ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my professor (DR. SAK AZAD)
who gave me the golden opportunity to do this wonderful project which also helped me in
doing a lot of Research and i came to know about so many new things I am really thankful to
her

Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing
this assignment within the limited time frame.

SHIVAM SOLANKI
5 years Integrated BBA LLB SEC
A (8THSemester)
Reg. No. –1841801035
S‘O’A National Institute of Law
(SNIL) S‘O’A University,
Odisha, India
 INTRODUCTION

Summary suit or summary procedure is given in order XXXVII of the Code of Civil
Procedure, 1908. Summary procedure is a legal procedure used for enforcing a right that
takes effect faster and more efficiently than ordinary methods. Its object is to summarise the
procedure of suits in case the defendant is not having any defence.

A summary suit can be instituted in High Courts, City Civil Courts, Courts of Small Causes
and any other court notified by the High Court. High Courts can restrict, enlarge or vary the
categories of suits to be brought under this order.

Summary suits can be instituted in case of certain specified documents such as a bill of
exchange, hundies, and promissory notes. Summary procedure is applicable to recover a debt
or liquidated demand in money arising on a written contract, an enactment or on a guarantee.
 WHAT IS A BILL OF EXCHANGE?

A bill of exchange is a written unconditional order by one party (the drawer) to another (the
drawee) to pay a certain sum either immediately or on a fixed date for payment of goods
and/or services received. If the sum is to be paid immediately it is called a sight bill. Term
bill is the bill of exchange where the sum is to be paid on a fixed date.

Hundies

A Hundie is an unconditional order in writing made by a person directing another to pay a

certain sum of money to a person named in the order. It is a financial instrument evolved on
the Indian sub-continent and used for trade and credit purposes.

Promissory notes

A promissory note contains an unconditional promise to pay a certain sum to the order of a
specifically named person or to bearer—that is, to any individual presenting the note. A
promissory note can be either payable on demand or at a specific time.

Liquidated demand in money

Liquidated demand is a demand for a fixed sum e.g., a debt of Rs. 50. It is distinguished from
a claim of unliquidated damages, which is a subject of the discretionary assessment by the
court.

Institution of summary suits

In order to institute a suit under summary procedure, the nature of suit must be among the
following classes: -

Suits upon bill of exchange, hundies and promissory notes

Suits for recovering a debt or liquidated demand in money, with or without interest, arising: -

• On a written contract, or
• On an enactment (the recoverable sum should be fixed in money or it should be in the
nature of a debt other than a penalty), Or
• On a guarantee (here the claim should be in respect of a debt or liquidated demand
only)
A summary suit is instituted by presenting a plaint in an appropriate civil court.
Contents of plaint for summary procedure

Apart from facts about the cause of action, the plaint must contain a specific affirmation that
the suit is filed under this order. It should also contain that no such relief has been claimed
which does not fall under the ambit of rule XXXVII of the CPC. In the title of the suit,
following inscription must be there under the number of the suit: -

“(Under Order XXXVII of the Code of Civil Procedure, 1908)”

Procedures after institution of Summary suit

Under summary procedures, the defendant has to get the leave to defend from the court. A
burden is placed upon the defendant to disclose the facts sufficient to entitle him to defend in
the application for leave to defend.

Detailed procedures

• After institution of a summary suit, the defendant is required to be served with a copy
of the plaint and summons in the prescribed form.
• Within 10 days of service of summons, the defendant has to enter an appearance.
• If the defendant enters an appearance, the plaintiff shall serve on the defendant a
summons for judgment.
• Within 10 days of service of such summons, the defendant has to apply for leave to
defend the suit.
• Leave to defend may be granted to him unconditionally or upon such terms as may
appear to the Court or Judge to be just.
• If the defendant has not applied for leave to defend, or if such an application has been
made and refused, the plaintiff becomes entitled to the judgment forthwith.
• If the conditions on which leave was granted are not complied with by the defendant,
then also the plaintiff becomes entitled to judgment forthwith.
• Sub-rule (7) of Order 37 provides that save as provided by that order the procedure in
summary suits shall be the same as the procedure in suits instituted in an ordinary
manner.
CAN A SUMMARY SUIT BE TRIED AFTER THE INSTITUTION OF AN
ORDINARY SUIT ON THE SAME CAUSE OF ACTION?

According to section 10 of the CPC, a court cannot proceed with the trial of a suit in which
the matter in issue is also directly and substantially in issue in a previously instituted suit
between the same parties. It is called the principle of res sub-judice. The provision contained
in the section is mandatory and no discretion is left with the court.

However, the word trial, in this case, has not been used in its widest sense. The concept of res
sub-judice is not applicable to subsequently instituted summary suits.

The Court or the Judge dealing with the summary suit can proceed up to the stage of hearing
the summons for judgment. Judgment can also be passed in favour of the plaintiff if: -

(a) The defendant has not applied for leave to defend or if such application has been made
and refused, or,

(b) The defendant who is permitted to defend fails to comply with the conditions on which
leave to defend is granted.

When a leave to defend is granted

The following principles are applicable in the matter of grant or refusal of leave to defend in
summary suits:

(a) If the defendant satisfies the court that he has a substantial defence, the defendant is
entitled to an unconditional leave of appeal.

(b) If the defendant raises triable issues indicating that he has a fair or reasonable defence,
although not a positively good defence, the defendant is ordinarily entitled to unconditional
leave to defend.

(c) Even if the defendant raises triable issues, if a doubt is left with trial judge about the
defendant’s good faith, conditional leave to defend is granted.

(d) If the defendant raises a defence which is plausible but improbable, the trial judge may
grant conditional leave to defend with conditions as to time or mode of trial, as well as
payment into court, or furnishing security.

(e) If the defendant has no substantial defence and raises no genuine triable issue, then no
leave to defend is granted.
(f) Where part of the amount claimed by the plaintiff is admitted by the defendant to be due
from him, leave to defend shall not be granted unless the amount so admitted to be due is
deposited by the defendant in Court.

Decree in summary suits

The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned in plaint,
together with interest and cost in following conditions: -

• If the defendant does not enter an appearance (ex parte decree)

• If the defendant has not applied for leave to defend
• If the defendant has applied for leave to defend but it is refused
• If the leave to defend is granted then the suit proceeds as an ordinary suit and
decree is granted as per the CPC.
 CONCLUSION

The summary procedure under order XXXVII is a legal procedure used for faster and more
effective litigation for commercial matters. Its object is to summarize the suits in cases where
a defendant is not equipped with any defense. However, there are special circumstances
where the defendant is granted leave to defend. Nevertheless, for a leave to be granted there
are several pre-requisites to be followed by the defendant. In case of the contrary, the leave to
defend is rejected, and the plaintiff gets an edge in the case. Thus, a summary procedure is a
productive solution to help prevent an unwanted prolonged lawsuit.