SUMMARY SUIT

Summary procedure is a legal procedure used for enforcing a right that takes effect faster and
more efficiently than ordinary methods.

Audi Alteram Partem, nobody should be condemned unheard, is not violated as  this
procedure is only used in cases where the defendant has no defence and is applicable to only
limited subject matters.

Object- expeditious hearing and disposal of the suit and to prevent unreasonable obstruction
by the defendant who has no defence or a frivolous and vexatious defence and to assist
expeditious disposal of cases.

to give impetus to commerce and industry by inspiring confidence in commercial population

that their causes in respect of money claims of liquidating amounts (ascertained amount)
would be expeditiously decided and their claims will not hang on for years blocking their
money for a long period. 

Rule 1- Can be instituted in HC, City Civil Courts, Courts of Small Causes and any other
court notified by HC. High Courts can restrict, enlarge or vary the categories of suits to be
brought under this order.
1(2)- To institute summary suit, the nature must be-

 Suits upon BOE, hundies and promissory notes (Rule 5- power to order bill, etc to
be deposited or stay proceedings till plaintiff gives security for the cost)
 Suits for recovering a debt or liquidated demand in money, with or without interest,
arising-

1. On a written contract, or
2. 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
3. On a guarantee (here the claim should be in respect of a debt or liquidated demand
only)
  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.
 A Hundi 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.
 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.

Rule 2- Procedure-

 Institution of summary suit - 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.
 Served a copy of plaint and summons to defendant.
 Within 10 days of service of summons, the defendant has to enter an appearance.
 appeared, the plaintiff shall serve on the defendant a summons for judgment.
 Within 10 days, apply for leave to defend.
 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
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. 

Rule 4- Setting aside the decree- Defendant has not only to show special
circumstances which prevented him from appearing but also facts which would entitle him
to leave to defend.
 For setting aside ex parte decree in an ordinary suit, the defendant has to satisfy the court
with sufficient cause for his non-appearance. In summary suits, the ex parte decree may be
set aside if the defendant shows special circumstances.

There was a strike and all the buses were withdrawn and there was no other mode of
transport. This may constitute “special circumstances”. But if he were to plead that he missed
the bus he wanted to board and consequently he could not appear before the Court. It may
constitute a ‘sufficient cause’, but not a ‘special circumstance’.

When a leave to defend is granted-

 Satisfies court that he has a substantial defence.

 Raises triable issues indicating that he has a fair or reasonable defence, although not a
positively good defence.
 Even if the defendant raises triable issues, if a doubt is left with about the defendant’s
good faith, conditional leave to defend is granted.
 If the defendant raises a defence which is plausible but improbable, may grant
conditional leave to defend with conditions as to time or mode of trial, payment into
court, or furnishing security.
 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.

Rule 6- Recovery of cost of noting non-acceptance of dishonoured bill or note- same

remedies

Rule 7- Except as provided in the order, the procedure shall be the same as the procedure in
an ordinary suit.
  Summary suits Ordinary suits
 

Only for suits related to bill of exchange,

Matter hundies, promissory notes and contracts, For any matter of civil nature.
enactments, guarantees of specified nature.

Applicability of res Not applicable if a summary suit can be Applicable. One cannot file another
 suit on the matter directly and
filed on the matter directly and substantially
sub-judice substantially in issue in a previous
in issue in a previous ordinary suit.
suit.
The right of the
The defendant will get a chance to defend The defendant has a right to defend
defendant to
only if leave to defend is granted. the averments made in the suit.
defend

In case of non-appearance of the defendant Multiple summonses are served to the

Ease of getting
or refusal of leave to defend, the plaintiff is defendant when ex parte decree is
decree
entitled to decree forthwith. passed.

More strict and stringent. Special

Setting aside ex Sufficient cause for non-appearance
circumstances for non-appearance has to be
parte decree needs to be shown.
shown.

Difference between

1. IDBI Trusteeship Services Ltd v. Hubtown Ltd, 2016- 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.
2. Precision Steel & Engg. Works v. Prem Deva Niranjan Deva Tayal- Mere
disclosure of facts, not a substantial defence is the sine qua non. What is a substantial
defence depends upon facts and circumstances of each case.

Even if the defendant raises triable issues, if a doubt is left about the defendant’s good
faith or the genuineness of the triable issues, or if they are plausible but not probable, the
trial judge may impose conditions both as to time or mode of trial, as well as payment
into court or furnishing security.

3. Uma Shankar Kamal Narain v. MD overseas limited- SC- reiterated the principles
to be adhered to in the case of a leave to defend summary suit relating to the
dishonoured cheques. Held that “Unconditional leave to defend a suit shall not be
granted unless the amount as admitted to be due by the Defendant is deposited in
Court.”