JAMIA MILLIA ISLAMIA

CIVIL PROCEDURE CODE ASSIGNMENT

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PROJECT-PROFILE

“SUMMARY

PROCEDURE”
ORDER XXXVII

SUBMITTED TO- SUBMITTED BY-

Dr. Eakramuddin Malik Sir Azeem Mian

Assistant Professor B.A.LL. B(Hons) Regular

JMI IVth Year, 8th Sem

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ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my teacher Dr.

EakraMuddin Malik Sir for his exemplary guidance, monitoring and constant encouragement

throughout the course of this assignment. The blessing, help and guidance given by his time to

time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my friends for cordial

support, valuable information and guidance, which helped me in completing this task through

exhaustive research.

AZEEM MIAN!
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TABLE OF CONTENT

▪ Introduction.
▪ Nature.
▪ Object.
▪ Kind of suit.
▪ The constitutionality.
▪ Amendment of plaint.
▪ Scope and extent of applicability.
▪ The procedure of summary suits.
▪ Analyzing summary suit.
▪ Difference between a summary suit and original suit.
▪ Special circumstances meaning.
▪ Special circumstances v. sufficient cause.
▪ Analyzing what constitute no defence.
▪ Principles.
▪ Why summary suits.
▪ Conclusion.
▪ Bibliography.
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INTRODUCTION

Summary suit or summary procedure is provided under order XXXVII of the Code of Civil
Procedure, 1908. The summary suit is a unique legal procedure used for enforcing a right in an
efficacious manner as the courts pass judgement without hearing the defence.

While this prima facie would appear to be violative of the cardinal principle of natural justice,
Audi Alteram Partem, nobody should be condemned unheard, this procedure is only used in cases
where the defendant has no defence and is applicable to only limited subject matters.

Therefore, this gives rise to an interesting question which forms the crux of this paper: What
amounts to having no defence? This question is central to the practical application of Order.
XXXVII and has been analyzed in this paper after considering a catena of recent judgments and
provisions under this order.

This assignment also analyzes and highlights the Salient features of summary suits by juxtaposing
and comparing summary suits with ordinary suits. This would help one appreciate the unique
position summary suits hold in the civil justice system and the problems summary suits intend to
redress.
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NATURE

A summary suit under order XXXVII of the Code of Civil Procedure is a legal procedure used for
enforcing a right that takes effect faster than ordinary suits as unlike in ordinary suits the courts do
not hear the defence.

However, it does not violate the principles of Audi Alteram Partem, nobody should be condemned
unheard as it is used only in certain limited cases (elaborated below under scope) where the
defendant has no tenable defence, which is a complex question of law and fact and has been
elaborately analyzed subsequently.

OBJECT

The object underlying the summary procedure is to ensure an expeditious hearing and disposal of
the suit and to prevent unreasonable obstruction by the defendant who has no defence or a frivolous
and vexatious defence1 and to assist expeditious disposal of cases2.

The Gujarat High Court in outlining the object of summary suits opined that the sheer purpose of
enacting Summary Suits is 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.3

1
Kocharabhai ishwarbhai patel v. Gopal bhai C patel AIR 1973 Gujrat 29 (31)
2
Bankyag B G Agarawal v. Bhagwanti Mehji 2001 (1) Bom LR 823 (DB)
3
Navinchandra Babulal Bhavsar v. Bachubhai Dhanabhai Shah AIR 1969 Gujrat 124 (128) DB.
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KIND OF SUIT

1. Suits upon bill of exchanges, hundies or promissory notes;

2. Any suit filed by the plaintiff for recovery of a debt/ money payable by the defendant
according to a written contract, or
3. In case of an enactment wherein the amount to be recovered is a fixed amount of money,
or a debt other than a penalty, or a guarantee, where the claim against the principal is in
respect of a debt or for money only.

The object behind provision of summary procedure was to ensure a speedy trial for recovery of
money in cases where the defendant has no defence and thus any unreasonably delay sought to be
caused is eliminated.

THE CONSTITUTIONALITY

The provision of this code, prescribing for the special trial of certain classes of suits, and by certain
courts, are not repugnant to Article 14 of the Constitution, as they are based on reasonable
classifications4. Rule 8 made under the Bombay Rents Hotels and Lodging Hall Rates (Controls)
Act 1947 provides that ejectment suits may be instituted in accordance with order XXXVII is not
ultra vire.5

• Promissory Notes, Bills of Exchange and Hundis.

