CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

Submission of Final Draft

TOPIC: SUMMARY SUIT

Submitted To: Dr..B.R.N. Sharma

Submitted By: Siddharth Raj

Roll No.:-1382
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ACKNOWLEDGEMENT

I would like to thank Dr. B.R.N. Sharma whose guidance helped me a lot with structuring
my project. I owe the present accomplishment of my project to my friends, who helped me
immensely with materials throughout the project and without whom I couldnt have
completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped
me out at every stage of my project.

Thank you,

SIDDHARTH RAJ

Roll no-1382.

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DECLARATION

I hereby declare that the work reported in the project entitled Summary Suits submitted at
CHANAKYA NATIONAL LAW UNIVERSITY is an authentic record of my work carried
out under the supervision of Dr. B.R.N. Sharma sir. I have not submitted this work elsewhere
for any other degree or diploma. I am fully responsible for the contents of my Project Report.

Siddharth Raj

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TABLE OF CONTENTS:

INTRODUCTION 6

SUMMARY PROCEDURE 7

KINDS OF SUITS 8

THE CONSTITUTIONALITY AND SCOPE 9

AMENDMENT OF PLAINT 10

INSTITUTION OF SUMMARY SUITS 10

PROCEDURE FOR THE APPEARANCE OF DEFENDANT 12

POWER TO SET ASIDE DECREE 15

POWER TO ORDER BILL, ETC., TO BE DEPOSITED WITH OFFICER OF

COURT 16

RECOVERY OF COST OF NOTING NON-ACCEPTANCE OF DISHONOURED

BILL OR NOTE. 16

PROCEDURE IN SUITS. 16

DIFFERENCE BETWEEN SUMMARY SUIT AND ORDINARY SUIT: 16

CONCLUSION 17

BIBLIOGRAPHY 18

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OBJECTIVES OF THE STUDY

The objectives of the study to

(i) To study about process of institution of summary suits.

(ii) To study about the procedure of summary suits.
(iii) To study the constitutionality of summary suits.

HYPOTHESIS

The researcher comes with the following hypothesis that the summary suits are similar to
those of ordinary suits and exists no difference.

RESEARCH METHODOLOGY

The researcher depend upon the existing materials like books, case laws, thus the researcher
opted doctrinal method of research. The researcher visited library and refer the primary and
secondary sources available there.

SOURCES OF DATA

The researcher went for primary and secondary sources of data. Secondary sources are all
those work done on primary sources.

LIMITATIONS OF THE STUDY

The researcher had time limitation as he has to complete this project within one month.

SCOPE OF THE STUDY

This research will be a source for a further researcher. This research will give him/her the
basic ideas in a very simple manner.

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INTRODUCTION

Order 37 of the Civil Procedure Code provides for the summary 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 judgment 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 who is permitted to defend fails
to comply with the conditions on which the leave to defend was granted1.

No longer, it is mandatory to supply the copy of the documents. However, it is mandatory

to supply annexure and therefore, even if it is assumed that the documents were not supplied,
it would not render the service of summons under O 37 nugatory2.

1
Indian Bank v. Maharashtra State Co-op Marketing Federation (1998) 5 SCC 69.
2
SV Electrical Limited v. Sylvania Laxman Ltd. AIR 2000 Del 156.

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SUMMARY PROCEDURE

ORDER XXXVII of the Code reads as follows:

1. Courts and classes of suits to which the Order is to apply

(1) This Order shall apply to the following Court, namely:-

(a) High Courts, City Civil Courts and Courts of Small Causes; and

(b) other Courts;

Provided that in respect of the Courts referred to in clause (b), the High Court
may, by notification in the Official Gazette, restrict the operation of this Order
only to such categories of suits as it deems proper, and may also, from time to
time, as the circumstances of the case may require, by subsequent notification
in the Official Gazette, further restrict, enlarge or vary, the categories of suits
to be brought under the operation of this Order as it deems proper.

(2) Subject to the provisions of sub-rule (1) the Order applies to the following
classes of suits, namely:-

(a) suits upon bills of exchange, hundies and promissory notes;

(b) 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,-

(i) on a written contract, or

(ii) 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

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penalty; or

(iii) on a guarantee, where the claim against the principal is in

respect of a debt or liquidated demand only.

The scope of the rule has been amended by the amendment of 1976. Adopting the Bombay
Amendment, summary procedure has been made applicable to all courts.

The Code of Civil Procedure, 1908 provides for a summary procedure in respect of
certain suits. Provisions relating to summary procedure are found in O. 37, Rules 1 to 7 of the
Code. A Summary suit is intended to facilitate the speedy disposal of cases. The object that
underlies the summary procedure is to guard against delaying tactics that are indulged in by a
defendant, who may have no genuine defence. In short, the essence of summary suits is that
the defendant is not, as in an ordinary suit, automatically endowed with the right to defend a
suit. The right to exercise his defence will be granted to the defendant only if the court is
convinced as to the authenticity of his claims. The summary procedure is a powerful weapon
in the hands of a court to discourage frivolous defences.

The important feature of "summary suit", is that, here the Defendant is not allowed to
defend the suit, unless he takes the permission from court. Defendant is allowed to defend
himself only if according to the affidavit filed by him, it is must for the plaintiff to prove
charges against him.

If by affidavit by Defendant, it appears that he has no defense, then court will decline him the
permission and pass necessary orders in favor of plaintiff.

KINDS OF SUITS

1. Suits upon bills 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.

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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 unreasonable delay
sought to be caused is eliminated.

THE CONSTITUTIONALITY AND SCOPE

The provisions of this Order, prescribing for the special trail of certain classes of suits, and by
certain courts, are not repugnant to Article 14 of the Constitution, as they are based on
reasonable classification3. Rule 8 made under the Bombay Rents Hotels and Lodging Hall
Rates (Control) Act 1947 provides that ejectment suits may be instituted in accordance with
O 37 is not ultra vires4.

Promissory Notes, Bills of Exchange and Hundis.

The Order applies on the promissory notes, bills of exchange and hundis. The Negotiable
Instruments Act under ss 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 Payee 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 a/c payee
only can be filed under the summary procedure5.

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 futuro. 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 happened6.

3
Cf Khemchand v. Hari AIR 1979 Del 7.
4
Ramkarandas v. Bhagwaandas AIR 1965 SC 1144.
5
Tailors Priya v. Gulabchand AIR 1963 Cal 36.
6
Kesoram Industries v. Gheesi AIR 1999 Raj 69.

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Liquidate 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 O 377.

AMENDMENT OF PLAINT
In a suit under O 37 on promissory note, amendment was sought to introduce additional facts
and documents, to take the defendants liable as guarantors. It was held that on the particular
facts of the case amendment (though belated) should be granted8.

INSTITUTION OF SUMMARY SUITS

Order 37 rule 2 deals with the institution of summary suits.

2. Institution of summary suits

(1) A suit, to which this Order applies, may if the plaintiff desires to proceed
hereunder, be instituted by presenting a plaint which shall contain,-

(a) a specific averment to the effect that the suit is filed under this Order;

(b) that no relief, which does not fall within the ambit of this rule, has been
claimed in the plaint;

(c) the following inscription, immediately below the number of the suit in the
title of the suit, namely:-

"(Under Order XXXVII of the Code of Civil Procedure, 1907)."

(2) the summons of the suit shall be in Form No. 4 in Appendix B or in such other
form as may, from time to time, be prescribed.

(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he enters
an appearance and in default of his entering an appearance the allegations in the plaint
shall be deemed to be admitted and the plaintiff shall entitled to a decree for any sum,

7
Rajinder Kumar Khanna v. Oriental Insurance Co. AIR 1990 Del 278.
8
Dena Bank v. Gautam Ratilal Shah AIR 1988 Bom 1.

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not exceeding the sum mentioned in the summons, together with interest at the rate
specified, if any, up to the date of the decree and such sum for costs as may be
determined by the High Court from time to time by rules made in that behalf and such
decree may be executed forthwith.

This rule 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.

Failure to Enter Appearance:

As provided by sub-rule(3), in a summary suit, if the defendant fails to enter appearance, the
court can pass a decree on the basis that allegations in the plaint are deemed to have been
admitted9.

