Summary suit

Summary Suit is the special suit under

CPC which provides short cut procedure
for enforcing a right. Under this suit court
has power to pass judgements without
hearing the defendant. Although it
appears to be violative of the principle of
Natural Justice, Audi Alteram Partem, this
procedure is only applicable to limited
cases where the defendant does not have
a defence. Summary Suit is embedded in
Order XXXVII of the Civil Procedure
Code, 1908. The object underlying the
summary suits is to prevent unreasonable
obstruction by the defendant who has no
defence and to assist expeditious disposal
of cases.

The object of this provision is to ensure

that the defendant does not unnecessarily
prolong the litigation and prevent the
plaintiff from obtaining a decree by raising
untenable and frivolous defences in class
of cases where speedy decisions are
desirable in the interest of Commercial
transactions.

Thus, Order 37 provides for the summary

procedure (short cut procedure). The
provision has been made keeping in view
certain suits, in order to prevent the
unreasonable obstruction laid down by the
defendant, who has no defence. Unlike
other civil suits, the trial in summary suits
begins after the court grants leave to the
defendant to contest the suit. The court
dealing with summary suits can pass the
judgement in the favour of the plaintiff if
(1) the defendant has not applied for leave
to defend or if such application has been
made but refused, or (2) the defendant is
permitted to defend fails to comply with
the conditions on which the leave to
defend was granted.

Rules under Order 37-

Rule 1- Sub-Rule 2 makes it applicable to

all suits upon bills of exchange, hundies
and promissory notes or the ones in which
a Plaintiff seeks only to recover a debt or
liquidated demand in money payable on a
written contract, an enactment, where the
sum to be recovered is a fixed sum of
money or in nature of any debt except
penalty, a guarantee - in respect of a debt
or liquidated demand.

Rule 2- requires an Order 37 Suit to

contain among others, a specific averment
that the Suit is filed under this Order and
no relief which does not fall within the
ambit of this Rule is claimed. Under Order
37, there are two stages of getting the Suit
decreed. One is at the stage of Rule 2(3)
and the other is at the stage of Rule 2(6).

Rule 2(3) states the procedure for the

appearance of Defendant which is within
10 days from the service of the summons
on him. After entering an appearance,
Plaintiff serves on the Defendant
summons for judgments within ten days
from the date of service supported by an
Affidavit; verifying the cause of action,
amount claimed and that in his belief there
is no defence to the suit.

Rule 2(5) further states that the Defendant

may within 10 days from service of such
summons for judgments by Affidavit or
otherwise disclose such facts as may be
deemed sufficient to entitle him to defend,
apply for leave to defend and it may be
granted to him unconditionally or upon
such terms as may appear to the Court to
be just. Further, the proviso indicates that
leave to defend shall not be refused
unless the Court is satisfied that the facts
disclosed do not indicate a substantial
defence or that the defence is frivolous or
vexatious.

Rule 2(6) states that in case the

Defendant does not apply for a leave to
defend, (a) the Plaintiff shall be entitled to
judgments immediately or (b) the Court
may direct the Defendant to give such
security as it may deem fit. Sub-clause 7
states that in case sufficient cause is
shown, the delay in entering an
appearance or in applying for leave to
defend the Suit may also be excused.

Summary Suits under Order 37 of CPC-

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

Applicability and Extent

The provisions of Order 37 apply to High
Courts, City Civil Courts, Courts of Small
Causes and other superior Courts. They
apply to Suits based on:
promissory notes , bills of exchange and
hundies , and suits in which plaintiff seeks
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
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 only.

Jurisdiction
Suits can be instituted where (a) the
defendant resides, or (b) the defendant
carries on business or personally works
for gain or, (c) the cause of action wholly
or partly arises. Based on the value of the
suit, pecuniary jurisdiction can be decided.
Based on the pecuniary jurisdiction suit
can be filed either in High Court or District
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 Summary Suit
A summary suit is instituted by presenting
a plaint in an appropriate civil court. 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. Rule 2 and Rule 3 of
order 37 provide for procedure of
summary suits.

Rule 2 provides that after the summons of

the suit has been issued to the defendant,
the defendant must enter an appearance
within ten days of service of summons
and the plaintiff will serve a summons for
judgement to 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 for a decree which will be
executed forthwith.
Rule 3 prescribes the mode of service of
summons and leave to defend. The
defendant must apply for a leave to
defend within ten days from the day 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 entitle 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. [6]

Leave to defend, however should not be

refused unless the Court is satisfied that
the facts disclosed by the defendant do
not indicate that he has substantial
defence to raise or that the defence
intended 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 to him in the
Court.

At the hearing for such summons for

judgement, if the defendant does not
apply for leave to defend or such leave to
defend is refused, the plaintiff is entitled to
a decree forthwith. The court or the 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 may 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 law.
Notes:
The principle of Res Judicata is not
applicable to summary suits, i.e. summary
suits can be filed in the matters which are
directly and substantially in issue in a
previously instituted ordinary suit.

