1. This is defendant's appeal challenging the judgment and decree dated 01.05.1995 passed by the District Judge, Raipur declaring that the plaintiff is entitled to rendition of account from the defendant, further appointing a Commissioner to ascertain the exact amount, which the plaintiff is entitled to receive from the defendant and that the said amount be paid by the defendant to the plaintiff together with interest @ 12% w.e.f. 24.10.1979 till recovery.

2. Facts of the case, very briefly stated, are that the plaintiff is a registered partnership firm engaged in commission business and Kirana trade at Gudiyari, Raipur. The defendant, who is a manufacturer of postman groundnut refined oil, appointed the plaintiff as its commission agent to sell its product on commission on the terms mentioned in para 3A of the plaint. The relationship of commission agent thus continued from 08.01.1973 to 1976, however, on 13.10.1976, the defendant returned the amount of Rs.32,550/-, which was the amount paid by the plaintiff to the defendant for supply of goods, but the defendant could not supply the goods. According to the plaintiff, as on this date i.e. 13.10.1976, the defendant was to pay a sum of Rs.97,943.76 paise, which the defendant did not pay, therefore, adding interest on that amount, the defendant owed Rs.1,33,203.51 paise as the commission for the commission agent, for which there was an agreement between the parties.

3. The defendant denied the entire suit allegations. According to the defendant/appellant, the plaintiff was never appointed a commission agent by it, therefore, there is no obligation on the part of the defendant to maintain the account of transactions between them. In substance, the defendant pleaded that the relationship between them was that of producer/supplier and dealer/broker, therefore, even if the plaintiff was maintaining an account of transactions between them, the same would not get converted into appointment of commission agent. The defendant also pleaded that the suit is barred by limitation, because there was no transaction on 13.10.1976 in continuation of a running account. On the said date, the defendant only returned the amount as it was unable to supply the postman oil to the plaintiff, but there was no acknowledgment at any point of time by the defendant, in token of which the amount was paid.

4. The trial Court has framed as many as 10 issues for determination interalia holding that the plaintiff was appointed as a commission agent; it had paid Rs.5,000/- to the defendant in furtherance of the agreement of relationship of commission agent; that each transaction between the parties was not separate but it was a running account and the suit is not barred by limitation. However, while deciding Issue No.3, the trial Court has found that there was no agreement or understanding between the parties that the defendant had agreed to the plaintiff's method of keeping the account or that the account shall be finalized at the time of Diwali every year.

5. It is argued by Shri Amrito Das, learned counsel for the appellant/defendant that in view of the provision contained in Order 20 Rule 16 CPC, the trial Court could not have straightway passed a decree, which is in the nature of a final decree for rendition of account. It is also argued that under the law of agency, an agent cannot seek rendition of account from the principal. It is also argued that the suit was barred by limitation.

6. Shri Surana, learned counsel for the respondent/plaintiff would submit, on the other hand, that once it is found that there was an oral understanding between the parties wherein the defendant had agreed to pay certain commission to the plaintiff on sale of each tin of postman oil and the relationship/transaction continued for a number of years, there would be presumption of a continuous account between the parties, therefore, the suit was within limitation. It is also argued that even if the word 'preliminary decree' is no