The order applies on the promissory notes, bills of exchange and hundis. The Negotiable
Instruments Act under Section 4 and 5 define a ‘promissory note’ and a ‘bill of exchange’.
However, neither the Negotiable Instruments Act nor the Code defines the term Hundi.
• Account Payees Cheques.
The rule is applicable to all suits on bills, hundis and promissory notes, whether they are
negotiable or not. Thus, a suit based on a crossed cheque bearing an endorsement ‘account
payee only’ can be filed under the summary procedure.6

4
CF Khemchand v. Hari AIR 1979 Del 7.
5
Ramkarandas v. Bhagwaandas AIR 1965 SC 1144.
6
Tailors Priya v. Gulabchand AIR 1963 Cal 36.
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• Debt or Liquidated Demand.

A debt is a present obligation to pay an unascertainable sum of money whether the amount
is payable in presenta or in future. The former is a debt owing and the latter is a debt due.
However, a sum payable upon a contingency does not become a debt until the said
contingency has happened.7
‘Liquidated demand’ means an amount susceptible of being made certain by mathematical
calculation from factors in possession or knowledge of the party to be charged. A claim of
damages in percentage is a liquidated amount within the meaning of order XXXVII.8

AMENDMENT OF PLAINT

In a suit under Order XXXVII on promissory note, amendment was sought to introduce additional
facts and documents, to take the defendant liable as guarantors. It was held that on the particular
facts of the case amendment (though belated) should be granted.9

SCOPE AND EXTENT OF APPLICABILITY

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.

As explained above that the object of Summary suits is to aid commercial transactions by a swift
redressal mechanism these suits can be instituted only in case of certain specified documents.

The documents such as a bill of exchange, hundies, and promissory notes10 and 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, where the sum sought

7
Keshoram Industries v. Gheesi AIR 1999 Raj 69.
8
Rjinder Kumar Khanna v. Oriental Insurance Co. AIR 1990 Del 278.
9
Dena Bank v. Gautam Ratilal Shah AIR 1988 Bom 1.
10
Order. XXXVII. R1(2)
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to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or on a
guarantee, where the claim against the principal is in respect of a debt or liquidated demand only11.

THE PROCEDURE OF SUMMARY SUITS

Rules 2 and 3 provide the procedure of summary suits. Rule 2 provides that after the summons of
the suit has been issued to the defendant, the defendant must appear and the plaintiff will serve a
summons for judgment on the defendant. The defendant is not entitled to defend a summary suit
unless he enters an appearance. In default of this, the plaintiff will be entitled to a decree which
will be executed forthwith.

Rule 3 prescribed the mode of service of summons and leave to defend. The defendant must apply
for leave to defend within ten days from the date of service of summons upon him and such leave
will be granted only if the affidavit filed by the defendant discloses such facts as may be deemed
sufficient to entitled him to defend. Such leave may be granted to the defendant unconditionally
or upon such terms as may appear to the court or judge to be just.12

Leave to defend, however, should not be refused unless the court is satisfied that the facts disclosed
by the defendant do not indicate to be put by him is frivolous and vexatious. If a part of the amount
claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend should
not be granted unless such admitted amount is deposited buy him in the court.13

At the hearing of such summons for judgment, if the defendant does not apply for leave to defend
or such leave us refused, the plaintiff is entitled to a decree forthwith. The court or judge may. For
sufficient cause shown by the defendant, excuse the delay of the defendant in entering an
appearance or in applying for leave to defend the suit. No hard and fast rule can be laid down as
to in what cases leave to defend can be granted. Each case must be decided on its own facts and
circumstances and the discretion must be exercised judicially and in consonance with the principles
of natural justice which form the foundations of our laws.14

11
Order. XXXVII. R.1(2)b
12
Mechelec Engineer and Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687: AIR 1977 SC 577.
13
Ibid.
14
Ibid; see also, Santosh Kumar v. Bhai Mool Singh, AIR 1958 SC 321: 1958 SCR 1211; HDFC V. Gautam Kumar,
(2012) 5 SCC 604; TVC Skyshop Ltd. V. Reliance Communication and Infrastructure Ltd., (2013) 11 SCC 754:
(2014) 1 SCC (Civ) 234.
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ANALYZING SUMMARY SUITS

Types of interpretations to be applied

As the purpose of summary suits is to act as a welfare mechanism to achieve justice in an expedient
manner, the language under Order. XXXVII is to be interpreted liberally, which has been reflected
in numerous judgments.

An illustrative example would be the phrase written contracts that have been given the widest
possible interpretation as even Invoices/Bills are written contract within the contemplation of
Order XXXVII KIG Systel Ltd v. Fijitsu ICIM Ltd.15

DIFFERENCE BETWEEN A SUMMARY SUIT AND ORIGINAL SUIT

The major difference between ordinary suits and summary suits is that in the later the defendant
will get a chance to defend himself only if leave to defend is granted.