Form of summons in a Summary Suit:

The summons in a summary suit requires the defendant to obtain leave from the court within
ten days from the service thereof to appear and defend the suit and within such time to cause
an appearance to be entered on his behalf.

Limitation for Application for Leave to Defend:

The period for an application for leave to appear and defend is ten days from the date when
the summons is served. The court has no power to extend the time10, unless the court has, by
a rule framed in that behalf, made s 5 of the Limitation Act applicable to such applications as
done by the High Court of Bombay.
It has been held in some decisions of Madras High Court that a court could entertain,
for sufficient cause, an application presented beyond ten days, as a power to excuse delay
should be implied from the power to set aside an ex parte decree for sufficient cause, under
rule 411.

9
Vijaya Home Loans Ltd. V. Crown Traders Ltd., AIR 1998 Del 183.
10
Mahmudar v. Saratchandra (1900) 5 CWN 259.
11
Murahari Rao v. Bapayya AIR 1949 Mad 742.

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But most of the authorities hold the view that there is no power in the court to excuse
delay, as section 5 of the Limitation Act is inapplicable12.

Obtaining Leave is Must:

Before the amendment of 1976, this rule provided that a defendant who has failed to obtain a
leave to defend can not be allowed to appear while the hearing is proceeding. But the scheme
after the amendment is different. The defendant must enter an appearance and thereafter he
has to seek leave to defend.

PROCEDURE FOR THE APPEARANCE OF DEFENDANT

3. Procedure for the appearance of defendant

(1) In a suit to which this Order applies, the plaintiff shall, together with the summons
under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the
defendant may, at any time within ten days of such service, enter an appearance either
in person or by pleader and, in either case, he shall file in Court an address for service
of notices on him.

(2) Unless otherwise order, all summonses, notices and other judicial processes
required to be served on the defendant, shall deemed to have been duly served on him
if they are left at the address given by him for such service.

(3) On the day of entering the appearance, notice of such appearance shall be given by
the defendant to the plaintiffs pleader, or, if the plaintiff sues in person, to the plaintiff
himself, either by notice delivered at or sent by pre-said letter directed to the address
of the plaintiffs pleader or of the plaintiff, as the case may be.

(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the
defendant a summons for judgment in Form No. 4A in Appendix B for such other
Form as may be prescribed from time to time, returnable not less than ten days from
the date of service supported by an affidavit verifying the cause of action and the
amount claimed and stating that in his belief there is no defence to the suit.

12
Kamalammu v. Venkata Sastri (1951) 1 MLJ 676, AIR 1951 Mad 895.

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(5) The defendant may, at any time within ten days from service of such summons for
judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient
to entitle him to defend, apply on such summons for leave to defend such suit, and
leave to defend may be granted to him unconditionally or upon such terms as may
appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the
facts disclosed by the defendant do not indicate that he has a substantial defence to
raise or that the defence intended to be put up by the defendant is frivolous or
vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted
by the defendant to be due from him, leave to defend the suit shall not be granted
unless the amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,-

(a) if the defendant has not applied for leave to defend, or if such application
has been made and is refused, the plaintiff shall be entitled to judgment
forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the
claim, the Court or Judge may direct him to give such security and within such
time as may be fixed by the Court or Judge and that, on failure to give such
security with the time specified by the Court or Judge or to carry out such
other directions as may have been given by the Court or judge, the plaintiff
shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, execute the
delay of the defendant in entering an appearance or in applying for leave to defend the
suit.

This rule prescribes 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

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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 grant to him
unconditionally or upon such terms as may appear to the court or judge to be just 13. 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 rise or that the defence
intended to be put by him is frivolous or vexatious.

Sub-rule(5):
As a rule, leave to defend must be given unconditionally if the defendant shows a prima facie
case or raises a triable issue. Leave should be made conditional if the court doubts the bona
fides of defendant or thinks that the defence is put in only in order to gain time14. The Madras
High Court has held that if the defendant sets up a defence which if proved would entitle him
to succeed, the court has no discretion but must grant leave unconditionally15.
In the Santosh Kumar v. Mool Singh16, the Supreme Court approved the decision of
Sundaram v. Vallimal17 held that once it was found that there was a triable issue, leave should
be given.

