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Summary Suit in CPC

Updated: May 5


Summary Suit in CPC

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Understanding Summary Suit


Order 37 outlines a summary procedure for suits revolving around negotiable instruments or cases where the plaintiff pursues the recovery of a debt or a predetermined amount. The crux of summary suits lies in the fact that the defendant does not possess an automatic entitlement, as in a typical suit, to defend the case.


Instead, the defendant must petition for permission to defend within the specified timeframe of ten days. Such permission will only be granted if the affidavit submitted by the defendant reveals facts compelling enough to necessitate the plaintiff to establish the existence of consideration or other relevant facts.


The essence of the summary procedure suit in CPC is to facilitate prompt adjudication and resolution of the suit while preventing unjustifiable hindrances by defendants lacking a valid defence. This approach aids in the swift disposal of cases, particularly crucial in the context of trading and commercial activities.


Delays in resolving monetary disputes between parties can significantly impede trading and commercial operations.


Application of Order 37 of CPC


The provisions outlined in Order 37 are applicable to various superior courts, including High Courts, City Civil Courts, and Courts of Small Causes. These provisions pertain to two categories of suits:


(a) Suits based on bills of exchange, hundies, and promissory notes; and


(b) Suits where the plaintiff endeavours to recover a debt or a predetermined amount owed by the defendant, whether with or without interest. Such debts or amounts may arise from:


(i) Written contracts,


(ii) Enactments, provided the sought-after sum is a fixed monetary amount or a debt, excluding penalties; or


(iii) Guarantees, particularly when the claim against the principal concerns a debt or a predetermined amount.

 
 

Procedure for Summary Suit


Order 37 Rules 2 and 3 provide the procedure for summary suits in CPC. Rule 2 stipulates that upon issuance of the summons to the defendant, the defendant must appear, after which the plaintiff serves a summons for judgement.


In a summary suit, the defendant is not entitled to defend unless they enter an appearance. Failure to do so entitles the plaintiff to an immediate decree, which will be promptly executed.


Rule 3 outlines the process of serving summons and seeking leave to defend. The defendant must apply for leave to defend within ten days from receiving the summons.


Such leave will only be granted if the defendant's affidavit discloses facts sufficient to warrant a defence. The court may grant leave unconditionally or subject to just terms.


However, leave should not be denied unless the court is convinced that the defendant lacks a substantial defence or intends to raise a frivolous or vexatious defence.


If the defendant admits to owing a portion of the claimed amount, leave to defend should not be granted unless the admitted amount is deposited with the court.


The crucial determinant for granting leave to defend hinges upon whether the defence presents a genuine, sincere, and bona fide dispute, thereby raising a disputable issue. If the court finds that the defence indeed raises a triable issue or a legitimate dispute, it should refrain from refusing leave to defend.


However, it's essential to recognize that forming a definitive opinion on such matters prior to reviewing the evidence is imprudent and unjust. Only in cases where the defence is evidently dishonest or unreasonably untenable, to the extent that success cannot be reasonably anticipated, should the discretion to grant unconditional leave be withheld.


Given that the exercise of discretion lies with the court, no rigid criteria can dictate when unconditional leave should be granted to the defendant.


Generally, the assessment revolves around whether the defence introduces a genuine issue, not a fabricated one. In essence, if the defendant's allegations, if proven, could substantiate a credible or plausible defence, then leave to defend should be granted.

 
 

In certain circumstances, the court possesses the authority to annul the decree, halt execution, and extend leave to the defendant to appear and contest the suit. However, it's noteworthy that the inherent power under Section 151 of the Code cannot be invoked to set aside such a decree.


At the hearing for the judgement summons, if the defendant fails to seek leave to defend or if leave is refused, the plaintiff is entitled to an immediate decree. The court or judge may excuse the defendant's delay in entering an appearance or applying for leave to defend, provided sufficient cause is demonstrated.


The granting of leave to defend is not subject to a rigid rule; each case must be evaluated based on its merits and circumstances, ensuring that discretion is exercised judiciously and in accordance with the principles of natural justice underpinning our legal system.



Principles relating to Summary Suits in CPC


In the case of Kiranmoyee Dassi v. J. Chatterjee, the High Court of Calcutta articulated the following principles concerning suits of a summary nature:


(i) If the defendant demonstrates to the court that they possess a strong defence to the claim on its merits, the plaintiff is not entitled to proceed with signing judgement, and the defendant is granted unconditional leave to defend.


(ii) Should the defendant raise a triable issue indicating a fair, bona fide, or reasonable defence, even if not conclusively strong, the plaintiff cannot sign judgement, and the defendant is granted unconditional leave to defend.


(iii) If the defendant presents facts in their affidavit that could potentially support a defence at trial, albeit not conclusively establishing one immediately, the plaintiff cannot obtain judgement, and the defendant is granted leave to defend.


However, the court may, at its discretion, impose conditions regarding the time or manner of trial, excluding payment into court or the provision of security.


(iv) In scenarios where the defendant lacks a defence or where the defence is illusory, sham, or essentially non-existent, the plaintiff is typically entitled to proceed with signing judgement, and the defendant is not granted leave to defend.


(v) Even if the defendant lacks a defence or presents an illusory defence, the court may, in certain cases, protect the plaintiff by allowing the defence to proceed only if the claimed amount is deposited into court or otherwise secured.


In such instances, the court may grant leave to defend on this condition, thereby affording the defendant the opportunity to attempt to establish a defence while ensuring protection for the plaintiff's interests.

 
 

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