Unlike ordinary suits, summary suits are restricted to matters related to bills of exchange,
promissory notes and contracts, enactments, guarantees of specified nature. Interestingly Res
Judicata is not applicable to summary suits, i.e. summary suits can be filed on the matter directly
and substantially in issue in a previous ordinary suit.

In summary suits in the case of non-appearance of the defendant, a decree in favour of the plaintiff
is passed easily, whilst in ordinary suits usually, multiple summonses are served and only then an
ex parte order is passed.

Therefore, in Summary, suits setting aside an ex parte decree is stricter and more stringent and
special circumstances for non-appearance need to be set out, while in ordinary suits only sufficient
cause needs to be shown. The difference between special circumstances and sufficient cause has
been elucidated below.

15
KIG Systel Ltd v. Fijitsu ICIM Ltd AIR 2001 Del 357.
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SPECIAL CIRCUMSTANCES MEANING

The expression “special circumstances” is not defined in Code of Civil Procedure nor is it capable
of any precise definition by the court because problems of human beings are varied and complex.
In its ordinary dictionary meaning, it connotes something exceptional in character, extraordinary,
significant and uncommon. It is an antonym of common, ordinary or general. It is neither
practicable nor advisable to enumerate such circumstances. The question can be decided on the
facts and circumstances of each and no role of universal application can be laid down.16

SPECIAL CIRCUMSTANCES V. SUFFICIENT CAUSE

The two terms have been lucidly juxtaposed in Karumili Bharathi v. Prichikala
Venkatchalam17. The reasons offered by the defendant to explain the special circumstances should
be such that he had no possibility of appearing before the Court on a relevant day.
For instance, 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 the defendant 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’. Thus a ‘special
circumstance’ would take with it a ‘cause’ or ‘reason’, which prevents a person in such a way that
it is almost impossible for him to attend the Court or to perform certain acts which he is required
to do.

Thus the ‘reason’ or ‘cause’ found in “special circumstances” is stricter or more stringent than in
“sufficient cause” and depends on the facts of each case.

16
Rajni Kumar v. Suresh Kumar Malhotra, (2003) 5 SCC 315 at p. 318; TVC Skyshop Ltd. V. Reliance
Communication and Infrastructure Ltd. (2013) 11 SCC 754: (2014) 1 SCC (Civ) 234.
17
Karumili Bharathi v. Prichikala Venkatchalam 1999 (3) ALD 366
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ANALYZING WHAT CONSTITUTES NO DEFENCE

As mentioned above, to proceed with summary suits the defendant must have no tenable defence.

What constitutes conditions when a leave to defend must be granted has been dealt with
recently(2016) by the Supreme court in IDBI Trusteeship Services Ltd v. Hubtown Ltd18 held that
the position in law with respect to granting of leave to defend a summary suit is that the trial Judge
is vested with a discretion which has to result in justice being done on the facts of each case.
The Court explained that at one end of the spectrum is unconditional leave to defend, granted in
all cases which present a substantial defence. However, it must be borne in mind that on the other
end of the spectrum are frivolous or vexatious defences, which should result in a refusal of leave
to defend.

In between these two extremes are various kinds of defences raised which yield conditional leave
to defend in most cases. The judgement lays out principles that have been summarized below.

▪ If the defendant raises triable issues indicating that he has a fair or reasonable defence,
although not a positively good defence, the plaintiff is not entitled to sign the judgment, and
the defendant is ordinarily entitled to unconditional leave to defend;

This reiterates the position laid out in Precision Steel & Engg. Works vs Prem Deva Niranjan
Deva Tayal19 where it was held that 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 with the trial judge 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.

Moreover, recently in Uma Shankar Kamal Narain v. MD overseas limited20, the Supreme court
upheld previous judgements like Southern Sales and Sevices v. Sauermilch Design and Handles

18
IDBI Trusteeship Services Ltd v. Hubtown Ltd, 2016 SCC OnLine SC 1274
19
Precision Steel & Engg. Works vs Prem Deva Niranjan Deva 1982 Air 1518
20
Uma Shankar Kamal Narain v. MD overseas limited 2007 4 SCC 133
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GMBH21, and the Sunil Enterprise v. SBI,22 and reiterated the principles to be adhered to in the
case of a leave to defend summary suit relating to the dishonoured cheques.

It has been 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.”

