A summary suit can be maintained even if the plaintiff's claim is based on an oral agreement, as long as it falls within the category of a debt or liquidated demand arising from an express or implied contract.

CHAGLA, C.J.:- This is an appeal against a decree passed by a Judge of the City Civil Court on a summary suit. A summons for judgment was taken out by the plaintiffs and conditional leave to defend was granted to the defendant, who is the appellant before us. The appellant failed to comply with the conditions on which he could defend the suit. Therefore the suit was placed on board for a decree and a decree was passed. It is against that decree that this appeal is preferred.

2. The first contention of Mr. Nain on behalf of the appellant is that the suit is based on three oral agreements and therefore it was not maintainable as a summary suit.

Now, the two agreements are referred to in the plaint and these two agreements are that the defendant saw Ramrikhdas a partner of the plaintiffs at Muttra and it was then agreed between the parties that the plaintiffs should accept and honour hundis drawn by the defendant against the plaintiffs and that the defendant should pay to the plaintiffs on demand the amounts of the said hundis with interest thereon from the dates of payment at the rate of 6 per cent. per annum, and para.3 of the plaint goes on to state that in pursuance of the said agreement and under instructions from the defendant, the plaintiffs honoured and paid three hundis respectively dated 9-4-1950, 10-4-1950 and 10-4-1950, for the respective sums of Rs.5,000, Rs.5,000 and Rs.2,000 drawn by the defendant against Messrs. Ramrikhdas Chiranjilal Parasrampuria in favour of the Punjab National Bank Ltd.

The hundis are annexed to the plaint and they show that they were not drawn in favour of the plaintiff-firm but they were drawn upon Ramrikhdas Chiranjilal Parasrampuria. In the affidavit in support of the summons the plaintiffs stated that in the plaintiff-firm Ramrikhdas and Chiranjilal are partners and the hundis were drawn upon Ramrikhdas Chiranjilal pursuant to the instructions of the defendant, and therefore Mr. Nain says that really in this affidavit the plaintiffs are relying on a third agreement which is that the plaintiffs were liable for hundis not drawn upon the plaintiff-firm but upon the individual Ramrikhdas Chiranjilal Parasrampuria.

3. Now, the question raised by Mr. Nain is of considerable importance because this question often arises where leave to defend is either refused or conditionally granted. The question we have to consider is whether a summary suit would lie when the plaintiffs claim is not based upon any written agreement but is based upon an agreement in order to prove which evidence would have to be given by the plaintiff.

It seems that a view was taken in - Parmanand Maneklal v. Special Land Acquisition Officer, Ahmedabad, F.A. No.16 of 1953, D/-3-12-1954 (Bom) (A), by myself and my brother Mr. Justice Shah and also in - Hirachand Parsaram v. Lach-mandas Parsaram, Civil Revn. Appln. No.536 of 1953, D/-11-12-1953 (Bom) (B), by me sitting singly that where the plaintiff has got to prove an oral agreement, he could not enforce that agreement by a summary suit. It seems to us that that view should be reconsidered on a more careful consideration of the rule framed by us with regard to the filing of a summary suit. Now, the High Court has amended O.37, R.2, and the amended rule to the extent that it is material runs as follows :

"All suits upon bills of exchange, hundis or promissory notes and all suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant with or without interest, arising on contract express or implied, or on an enactment where the sum sought to be recovered is a fixed sum of money."

Now, this case falls in the category of a debt or liquidated demand in money payable by the defendant with or without interest arising on the contract express or implied. Therefore the rule itself assumes that the contract on which the plaintiff is suing need not be a contract in writing. It may even be an implied contract. But so long as there is a