summary suit

The civil remedy for the recovery of money is by way of institution of a suit in a court of appropriate jurisdiction. The suit can be instituted under Order XXXVII of the said code, in case there is an admitted liability in the form of a promissory note, hundies etc. Order XXXVII is a summary procedure.

Jurisdiction:

Suit can be instituted at the place

• where defendant resides;
• where the defendant carries on business or personally works for gain; or
• where the cause of action wholly or partly arises.

After determining this territorial jurisdiction, pecuniary jurisdiction is  to be determined. The value of the suit has to be considered for this purpose. Based on the value, the suit can be filed either in the District Court or the High Court.

Limitation:

The suit can be filed within 3 years from the date of cause of action having arisen. The said period of limitation cannot be condoned.

Institution of Suits and Essentials of Plaint:

Order 37 is a summary procedure relying on the fact that there is an unambiguous written admission of debt. The Order applies to the following class of suits:

• Suits upon bills of exchange, hundies and promissory notes
• 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 a written contract, or
• on an enactment wherein the amount to be recovered is a fixed sum of money, or a debt other than a penalty, or
• guarantee, where the claim against the principal is in respect of a debtor for liquidated demand only.
• suit for recovery of receivables instituted by any assignee of a receivable

A suit is instituted by way of a plaint. Plaint is the description of facts of the case and the exact amount being claimed along with any interest. In the case of a summary suit, it should be specifically averred that the suit has been filed under Order 37, that no other claim has been made other than what lies within the ambit of order 37.

Documents:

A plaint is  accompanied by the supporting documents viz,

• written contract.
• particulars of claim; and
• correspondences, if any

This plaint is required to be proved by way of an accompanying affidavit and an appropriate verification of the facts.

Court fee: 

Court fee as per the schedule is required to be paid by plaintiff. A suit shall be returned in case the same is not filed along with the court fee.
Once the said plaint is filed in court, the same shall be numbered by the  court.

Proceedings After Institution:

Issuance of summons: The court after examining the plaint and its admissibility shall issue a summons which is required to be duly served upon the Defendant/s. The summons for judgment is required to be filed within 10 days from the date of service.

Leave to defend:  Defendant is obliged to enter appearance within 10 days of service of summons. After entering an appearance, defendant shall be required to file its Leave to Defend as in a summary suit the  defendant does not have a right to contest till it proves that there is a triable dispute and that the debt is not an admitted debt/liability.

Written statement: Only after the hearing on Leave to Defend and favourable order having been passed in favour of the defendant, he is entitled to file the  written  statement within the timeline prescribed.

Trial and arguments: Trial commences hereinafter and after the final arguments the decree is passed.

Decree: In case the defendant fails to enter appearance within 10 days of service of summons, or in case even after appearance the Defendant is not able to make out a case for deserving a Leave to Defend, the suit is decreed in favour of the Plaintiff.

Where the matter concerns penalties or any other uncertain amount, one cannot file a summary suit.

When there is no written contract/agreement between the parties, then a normal suit for recovery has to be instituted.

 Execution of Decree:

Decrees can be executed by way of an Execution Application filed in the jurisdiction of the place where the assets of the Defendant/s are situated. In case of non-satisfaction of the decree, the code also provides for imprisonment for the defendant/s.