JUDGMENT
P. Ramakrishnam Raju, J.
1. The Plaintiff in O.S.No. 2170/89 on the file of the IV Additional Judge, City Civil Court, Hyderabad is the petitioner herein, who is questioning an order made in I.A.No. 919/90 granting unconditional leave to the respondents-defendants to contest the suit filed under Summary procedure.
2. The suit was filed for recovery of Rs. 56,238-29 Ps. together with interest, being the amount due in respect of certain cloth sold and delivered on credit basis. The respondents made part payments and the suit is laid for the balance. It is stated that the first respondent is the firm of which the second respondent is the proprietor; while the third respondent is his wife. The respondent Nos.2 and 3 executed a letter dated 23-2-1987 wherein, the second respondent admitted his liability in a sum of Rs. 56,625-89 Ps. for which the third respondent also gave security. Therefore, the suit is filed under Order 37, Rule 1 C.P.C. The respondents objected contending that the suit is not maintainable under summary procedure.
3. The lower Court by its order dated 1-2-1991 upheld the objection and held that in as much as there is no written contract, nor the liability can be said to have arisen under any enactment or on any guarantee and the suit is not maintainable on the summary procedure and accordingly, directed that the suit shall be tried on the regular side. This order is challenged in this revision.
4. Order 37, Rule 1 C.P.C. so far as it is relevant, is extracted hereunder:-
1.(1) This order shall apply to the following Courts, namely:-
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) Other Courts:
Provided …………
(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 liquidated demand in money payable by the defendant, with or without interest arising, –
(i) on a written contract; 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
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.
A cursory look at these rules show that these rules apply to suits to recover a debt or liquidated demand in money arising on a written contract, or on an enactment or on a guarantee, apart from suits upon bills of exchange, hundies and promissory notes.
5. Sri. P.V. Umashankar Rao, learned Counsellor the petitioner submits that inasmuch as the respondent Nos. 2 & 3 have executed an undertaking and acknowledgment of dues promissing to pay, it amounts to a written contract within the meaning of Sub-rule (2) of Rule 1 of Order 37 C.P.C. and therefore, the suit is maintainable under summary procedure. I cannot accept this submission.
6. Sub-rule (2) of Rule 1 of Order 37 C.P.C. contemplates a debt or liquidated demand arising on a written contract or on an enactment or on a guarantee and they are only covered by this Sub-rule apart from suits upon bills of exchange, hundies and promissory notes. Turning to the facts of this case, inasmuch as the suit to recover the amount is not based on a written contract or on an enactment or a guarantee, this rule has no application and the suit cannot be filed under summary procedure. The contention of the learned Counsel for the petitioner that the undertaking dated 23-2-1987 should be treated as a written contract also cannot be accepted, inasmuch as this undertaking is not a written contract where under, cloth was supplied and the liability incurred, but it is only an acknowledgment of the balance of amount payable to the petitioner under an oral contract to supply cloth on credit basis, which was entered into between the parties much earlier. Therefore, the suit against the main defendants-respondent Nos. 1 and 2 cannot be filed under summary procedure, though it appears the third respondent alone can be proceeded in view of the guarantee she has offered under the said guarantee letter, but on a deeper probe even she cannot be proceeded with, firstly for the reason that the guarantee must be in respect of a debt or liquidated money referred to in Rule 1 of Order 37 C.P.C. and secondly when the suit is not maintainable against the principal debtors under this chapter, it is equally not maintainable against the third respondent, who is a mere guarantor. The lower Court has rightly placed reliance upon a decision reported in West Bengal Decorating Company v. Damodar Das, with which I respectfully agree for the proposition that a suit for recovery of price of goods sold and delivered which is not founded on a written contract cannot be said to have arisen under any enactment or on any guarantee.
8. For all these reasons, the revision petition is devoid of merits and is accordingly, dismissed. No costs.