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Calcutta High Court
ANIL K. SEN AND B. C. CHAKRABARTI, JJ.
West Bengal Decorating Co. - Appellant
Versus
Damodar Das Daga - Respondents
C.O. No.3790 of 1981
Decided On : 10 March 1982
ORDER 37, C.P.C. - SUIT FOR RECOVERY OF PRICE OF GOODS SOLD AND DELIVERED - WHETHER COMES WITHIN THE PURVIEW OF ORDER 37 - INTERPRETATION OF ORDER 37, RULE 2(B)(II) - CLAIM MUST ARISE ON AN ENACTMENT, NOT MERELY UNDER AN ENACTMENT - SECTION 55, SALE OF GOODS ACT - DISTINCTION BETWEEN CAUSE OF ACTION ARISING UNDER AN ENACTMENT AND ARISING FROM A CONTRACT.
Fact of the Case:
Plaintiff instituted a suit for recovery of price of goods sold and delivered together with interest, under O.37, C.P.C. The trial court held that the suit came within the purview of Order 37 since 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. The defendant challenged this order in revision.
Finding of the Court:
The court held that the suit did not come within the purview of Order 37. It held that the claim arose from the contract of sale and the breach thereof, and not from the enactment itself. The court distinguished between a cause of action arising under an enactment and a cause of action arising from a contract.
Issues: Whether a suit for recovery of price of goods sold and delivered comes within the purview of Order 37, C.P.C.
Ratio Decidendi: The court interpreted Order 37, Rule 2(B)(II) and held that a claim must arise on an enactment, not merely under an enactment. The court held that Section 55 of the Sale of Goods Act does not create a cause of action for recovery of price of goods sold and delivered, but merely enables the seller to sue the buyer for the price. The court also distinguished between a cause of action arising under an enactment and a cause of action arising from a contract.
Final Decision: The court set aside the trial court's orders and held that the suit should proceed under the ordinary procedure.
B. C. CHAKRABARTI, J . :- 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 O.37, C.P.C. The learned Registrar of that court being not certain whether such a suit could be instituted under O.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 O.37 it was held that the suit came within the preview of that order.
3. Thereafter the summary procedure for suits under O.37 was adopted and the summons having been served, the defendant petitioner entered appearance and filed an application under sub-rule (5), R.3, O.37 praying for leave to defend the suit unconditionally. The defendant claimed in the said application that the plaintiffs 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 O.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 defendants 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 39 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 nave 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 Advocate, we are inclined to condone the delay in challenging thefirst 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 O.37. The contention of the petitioner is that it does not while Mr. Tandon in opposing 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 withi
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