An order directing the furnishing of security in default whereof a decree is to be drawn up is appealable.

( 1 ) THIS is an appeal from an order directing the defendants in the suit to furnish security to the extent of Rs. 6500/- for the satisfaction of the plaintiff's claim by depositing the said sum with the defendants' attorney to be held by him free from any lien and subject to further orders of this Court, in default whereof the plaintiff was to be entitled to a decree for the amount claimed in the suit.

( 2 ) THE suit is for price of goods sold and delivered, the plaintiff being one Ajit Kumar Sarkar who describes himself in the plaint as the Managing Agent of a Colliery known as 'beldanga Khas colliery' of which the proprietors were some persons by the name of Tewaries. According to the plaint the supplies were made and the coals were delivered to the defendant No. 1 at rates controlled by the Central Government, inter alia on the terms that the bills would be payable within 60 days from the date of presentation and the plaintiff would be entitled to charge interest at 12 per cent per annum, if the bills were not so paid. The particulars of the plaintiff's claim are given in paragraph 5 as based on four separate bills for Rs. 3,023. 12, Rs. 410-3-9, Rs. 1,757-1-6 and Rs. 803-12-6. There was no privity of contract between the Colliery or the plaintiff on the one hand and the defendant No. 2, a Company registered under the Indian Companies Act which came into existence after the dates of the contract on the other. The only cause of action alleged against the second defendant is that under an agreement inter Secondary Education the defendants the defendant No. 2 has taken over all the assets and liabilities of the defendant No. 1 impliedly warranting that it would be the liability of defendant No. 2 to the plaintiff.

( 3 ) ON an application being made under Chapter XIII-A for final judgment for amount of the claim an affidavit-in-opposition was affirmed by one Amarendra Nath Mukherjee, a partner of the first defendant and a Managing Director of the second defendant. Various defences to the plaintiff's claim have been taken in this affidavit but I need mention only two of them. The first and foremost is that the plaintiff has no right to sue and has no cause of action against either of the defendants. According to the deponent the plaintiff Ajit Kumar Sarkar was held out as the Managing Agent of the Tewaris' Beldanga Khas Colliery and S. C. Tewari and others were held out as the Proprietors of the said Colliery and the defendant firm, Mitra Mukherjee and Co. dealt with them on that basis. The deponent goes on to state that orders were placed on the said, Colliery for supplies of Steam Coal on inter alia the following terms and conditions : (a) That the Steam Coal ordered to be supplied were to be consigned by the said Colliery by Railway to the consignees named by the defendant Mitra Mukherjee and Co. , (b) That the prices of Steam Coal so supplied would become due and payable upon such consignments being effected. The deponent refers to the bills for the supplies of coal received by it, copies whereof are annexed to the affidavit of Amarendra Nath Mukherjee. These four bills go to show that defendant firm Mitra Mukherjee and Co. was a debtor to the Tewaris' Beldanga Khas Colliery for the amounts mentioned in the bills. All these bills were sent by the plaintiff Ajit Kumar Sarkar for Tewaris' Beldanga Khas Colliery and he is described in the bills as Managing Agent of the said Colliery.

( 4 ) THE second defence is that the defendant No. 1 sold and delivered to Messrs. A. Sircar and Sons Ltd. , of which the plaintiff was the Managing Agent, diverse quantities of coal of the aggregate value of Rs. 22793. 83 np. Out of the Messrs. A. Sircar and Sons Ltd. made payment from time to time totaling Rs. 16,084. 68 np. and with regard to the balance of Rs. 6,709. 20 np. due to the firm an agreement was arrived at on the 9th of August, 1958 between Tewaris' Beldanga Khas Colliery, Messrs. A. Sircar and Sons Ltd. and th