B.C. Chakrabarti, J.
1. These two revisional applications, both at the instance of the defendant of Com. Suit No. 510 of 1979 of the City Civil Court, are directed against two Orders dated Jan. 11, 1980 and September 23, 1981.
2. The plaintiff opposite party instituted the above suit for recovery of price of goods sold and delivered together with interest, under Order 37, C.P.C. The learned Registrar of that court being not certain whether such a suit could be instituted under Order 37, placed the matter before the Bench for orders. The court by its order dated January 11, 1980, held that the unpaid price of goods sold is in the nature of a 'debt' and the liability arises out of an enactment, viz, the Sale of Goods Act, Hence, in view of the amended provisions of Order 37 it was held that the suit came within the perview of that order.
3. Thereafter the summary procedure for suits under Order 37 was adopted and the summons having been served, the 'defendant petitioner entered appearance and filed an application under Sub-rule (5), Rule 3, Order 37 praying for leave to defend the suit unconditionally, The defendant claimed in the said application that the plaintiff's claim was fictitious and that the defendant had a substantial defence to put forth. It was also claimed that such a suit could not come within the meaning of Order 37 of the Code. This application for leave to defend was filed beyond time and the defendant also explained the reason for the delay and prayed for condonation of the same.
4. By the order dated Sept. 23, 1981 the learned Judge, held 'the cause shown by the defendant for the delay in filing the application for leave is considered sufficient, Permission should therefore be granted to the defendant to defend the suit on furnishing security to the extent of Rs. 11,500.'
5. On such findings the learned Judge allowed the defendant's application and granted leave to defend the suit on condition of furnishing cash security of Rs. 11,500 which represented the total claim in the suit.
6. Being aggrieved the defendant filed a revisional application challenging the propriety and correctness of the Order, Subsequently a separate application was filed challenging the order dated January 11, 1980 by which order the suit was found to be governed by the provisions of Order 37 of the Code, This second application was obviously filed beyond time and was accompanied by an application under Section 5 of the Limitation Act.
7. All the applications have been heard together on notice to and upon contest by the plaintiff opposite party.
8. In the application under Section 5 of the Limitation Act, it has been pleaded that the order dated January 11, 1980 was passed before the summons was served on the defendant, that the defendant was under the impression that the order was passed by the learned Judge, in his administrative capacity and that while; entering appearance the defendant had challenged the jurisdiction of the court, in passing the order permitting the suit to continue under the summary procedure. Having heard the learned Advocates, we are inclined to condone the delay in challenging the first order in the peculiar circumstances of the case.
9. The delay being condoned we are now concerned with the more important question namely whether such a suit really comes within the meaning of Order 37. The contention of the petitioner is that it does not while Mr. Tandon in oppose big the applications contends that in view of the amended provisions of the Code, the suit falls well within the class of suits contemplated by Order 37.
10. Before coming to consider this aspect of the matter, we may at once point out that the second order dated September 23, 1981 suffers from an apparent infirmity in so far as the learned Judge does not appear to have at all considered whether or not the defendant had succeeded in making out a substantial defence at all But this however is a question which we may be required to consider if at all It is found that the suit comes within the meaning of Order 37.
11. Admittedly the suit could not come under the provisions of Order 37 as it stood prior to amendment, By the amendment, the scope of Order 37 has been enlarged and extended to include the specified classes of suits enumerated in the amended provisions,
12. Sub-rule (2) of Rule 1 of Order 37 as it now stands reads as follows 3
'(2) Subject to the provisions of Sub-rule (1), the Order applies to the following classes of suits, namely,--
(a) Suits upon bills of exchange, hundies and promissory notes;
(b) Suits in which the plaintiff seeks only to recover a debt or a liquidated demand in money payable by the defendant, with or without interest, arising--
(i) on a written contracts or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;... ... ... '
13. It is obvious that Clause (a) has no application. In invoking Clause (b) Sub-clause (i) also has to be excluded because it is nobody's case that the claim is founded on a written contract. Therefore the suit may be held to come under Order 37 only if it can be shown that the plaintiff is seeking to recover, by the suit, a debt or a liquidated demand in money arising on an enactment.
