Summary procedure is the best option to recover money through a recovery suit for the cases qualifying to file suit under order xxxviii. The Plaintiff has to pay court fee as prescribed in law.
The advantages of Summary suit are:
The Suit will be decreed within a short period
The Scope of Defendant to defend the case is less
Normally the Defendant will not get leave to defend
If the Defendant permitted to defend, the court may direct him to deposit part of the amount as security deposit.
If the defendant admitted part of the amount claimed by the Plaintiff, no leave to defend is allowed.
If the Defendant do not pay decreed amount the Plaintiff can approach the Court for Execution Proceedings.
Where to file a Summary Suit under Order XXXVII
A Summary Suit for recovery of money can be filed in High Court, City Civil Courts and Courts of small causes and other courts. The High Court may, by notification in the official gazette, restrict the operation of the other courts 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 deems proper.
Suits, which can be filed under Order XXXVII CPC 37
(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 penalty; or
(iii) on a guarantee, where the claim against the principal is in respect of debt or liquidated demand only
(iv) suit for recovery of receivable instituted by any assignment of a receivable.
How to Institute a Summary suit and what are the contents
A Suit to which order 37 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 the order;
(b) that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and
(c0 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, 1908)"
As per order XXXVII 2(3) of the Cover of Civil Procedure 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 be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, upto the date of the decree and such sum for costs as may be determined by the High Court from time to time by rule made in that behalf and such decree may be executed forthwith.
What is the procedure for appearance of defendant in Summary suit under order XXXVII
The Plaintiff shall, together with the summons under the rule 2, serve on the defendant a copy of the Plaint and annexures thereto and the defendant may, at any time within 10 days of such service enter an appearance either in person or by pleader and, in either case, he shall file in Court and address for service of notices on him.
As per order XXXVII Rule 3(2) unless otherwise ordered, all summons, notices and other judicial process, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service. Rule 3(3) further says that on the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if the plaintiff sues in person, the plaintiff himself, either by notice delivered at or sent by the prepaid letter directed to the address of the plaintiff's pleader or the plaintiff, as the case may be.
Summons for Judgment in Form No. 4-A
As per Rule 3(4) if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4-A or in such other form as may be prescribed from time to time, returnable not less than 10 days from the date of service supported by and affidavit verifying because of action and amount claimed and stating that in his belief there is no defence to the suit.
Defending Summons for Judgment by Defendant
As per Rule 3(5) the defendant may, at any time within ten days from the 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 conditionally 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 defendants do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the attendant is frivolous or vexatious.
Provided further that, where part of the amount claimed by the plaintiff is admitted by the defendant to be due from hi, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in the court.
Hearing of Summons for Judgment in the Court (Order XXXVII Rule 3(6)
At the hearing of such summons for Judgment -
As per Rule 3(6)(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall entitled to judgment forthwith; or
As per Rule 3(6)(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 within the time specified by the Court or Judge or to carry out such other directions as may have been give by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.
Rule 3(7) says that the Court or Judge may, for sufficient cause shown by the defendant, because the delay of defendant in entering an appearance or in applying for leave to defend the suit.
Power to Set aside decree under Order XXXVII
As per Order XXXVII Rule 4 after decree 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.
Power to order bill, etc., to be deposited with officer of Court
As per Order XXXVII Rule 5 in any proceeding under this Order the Court may order the bill, hundi or note on which the suit is found 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 thereof.
Order XXXVII Rule 6 Recovery of cost of noting non acceptance of dishonored bill or note
The holder of every dishonored bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in the noting the same for non-acceptance or non-payment, or otherwise, by reason of such dishonor, as he has under this Order for the recovery of the amount of such bill or note.
Order XXXVII Rule 7 Procedure in suits
As per Rule 7 save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner.