to him and may jointly sue him. ” 2. The next limb of the submission was that if three co- principals jointly constituted an agent then unless contrary is indicated by the deed of the Power of Attorney, the necessary inference would be that the agent can act in respect of those affairs in which all the co-principles are jointly interested. In other words, it was said that such a Power of Attorney would clothe the agent with an authority to act in respect of joint affairs of the co-principals.
We are unable to find any force in this argument, for what the Power of Attorney authorises depends on its terms and the purpose for which it is executed. From an analysis of the power of attorney and surrounding circumstances: It thus clearly transpires that each one of the co-principals had his land, that each one of them was unable to manage his land, and that all the three of them were contemplating to migrate to Pakistan and that they wanted possibly to dispose on their lands, collect cash and skip over to Pakistan.
If Power of Attorney Ext. P-1 was executed in this background it would illumine the scope and ambit of authority conferred by Ext. P-1. It would clearly appear that each one wanted to constitute defendant 34 to be his agent in respect of his property. Therefore, the contention that the power of attorney Ext. P-1 read with Ext. P-2 was a joint power only in respect of joint properties of the three co-principals must be rejected. 3. The next contention is that upon a true construction of Ext. P-1, the authority conferred thereby was to manage the property of the donors of the power and it did not confer any authority to purchase or sell the property. CONTENTION REJECTED A bare perusal of Ext.
P-1 clearly shows that apart from the power to manage the property, a further power to purchase and sell lands was conferred on the agent. Power to purchase and sell lands has been expressly mentioned at two places in Ext. P-1. , If we recall at this stage the circumstances in which Ext. P-1 came to be executed in favour of defendant no. 34, it clearly appears that plaintiff. , his father and brother were keen to get the lands sold as they were contemplating to migrate to Pakistan. In the face of this express and explicit power it could not be said that the authority was conferred only to manage the property.
Commissioner-cum-Secretary, Department of Animal Husbandry Vs. Smt. K. Rinzing AIR 1998 SKKHIM 7 SIKKHIM HC, 1998 FACTS: The Plaintiff (Respondent before us) was appointed agent for dealing with hides and skins within the State of Sikkim. Being the lawfully appointed agent of the Government, the plaintiff started purchasing hides and skins from various butcheries within the State of Sikkim and dealing with the same either by selling it to the local utilizers or by way of exporting them under proper permit from the Government.
the plaintiff found the Remeshwar of Lall Market forcibly taking away about 500pieces of hides and skins, collected and stored by the plaintiff, from the store room at Majhitar. On being questioned Rameshwar replied that he was doing so under the authority from the Department of Animal Husbandry. Simultaneously on the same date the plaintiff got another letter from the Principal Director of Animal Husbandry Department indicating that the agency of the plaintff was terminated retrospectively from 5-8-1995. This case has been filed for an injunction over the order of termination of agency.
For creation of an agency or contract no formal document is required. It may be express or implied and by words and conducts also. Sections 186 and 187 of the Contract Act would be relevant for the purpose. Therefore, the ground that no legal agreement between the parties was there does not stand at all. We have already noted that one of the pleas for termination is that the agency was granted in contravention of Section 7(2) of the Livestock Control Act. It has been urged on behalf of the State that only a Corporation owned or controlled by the Government and a registered Co-operative Society can be appointed as agent.
Since the Plaintiff does not come within either of the categories as mentioned in Section 7(2) of the Act, the appointment must be held to be illegal. The contention of the Respondent in this regard is that she was appointed as authorised agent under Section 7(1) where an individual may be appointed and so her appointment cannot be cancelled on the plea that she does not come within any of the categories mentioned under Section 7(2) of the Act. It becomes necessary to adjudicate the points of dispute in this respect, here and now.
In other words we should see if ‘authorised agent’ appearing under Section 7(1) and ‘agent’ as appearing under Section 7(2) are two different categories. A reading of Section 7(1) indicates that only an authorised agent of the Government can deal in the trade and commerce of hides and skins. Nothing has been elaborated in this sub-section as to who my be appointed as ‘authorised agent’. The same has been categorised under Section 7(2). Therefore ‘authorised agent’ appearing under Section 7(1) and ‘agent’ appearing under Section 7(2) ought to be the same. Section 9 and Section 14 of the Act refer to authorised agent.
Nowhere in the Act one finds reference to any rights or duties of any ‘agent’ simpliciter. In Section 7(3) of the Act we find ‘agent authorised’. We cannot distinguish between tin authorised agent and an agent authorised. Any legal dictionary would indicate that a person authorised by the principal to do an for him is the agent. Likewise ‘authority’ means power or right conferred on a person usually by another to act on his behalf. Whenever any need for interpretation of any point of any statute arises, the grammatical meaning of the term should be given proper important.
Moreover, only that meaning of a term should be accepted which would harmonise with the other provisions or the whole of the statute. On applying these principles and to give an effective meaning to the terms we hold that ‘authorised agent’ appearing in Section 7(1) is the same as ‘agent’ appearing in Section 7(2) of the Act. Section 7(2) is the enabling provision under which the Government is to appoint its agent as contemplated under Section 7(1) of the Act. 14. Thus it is apparent that the appointment of the Respondent as an agent of the Government was not strictly according to the Act of 1985.
