SUMMARY PROCEDURE

Introduction
 Summary Procedure- Order XXXVII
Rule 1-7

 ToPrevent unreasonable
obstruction laid down by the
Defendant
Difference between Summary Suit and Ordinary
Suit

Summary Suit Ordinary Suit

Not entitled except by Defendant entitled to
the leave of court. defend as of right.

Trial court may set Decree cannot be set

aside decree under aside by the trial court
special circumstances. except in review
RULE 1- Courts & Classes of Suits

1. Order applies to courts-

a. HC, City Civil Court & Courts of Small Causes
b. Other courts
HC may restrict/enlarge or vary the operation categories of suits or
operation of order 37

2. Classes of suits it applies-

a. Bills of exchange, Hundies, Promissory notes,
b. debt, liquidated demand with or without interest arising on –

i. Written contract
ii. Enactment, sum recovered is fixed, debt or penalty
iii. Guarantee, claim against principal is debt or liquidated demand
Suits which can be filed
1. Account payee Cheque
 Suit
based on crossed cheque bearing an endorsement ‘a/c payee
only’ can be filed.

( Tailors Priya v. Gulabchand AIR 1963 Cal 36)

Commercial - prescribed time - Order 37 Rules 1 and 2 of Code of Civil Procedure,

1908 - whether application for leave to defend can be allowed when prescribed time
lapsed - respondent filed suit on basis of cheque given by petitioner which was
dishonored on account of insufficient fund - petitioner served with notice and
appeared before Court for seeking time to file leave to defend - Court rejected plea
of petitioner - petitioner again filed leave to defend which was dismissed on ground
that not filed with prescribed limit - law provides that after service of notice
petitioner must file leave to defend on proper time - provision not prescribed for
granting time to file leave to defend - petitioner not liable to defend suit - petition
dismissed.
2. Debt or Liquidated Demand
 Debt- Present obligation to pay an ascertainable sum
of money whether payable in presenta or futuro.

Sum payable upon a contingency does not become a

debt until the contingency has happened.

 Liquidated Demand- Amount made certain by

mathematical calculation from factors in possession or
knowledge of the party to be charged.
Interest

 S. 80 of Negotiable Instruments Act excluded

(oral agreements to pay interest excluded)

 Undertaking by Guarantor that on Failure of

loanee to pay installment on due date,
summary suit is not maintainable
RULE 2- Institution in Summary Suit
(Procedural)

 Plaintiff presents a plaint

 Specific averment that suit is filed under this

order
 Relief claimed in plaint under this rule
 Title of suit states

No. of suit
Under Order XXXVII of CPC, 1908
 Summons of suit in Form No. 4 in Appendix

B
 Defendants enters appearance
Failure to enter appearance
 Court passes a decree on the basis of allegations in
the plaint as they are deemed to have been admitted.

(Vijaya Home Loans Ltd. vs. Crown Traders Ltd. AIR

1998 Del 183)

The present case dealt with a summary suit filed under

Order 37 of the Civil Procedure Code, 1908, on account
of failure to obtain leave to defend - The said suit was
decreed on the basis of plaint that was deemed to have
been admitted.
Form of Summons
 Summons require the defendant to
obtain leave from the court within 10
days from service to appear and
defend the suit and time to cause an
appearance to be entered on his
behalf.
Limitation for Application for Leave to
Defend
 Period is 10 days from the date of summons is
served.

Obtaining leave is Must

 Defendant who has failed to obtain leave to
defend cannot be allowed to appear while the
hearing is proceeding.
 After amendment, defendant must enter
appearance and thereafter he has to seek leave to
defend.
Trial
 Begins after court grants leave to contest the suit.

 Judgment in favour of plaintiff if-

 Defendant not applied for leave or

applied but refused

 Defendant permitted to defend but fails to comply

with conditions

 No longer mandatory to supply copy of documents

RULE 3- Procedure for appearance of
Defendant
 Plaintiff serves a copy of plaint with annexure
 Within 10 days of such service,
 Defendant enters appearance
 He files address for service of notice
 Deemed to be served when left at address given by him.
 Entering appearance, notice from defendant to plaintiff
 Enters Appearance, plaintiff serves summons for
judgment in Form No. 4A in Appendix B
 Returnable not less than 10 days from date of service
supported by affidavit verifying Cause of Action &
Amount claimed.
Sub- Rule(5)
 Leave to defend given unconditionally if prima facie case or triable
issue.
 Leave should be made conditional if court doubts the bona fides of
defendant or thinks that the defence is put only in order to gain time.
 Held that once it was found that triable issue exists, leave should be
given.

( Santosh v. Moolsingh AIR 1958 SC 321)

Civil - Code of Civil Procedure - Order 37, Rule 2 & 3 - Leave to defend
- Test for leave to defend is to see whether the defence raises a real
issue and not a sham one - Court was wrong in imposing condition for
security on the ground for want of documentary evidence as a stage of
poof can only arise after leave to appeal - Appeal allowed
Discretion
Following principles to be followed while granting leave:

Defendant satisfies the court of:

 Good defence

 Fair or bona fide or reasonable defence which entitles

defendant unconditional leave to defend.

 discloses such facts deemed to be sufficient to entitle

him to defend.
 
 If defence illusory or moonshine- not entitled to leave

to defend.
Sub-Rule (7)
 For leave to defend for recovery of money, defendants
must have substantial defence and triable issues to raise.

 Defendant would not be entitled to leave to defend on

the ground of non-furnishing of copies.

 For sufficient reason, defendant will be excused for delay

in appearance or applying leave to defend.

 Committee does not mention the grounds on which leave

to defend will be refused.
It says it deprives opportunity of contesting the suit.
Rule 4
 After decree of the court may, under special circumstances,
Court stay or set aside decree or set aside or stay execution
and give leave to defendant to appear on reasonable terms as
court thinks fit.
 
Rule 5
 Power to order bill etc, to be deposited with officer of court
and proceedings will be stayed until plaintiff gives security.
 
Rule 6
 Recovery of cost of noting non- acceptance of dishonoured
bill or note shall have same remedies as the one whose bill of
exchange or promissory note has been dishonoured.
 
Rule 7
 Procedure in summary suits is same as in ordinary suit.
Conclusion
Case of negotiable instruments

Plaintiff files summons for judgment

Defendant enters appearance within 10 days

Obtains leave to defend either conditionally or

unconditionally

Judgment delivered

SPEEDY DISPOSAL
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