PRINCIPLES

In Kiranmoyee Dassi v. J. Chatterjee23, the High Court of Calcutta laid down the following
principles relating to suits of a summary nature:

i. If the defendant satisfies the court that he has a good defence to the claim on its
merits, the plaintiff is not entitled to leave to sign judgment and the defendant
is entitled to unconditional leave to defend.
ii. If the defendant raises a triable issue indicating that he has a fair or bona fide
or reasonable defence although not a positively good defence, the plaintiff is
not entitled to sign judgment and the defendant is entitled to unconditional leave
to defend.
iii. If the defendant discloses such facts as may be deemed sufficient to entitle him
to defend, that is to say, although the affidavit does not positively and
immediately make it clear that he has a defence yet, shows such a state of facts
as leads to the inference that at the trial of the action he may be able to establish
a defence to the plaintiffs claim, the plaintiff is not entitled to judgment and the
defendant is entitled to leave to defend but, in such a case, the court may in its
discretion impose conditions as to the time or mode of trial but not as to
payment into court or furnishing security.

21
Southern Sales and Sevices v. Sauermilch Design and Handles GMBH 1982 AIR 1518
22
Sunil Enterprise v. SBI, (1998) 5 SCC 354
23
AIR 1949 Cal 479: (1994) 49 CWN 246: ILR (1945) 2 Cal 145.
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iv. If the defendant has no defence or the defence set up is illusory or sham or
practically moonshine then ordinarily the plaintiff is entitled to leave to sign
judgment and the defendant is not entitled to leave to defend.
v. If the defendant has no defence or the defence is illusory or sham or practically
moonshine then although ordinarily the plaintiff is entitled to leave to sign
judgment, the court may protect the plaintiff by only allowing the defence to
proceed if the amount claimed is paid into court or otherwise secured and give
leave to the defendant by enabling him to try to prove a defence.24

WHY SUMMARY SUITS

The summary procedure prevents unreasonable obstructions by the defendant who has no defence.
It assists expeditious disposal of cases. Unless the defendant is able to demonstrate that he has a
substantial defence in his case, the plaintiff is entitled to a judgment forthwith. In the event of ex
parte decree in summary suit, the defendant is required to show more strict and stringent causes.
This ensures that ex parte decree is not set aside in an ordinary manner.

The summary procedure is generally resorted to in a class of cases where speedy decisions are
desirable in the interest of commercial transactions. Summary suits are easier to establish for the
plaintiff and tougher for the defendant to defend than ordinary suits. By and large, the summary
procedure ensures that the defendant does not prolong the litigation and prevent the plaintiff from
obtaining a decree by raising untenable and frivolous defences.25

24
Ibid, at p. 486 (AIR): at p. 253 (CWN); approved in Mechelec Engineers and Manufactures v. Basic Equipment
Corp., (1976) 4 SCC 687; Sunil Enterprises v. SBI, (1998) 5 SCC 354; State Bank of Hyderabad v. Rabo Bank, (2015)
10 SCC 521: (2016) 1 SCC (Civ) 199; IDBI Trusteeship Services Ltd. V. Hubtown Ltd., (2017) 1 SCC 568: (2017) 1
SCC (Civ) 386.
25
http://lexquest.in/understanding-summary-suit/ (Date of visit this site is 02/02/18 and time is 18:10 PM IST)
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CONCLUSION

It is humbly opined that summary suits act like an ingenious solution to help prevent unreasonable
obstructions by a defendant who has no tenable defence.

Summary suits would be beneficial to businesses as unless the defendant is able to demonstrate
that he has a substantial defence, the plaintiff is entitled to a judgment.

Order XXXVII engineers an appropriate mechanism that ensures that the defendant does not
prolong the litigation especially as in commercial matters time is of the essence and helps further
the cause of Justice.
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BIBLIOGRAPHY

• BOOKS REFFERED

1. Anil Nandwani, Law of Civil Procedure in India, 1st Ed. 2006, Allahabad Law
Agency Faridabad.
2. C.K. Takwani, Civil Procedure, 6th Ed. 2003, Eastern Book Company, Lucknow.
3. M.P. Jain, The Code of Civil Procedure, 1st Ed. 2004, Wadhwa Company,
Nagpur.
4. Sarkar, Code of Civil Procedure, 10th Ed. 2002, Vol. 2, Wadhwa Company,
Nagpur.

• ONLINE SOURCES
1. Lawctopus.
2. Academia.
3. Ipleaders
4. SCC Online
5. Manupatra

• STATUTES REFFERED
1. Civil Procedure Code, 1908.
2. Limitation Act, 1963
3. Negotiable Instrument Act,1881
4. Constitution of India.
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THANK
YOU!