JUDGMENT - F.I. REBELLO, J.:---The plaintiff has filed the suit for balance of unpaid amount and also for recovery of Sales Tax dues which he has paid to the Government. On Summons for judgment being taken out the defendants have put in appearance and have filed their reply. 2. In the particulars of claim annexed to the plaint, the plaintiff has prayed for the value of excess goods supplied by the plaintiff. Interest thereon at 18% per annum. Further interest by way of penalty at 24% per annum on certain amount as also the amounts paid by way of Sales Tax. The defendants have filed their reply. It is their contention that the suit as filed does not disclose any cause of action against the defendants nor is maintainable as a Summary Suit under the provisions of Order XXXVII of the Code of Civil Procedure. 3. The plaintiff contends that the purchase order by the defendants, the Invoices and the acceptance of the material constitute an agreement and consequently the suit as filed is maintainable as a Summary Suit. In so far as the Sales-tax is concerned, learned Counsel has relied on the provisions of section 8 of the Central Sales Tax Act. It is his contention that in terms of the said section a Dealer has to pay Sales-tax on his turn over. In terms of Rule 9-C of the Central Sales-tax (Bombay) Rules, 1957 a Dealer is prohibited from collecting from a Purchaser any tax which he himself has not to pay to the Government. Reading section 8 of the Central Sales-tax Act with Rule 9-C of the Central Sales-Tax (Bombay) Rules it is his contention that such a registered Dealer is entitled to claim from the purchaser the Sales-tax dues. It is his further contention that though there is no specific term in the contract it has to be read as implied term in view of the aforesaid provisions of the Central Sales-tax Act and the Rules framed thereunder. In so far as the charges for excess payment are concerned it is pointed out that from the purchase order quantities were approximate quantities. Merely because the weight was extra would not mean that the defendant is not liable to pay for the said extra weight as the items supplied were of the price as sought for by the defendants. In so far as the charges for excess payment are concerned it is pointed out that from the purchase order quantities were approximate quantities. Merely because the weight was extra would not mean that the defendant is not liable to pay for the said extra weight as the items supplied were of the price as sought for by the defendants. In these circumstances it is contended that the suit is maintainable as a Summary Suit. In so far as interest is concerned, it is pointed out that in terms of the Invoices itself interest is payable at 24% per annum and the other interest is on account of delay in paying Central Sales-tax for want of C-Form by the defendants which he has agreed to in terms of the Purchase Orders. 4. A suit as a Summary Suit is maintainable if it falls within the four corners of Order XXXVII, Rule 2 of the Code of Civil Procedure. In other words it must be based on an agreement or for a liquidated amount or based on any enactment. In the instant case the two sums which are claimed is one for the excess amount and the other of failure by the defendants to produce the C-Form as per the purchase order. The first contention which has to be considered is whether the plaintiff pursuant to an enactment is liable to recover the Sales-tax from the defendants. Reliance placed on section 8 of the Central Sales-tax Act and Rule 9-C of the Central Sales-tax Rules to my mind is misplaced. All that section 8 contemplates is that the registered Dealer when he sells goods has to pay on his turnover tax quantified at a particular percentage. If the C-Form is given then the Registered Dealer need not pay the Sales-tax as the tax then payable by the person who has issued C-Form, who himself is a registered Dealer. It is not, therefore, as if the Registered Dealer is bound to claim from the Purchasers the Sales-tax. On many occasions he may choose not to collect the Sales-tax, but pay from his own turnover. This is not prohibited under the provisions of the Sales-tax Act or the Rules framed thereunder as all that it is provided is that it is the dealer who will have to pay the tax at a particular percentage. On many occasions he may choose not to collect the Sales-tax, but pay from his own turnover. This is not prohibited under the provisions of the Sales-tax Act or the Rules framed thereunder as all that it is provided is that it is the dealer who will have to pay the tax at a particular percentage. Therefore, in my opinion the claim for Sales-tax dues is not based on any enactment. The next contention then urged was that it was an implied term of the contract. Order XXXVII, Rule 2 provides that it must be an agreement in writing. An implied term of the contract would contemplate that though there is no agreement in writing from the agreement it is possible to carve out certain additional terms and conditions. Prima facie this would also not fall under Order XXXVII, Rule 2 of the C.P.C. 5. In so far as payment for the additional goods supplied it is true that the defendant had placed orders on approximation. The plaintiff has supplied the goods beyond the approximate weight. The question today is not whether the plaintiff can claim from the defendants. The question is whether it is based on any agreement between the parties and whether such an agreement would fall under Order XXXVII, Rule 2. Prima facie in my opinion that also would not tantamount to any agreement between the parties. 6. Having said so I am of the opinion that the suit as filed would not fall within the four corners of Order XXXVII, Rule 2 of C.P.C. and consequently defendants are entitled to unconditional leave to defend. Hence unconditional leave is granted to the defendants to defend the suit. Suit transferred to the list of commercial causes. The defendants shall file their written statement within 12 weeks from today. The parties will file affidavit of documents within eight weeks thereafter. Inspection and discovery will be completed within eight weeks thereafter. Summons for judgment disposed of accordingly. No order as to costs. Order accordingly.