Case laws
A suit under Order 37 was filed by the
petitioner for recovery of the amount due
to them for the sale and supply of certain
goods to the respondent. The trial court
issued a summons in the prescribed
format under Order 37 which was duly
served on the respondent. Despite the
service, the respondent failed to enter.
When the petitioner applied for the
passing of a decree as the respondent
failed to enter an appearance, the trial
court, by the impugned order, held that
since the petitioner was claiming the
balance amount of the invoices and there
was some doubt about the authenticity of
the invoices, the suit is treated as an
ordinary suit.

Limitation-

The suit can be filed within 3 years from

the date of cause of action has arisen.
The said period of limitation cannot be
condoned.

Discretionary Power-

The discretionary power conferred upon

the court under Order 37 should be
exercised judicially, judiciously and on
well-settled principles of natural justice.
Wherever defence raises triable issues,
leave should be granted unconditionally. If
it is not done, leave may become illusory.
 Care should be taken to see that the
object of the rule to assist the expeditious
disposal of commercial cases should not
be defeated. But it also must be ensured
that real and genuine triable issues are
not shut out by unduly severe orders as to
deposit.

Invoice is a basis for filing a suit under

Order 37 of CPC?

A suit which seeks to recover a debt or a

liquidated demand in money payable by
the defendant arising out of a written
contract is maintainable under Order 37,
Rule 1 of the Code of Civil Procedure,
1908 as a summary suit. It is settled law
that invoices/ bills are “written contracts”
within the contemplation of Order 37, Rule
2 of the Code of Civil Procedure, 1908.
[Case: M/s. Punjab Pen House V/s
Samrat Bicycles Limited, AIR 1992 ]
Case Laws:-

● The crux of the various judgments on

Order 37 has been summarized in Sunil
Enterprises and Anr. v. SBI Commercial
and International Bank Ltd. wherein the
position were summarized as under:

(a) If the defendant satisfied the Court that

he has a good defence to the claim on
merits, the defendant is entitled to
unconditional leave to defend.

(b) If the defendant raises a triable issue

indicating that he has a fair or bona fide or
reasonable defence, although not a
possibly good defence, the defendant is
entitled to unconditional leave to defend.

(c) If the defendant discloses such facts

as may be deemed sufficient to entitle him
to defend, that is, if the affidavit discloses
that at the trial he may be able to establish
a defence to the plaintiff's claim, the Court
may impose conditions at the time of
granting leave to defend the conditions
being as to the time of trial or made of trial
but not as to payment into Court or
furnishing security.

(d) If the defendant has no defence, or if

the defence is sham or illusory or
practically moonshine, the defendant is
not entitled to leave to defend.

(e) If the defendant has no defence or the

defence is illusory or sham or practically
moonshine, the Court may show mercy to
the defendant by enabling him to try to
prove a defence but at the same time
protect the plaintiff by imposing the
condition that the amount claimed should
be paid into Court or otherwise secured.
● A three-judge bench said in Precision
Steel & Engg. Works vs Prem Deva
Niranjan Deva Tayal said that mere
disclosure of facts, not a substantial
defence is the sine qua non.

What is a substantial defence depends

upon the facts and circumstances of each
case?

● In Neebha Kapoor v Jayantilal

Khandwala, Supreme Court said the
underlying public policy behind Order 37
is expeditious disposal of suits of
commercial nature. It provides for such
disposal as expeditiously as possible by
prescribing a time frame, therefore.
Where, however, the applicability of Order
37 of the Code itself is in question which
appears to be the principal reason behind
the impugned judgement, in our opinion,
grant of leave may be permissible. The
court before passing a decree was entitled
to take into consideration the
consequences, therefore.

● In Southern Sales and Services and

Ors. v. Sauermilch Design and Handels
GMBH, 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."Generally, the Courts
are usually reluctant to grant leave to
defend especially an unconditional one.
This is perhaps because, in an Order 37
suit, the balance of convenience is usually
in favour of Plaintiff and the Courts are
also aware of the delay caused in
deciding a Civil Suit which takes about
three to four years, to be finally decided
with an option of Appeal to a higher forum
still open.
● In Inderjeet Kaur vs Nirpal Singh,
Supreme Court warned that a cautious
and judicious approach plus a balanced
view in respect of competing claims is
necessary. It further stated that at a stage
when leave to defend is sought, it is
enough if he prima facie makes out a case
by disclosing such facts as would
disentitle the other side from claiming an
order. It would not be the right approach to
say that unless the Defendant at that
stage itself establishes a strong case, he
should be granted leave. It further
cautioned that leave to defend sought for
cannot also be granted for mere asking or
in a routine manner which will defeat the
very object of the special provisions
contained in Chapter III-A of the Act.