Order XXXVII – Summary Procedure: Overview and Legal Framework
Order XXXVII of the Code of Civil Procedure (CPC), 1908, sets out a special legal process called the Summary Procedure. This approach is meant to quickly resolve certain types of disputes, especially when the defendant does not have a strong defence any defence at all. It helps speed up the process for enforcing claims, particularly those involving financial documents or clear money demands.
Scope and Jurisdiction
Summary suits are applicable in various courts, including:
• High Courts
• City Civil Courts
• Courts of Small Causes
• Any other court designated by the High Court
The High Court has the authority to adjust which cases are eligible for summary procedure based on changing judicial needs.
Types of Claims Under Summary Procedure
The Summary Procedure is typically used for:
1. Financial Instruments:
o Bill of Exchange: A written, unconditional order from one party (the drawer) to another (the drawee) to pay a specified amount either immediately (a sight bill) or on a set date (a term bill) for goods or services.
o Hundies: Traditional financial instruments used mainly in the Indian subcontinent. They function as unconditional payment orders and are often used in trade and credit.
o Promissory Note: A document featuring an unconditional promise to pay a specific amount either on demand or at a future date to a named person or bearer.
2. Liquidated Money Demands:
o Claims Based on Written Contracts: Disputes arising from clear, written agreements.
o Claims Under Statutory Enactments: Claims based on statutes that stipulate a fixed sum or debt.
o Claims Based on Guarantees: Guarantees involving a specific debt or liquidated demand.
Initiating a Summary Suit
To file a summary suit:
1. Prepare and File the Plaint: The plaint must state explicitly that it is filed under Order XXXVII of the CPC and confirm that the claim is within the scope of this order. The title of the suit should include: “(Under Order XXXVII of the Code of Civil Procedure, 1908)”.
2. Serve the Defendant: Deliver a copy of the plaint and a summons to the defendant.
Steps After Filing
Once the summary suit is filed:
1. Service of Summons: The defendant receives the plaint and summons.
2. Appearance: The defendant must appear in court within 10 days of receiving the summons.
3. Summons for Judgment: If the defendant appears, the plaintiff issues a summons for judgment.
4. Application for Leave to Defend: The defendant then has 10 days to apply for leave to defend the suit.
Granting Leave to Defend
The court can grant leave to defend under the following conditions:
1. Unconditionally: If the defendant presents a robust and substantial defence.
2. Conditionally: If the defendant raises valid issues that indicate a fair chance of defence, but there are concerns about their sincerity. Conditions might include requirements like depositing a certain amount in court or providing security.
If the defendant fails to apply for leave or if their application is denied, the plaintiff is entitled to a judgment. Even if leave is granted but conditions are not met, the plaintiff may still secure a judgment.
Concurrent Suits
Under Section 10 of the CPC, a court cannot proceed with a suit if the same matter is being litigated in another suit between the same parties. However, this principle does not strictly apply to summary suits. The court can continue with the summary suit up to the point of issuing a judgment if the defendant fails to apply for leave or does not comply with conditions.
Decrees and Execution
The plaintiff can obtain a decree for the claimed amount, plus interest and costs, if:
• The defendant does not appear.
• The defendant fails to apply for leave to defend.
• The defendant’s application for leave to defend is denied.
If leave to defend is granted, the suit proceeds as an ordinary case under the general CPC provisions.
Setting Aside Decrees
Ex parte decrees in summary suits can be set aside under Rule 4 of Order XXXVII. The defendant must demonstrate special circumstances that prevented their appearance or failure to apply for leave within the specified timeframe. These special circumstances must show that it was nearly impossible for the defendant to attend court or take necessary actions.
Conclusion
Order XXXVII provides an expedited method for resolving certain types of claims, specifically targeting financial instruments and fixed money demands. This procedure simplifies the handling of straightforward cases, ensuring a quick resolution while still giving defendants a fair chance to challenge the claims under clearly defined conditions.