Discretion:
After the amendment of 1976, the discretion to give leave to defend is delineated by the
provisios. Order 37, rule 3(5) provides that leave to defend shall not be refused unless the
court is satisfied that there is absence of substantial defence, or the defence is frivolous or
vexatious.
Following principles are to be followed, while touching upon the issue of granting
leave:
1. 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.
2. 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 defendant is entitled to unconditional leave to defend.

13
Mechalec Engineers v. Basic Equipment Corpn., (1976) 4 SCC 687.
14
Santosh v. Moolsingh AIR 1958 SC 321.
15
Sunderam v. Valli Ammal (1935) ILR 58 Mad 116, 152 IC 687.
16
AIR 1958 SC 321.
17
(1935) ILR 58 Mad 116, 152 IC 687.

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3. If the defendant discloses such facts as may be deemed sufficient to entitle him to
defend, 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 conditions as to payment into court or furnishing
security.
4. If the defendant has no defence or the defence set up is illusory or shown to be
practically moonshine, then ordinarily the plaintiff is entitled to leave to sign
judgment and the defendant is not entitled to leave to defend.

Sub-rule (7)
Under rule 3(7), time cannot be given until the defendant enters appearance. For leave to
defend in a summary suit for recovery of money, the defendants must show that they have
substantial defence and triable issues to raise, and that their defence is not frivolous. Only
copy of plaint and annexure thereto has to be furnished to defendants. Furnishing of copies
of document which are the basis of the suit is not necessary. Defendant would not be entitled
to leave to defend on the ground of non-furnishing of copies.
The expression within ten days may mean that the period may be less than ten days
or, at the most, on the tenth day. But it cannot go beyond that.

POWER TO SET ASIDE DECREE

4. Power to set aside decree

After decree for the Court may, under special circumstances set aside the decree, and
if necessary stay or set aside execution, and may give leave to the defendant to appear
to the summons and to defend the suit, if it seems reasonable to the Court so to do,
and on such terms as the Court thinks fit.

Under this rule, the court can set aside the decree and stay the execution and may grant leave
to the defendant to appear and defend the suit.

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POWER TO ORDER BILL, ETC., TO BE DEPOSITED WITH OFFICER OF

COURT

In any proceeding under this Order the Court may order the bill, hundi or note on which the
suit is founded to be forthwith deposited with an officer of the Court, and may further order
that all proceedings shall be stayed until the plaintiff gives security for the costs thereof18.

RECOVERY OF COST OF NOTING NON-ACCEPTANCE OF DISHONOURED

BILL OR NOTE

The holder of every dishonoured bill of exchange or promissory note shall have the same
remedies for the recovery of the expenses incurred in noting the same for non-acceptance or
non-payment otherwise, by reason of such dishonour, as he has under this Order for the
recovery of the amount of such bill or note19.

PROCEDURE IN SUITS

Save as provided by this Order, the procedure in suits hereunder shall be the same as the
procedure in suits instituted in the ordinary manner20.

DIFFERENCE BETWEEN SUMMARY SUIT AND ORDINARY SUIT

1. In the ordinary suit the defendant is entitled to defend the suit as of right. But in a
summary suit he is not entitled for the same except with the leave of the court.
2. in an ordinary suit the decree can not be set aside by the trial court except in review.
But in the summary suit the trial court may set it aside under special circumstances.

18
Rule 5
19
Rule 6.
20
Rule 7.

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CONCLUSION

Summary suit of recovery is a quick procedure, under Order XXXVII of the Code of Civil
Procedure for recovery of money when certain conditions are satisfied- that is written
agreement. The difference in procedure is that in ordinary suit, the defendant has a right to
contest whereas in summary procedure the defendant can enter into his defence only after
getting leave of the Court. The constitutional validity of the summary suits have been upheld.

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BIBLIOGRAPHY

Books Reffered:

Anil Nandwani, Law of Civil Procedure in India, 1st ed.2006, Allahabad Law Agency,
Faridabad.

C.K Takwani, Civil Procedure, 5th ed.2003, Eastern Book Company, Lucknow.

M.P Jain, The Code of Civil Procedure, 1st ed. 2004, Wadhwa and Company, Nagpur.
Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company, Nagpur.

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