14. By referring to Section 55 of the Sale of Goods Act, Mr. Tandon contends that the claim arises under the provisions of the said Act, In fact that was the finding of the learned Judge when He passed the first order impugned before us, Section 55(1) of the said Act provides as follows 'where under a contract of sale the property in the goods has passed to the buyer and the buyer wrongfully neglects or refuses to pay for the goods according to the terms of the contract, the seller may sue him for the price of the goods'. It is apparent upon a reading of the section aforesaid that the claim for the price of the goods really arises from the terms of the contract of sale. It would be unreasonable to hold that because the Act enables the seller to sue the buyer for the price, the claim must be held to arise on the enactment. That it is not so is apparent on the language of the section itself. A cause of action does not arise under or on an enactment unless it arises out of and depends on the enactment, so that the plaintiff must show both in stating and in proving his case that his right to recover stands on the enactment. In our view the claim of the nature as made in this suit cannot be said to arise on an enactment. It arises from the contract of sale and the breach thereof.
15. Mr. Tandon drew our attention to a somewhat analogous provision contained in Chapter XIIIA of the Rules of the High Court at Calcutta in its Original Side and argued upon a reference to the case of Mitra Mukherjee & Co. v. Ajit Kumar, AIR 1963 Cal 9, that a suit for recovery of price of goods sold and delivered really falls within the category of a summary suit contemplated by Chapter XIIIA of the Rules.
Rule 1 of Chapter XIIIA reads as follows :--
'1. The provisions of this Chapter shall not be applicable save to suits.--
(A) in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant with or without interest arising--
(i) on a contract express or implied; or
(ii) on an enactment where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or. ... ... ...'
16. In spite of the seemingly similar words used in the Rule aforementioned and the provisions of Order 37 of the Code, there is a world of difference in so far as Clause (i) is concerned. Clause (i) of Order 37 relates to a suit arising on a written contract whereas Clause (i) of Rule I of Chapter XIIIA relates to a suit arising on a contract express or implied. The case of Mitra Mukherjee & Co. (supra) has to be read in the context of this difference. This apart, that case, though arising out of a claim for recovery of price of goods sold and delivered, and brought under Chapter XIIIA of the High Court Rules (Original Side), considered the question of appealability of an order directing furnishing of security to the extent of the claim in the suit. It holds that such an order is appealable and if on appeal such an order is set aside, the decree that was drawn up pursuant to the non-compliance with the order, will automatically disappear. The decision did not consider under which particular clause of Rule 1, the suit was categorised as a summary suit. The trial proceeded on the tooting that it was a summary suit. It is likely and that seems to be more plausible, that it was so held because the claim rested on a contract of sale which was implicit on the transaction Itself, Since Chapter XIIIA also relates to suits arising on a contract express or implied, it may be that such a suit was found to be governed by Chapter XIIIA, of the Rules. But there is no such provision in Order 37 of the Code, Suits arising on an implied contract are outside its scope. It will bear repetition that in the suit before us the plaintiff does not appear to have founded his claim on a written contract. An implied contract is outside the perview of Order 37. We have found already that the claim of the plaintiff cannot be said to arise on an enactment. Therefore it is difficult to see how such a suit could come within the meaning of Order 37.
17. Such being our view, the order dated January 11, 1980 can hardly be sustained. If that order fails, and fail it must, the subsequent order dated September 23, 1981 must necessarily fail.
18. In the result the revisional applications succeed. Both the impugned orders are hereby set aside. The suit should now proceed under the ordinary procedure. Since the defendant has already entered appearance, although in response to a summons issued under Order 37, it will not be necessary to serve him afresh. The defendant may now be directed to file his defence, If any, straightway,
19. The applications are thus disposed of.
20. There will be no order for costs.
21. The order be communicated to the court below forthwith.
Anil K. Sen, J.
22. I agree.