The agency should have gone to any Corporation owned or controlled by the Government or to any Co-operative Society and not to any individual like the Respondent. Injunction not granted but an injunction can be granted in such a case Watteau v. Fenerick 1893 (British Case) Though not over ruled the case is heavily criticized. Issue: An agency agreement is a tripartite agreement between a principal, agent and third part? Facts: An agent was appointed as licensee of a hotel by the principal, Fenwick.
The agent had restrictions placed upon his authority by the principal, including that he could not purchase cigars on credit. However, the agent did purchase cigars on credit and when the sellers, Watteau, discovered he was in an agency agreement, he proceeded to sue Fenwick for recovery of the debt. Held: The court decided that the principal was liable for acts of his agent, even if the agent acted beyond his actual authority. The principal was liable as the agent was deemed to have usual authority – in this case, it was usual for a hotel licensee to purchase cigars. Reasoning of court:
Once it has been established that the defendant was the real principal, the ordinary doctrine as to principal and agent applies – that the principal is liable for all the acts of the agent which are within the authority usually confided to an agent of that character, notwithstanding limitations, as between the principal and the agent, put upon that authority. It is said that it is only so where there has been a holding out of authority. Further the analogy of a partnership arrangement was used. If there is a dormant and active partner there can be no limitation of authority and the same should be true for agency agreements.
(Flawed) Dissatisfactions: The agent had exceeded the expressed actual authority, as he was forbidden to purchase cigars on credit. But it is certain Humble was acting with the usual authority of someone in his position as it is more than arguable that it is usual for a hotel licensee to purchase cigars. Wills J could not have applied apparent (or ostensible) authority because it requires that the principal was known, and in this case the principal was undisclosed. The case was decided upon apparent authority, yet as stated it is doubted whether this contention is valid because the principal was not known.
The analogy to partnership is flawed because in a partnership agreement, a third party will know the existence of the dormant partner, yet in an agency agreement, the third partner will not necessarily know about the existence of a principal. Also, a dormant partner is liable to the same extent as an active partner, whereas in an agency agreement, should the situation arise, the third party has to elect whether to sue the principal or agent. Hely-Hutchinson v. Brayhead Ltd. and another 1967 (British Case) Issue: Apparent authority and actual authority of an agent.
At what time must the director’s interest be disclosed? Facts: Hely-Hutchinson sued Brayhead Ltd for losses incurred after a failed takeover deal. The CEO, chairman and de facto managing director of Brayhead Ltd, Mr Richards, had guaranteed repayment of money, and had indemnified losses of Hely-Hutchinson in return for injection of money into Hely-Hutchinson’s company Perdio Electronics Ltd. Perdio Ltd was then taken over by Brayhead Ltd and Hely-Hutchinson gained a place on Brayhead Ltd’s board, but Perdio Ltd’s business did not recover.
It went into liquidation; Hely-Hutchinson resigned from Brayhead Ltd’s board and sued for the losses he had incurred. Brayhead Ltd refused to pay on the basis that Mr Richards had no authority to make the guarantee and indemnity contract in the first place. Held: Hely-Hutchinson was to be indemnified by Brayhead. Reasoning: Although Chairman had no actual authority to enter into contracts, Richard had ostensible or apparent authority to do so as he acted as the company’s de facto managing director.
He was the chief executive who made the final decision on any matters concerning finance. He often committed to Brayhead to contracts without the knowledge of the board and reported the matter afterwards. The board knew of and acquiesced in that. On appeal by Beayhead:- Appeal dismissed that, on the facts, chairman had actual authority to be implied from the conduct of the parties. AGENCY Delhi Electric Supply Undertaking v. Basanti Devi 1999 Cited: The Contract Act, Section 182, 185; the Insurance Act ; the Constitution of India Article 129 Issue: What makes an agent?
Was Delhi Electric Supply Undertaking (DESU) an agent of LIC or of its employees? Was DESU an agent under Section 182 of Indian Contract Act or under Section 42 of the Insurance Act? Facts: Basanti Devi sued DESU and LIC in Consumer court (National Commission) when she was refused payment on her husband’s life policy on grounds of non payment of premium. Court decided in her favour with DESU paying her and LIC set free of all liability. She did not push the matter further. DESU then filled by saying that LIC should be held liable as they were simply agents of LIC.
The arrangement of the policy was such: LIC approached DESU to open policies for their employees. An employee could pull out of the scheme at will. An employee could continue the policy even after quitting DESU. DESU was responsible to collect premium from all the employees and remit the same by means of one cheque to LIC. DESU was to deduct premium from the salary of the employee and to remit the same to the LIC. No individual premium notice is to be sent by LIC to any employee and no receipt is to be given to him for the premium received.
It is the DESU which is to inform LIC of all the changes in the staff as soon as they occur, so also the fact when any employee leaves the service of DESU. An employee is kept ignorant of the happenings between LIC and DESU except he is made aware of deduction of premium from his salary every month. Now under Insurance Act DESU was not an agent of LIC as to be an agent you need a licence. Further in letter written by DESU to LIC it is mentioned that DESU would be an agent of its employee and not that of the LIC but this understanding betwee.