The court clarified the distinction between commission agents and agents in the real sense of the term, emphasizing that commission agents may act as debtors in their own right and not merely as agents.

Vivian Bose—The only question for determination in this revision is whether the Khamgaon Court has jurisdiction to try the present case. Both the lower Courts hold it has not. The plaintiff is a merchant who deals in the purchase and sale of grain and cotton seed. The defendants who reside and carry on business at Sonpat in the Punjab are also merchants who act as-commission agents in respect of these commodities. When one of the plaintiff's agents, Hokarmal, was at Sonpat he entered into an agreement with the defendants at Sonpat on behalf of his principal for the sale of grain and cotton seed. The arrangement was this: the plaintiff was to send the defendants consignments of these goods from time to time from Khamgaon; the defendants were to keep these goods with them and await instructions from the plaintiff about the sale; then as soon as the plaintiff gave them the word they were to sell and in due course hand over the sale proceeds to the plaintiff less their commission charges: the money however as not to be paid at Khamgaon but at Delhi. These are the facts found by the Appellate Court and must of course be accepted here. They are not disputed except as regards the place of payment. As regards that the method of payment was this: The defendants were to send the plaintiff accounts from time to time of the various sales made by them. The plaintiff was then to draw hundis on one Thakurdas of Delhi and the defendants guaranteed that Thakurdas would honour these hundis. Of course the question arises whether this was payment to the plaintiff at Khamgaon or at Delhi. The plaintiff admitted that he had to bear the commission charges on the hundis and so it is clear that the net amount which he actually received was not the full amount due from the defendants but that sum less the commission charges on the hundis. The lower Courts deduce from this that Thakurdas was acting as the plaintiff's agent for the purposes of receiving these payments and therefore held that the payment was to be at Delhi. This conclusion is eminently reasonable and cannot be questioned in revision. So far as delivery is concerned, it was clearly to be at Sonpat. The plaintiff engaged the defendants to sell these goods for him and of course the defendants could not do this until they actually received the goods; indeed according to the plaint, the contract was that the goods were not to be sold till the plaintiff gave permission; till then, they were to be stored by the defendants. Therefore we have the position here that the defendants reside at Sonpat, that the contract was made at Sonpat, that delivery was to be at Sonpat, that the sales were to be effected at or from Sonpat and that the money was to be paid at Delhi. None of these ingredients invest the Court at Khamgaon with jurisdiction. Then is there anything else which does? To determine that we must first ascertain the nature of the suit.

2. The defendants, as I have said, were employed by the plaintiff to sell goods for them as commission agents and so at first sight would appear to come within the definition of agent given in S. 182, Contract Act. In that event the suit would of course be by a principal against his agent, and at one time I thought it was a suit for accounts, at any rate, so far as the primary relief is concerned. If that were so, then the place where the accounts were to be rendered would be an important ingredient in the cause of action, for a suit for accounts is naturally founded on the right of the plaintiff to receive an accounting from the other party. But such a right can only arise if the parties are in a fiduciary relationship to each other. Commission agents, are of course agents up to a point and to that extent they stand in a position of active confidence towards their principals, but beyond that they are not agents in the real sense of the term and the relationship between the parties from then on is one of debtor and creditor. This distinction is to be fou