 Summary Procedure- Order XXXVII

Rule 1-7

 ToPrevent unreasonable
obstruction laid down by the
Defendant
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
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
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.
 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.
 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
 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
 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.
 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.
 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
 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.
 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
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.
 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.
 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