SUMMARY PROCEDURE

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This article is written by Tanisha Mohanty of 7^th Semester of SOA National Institute of Law, an intern under Legal Vidhiya

Abstract

comparison to the regular procedure. The Civil Procedure Code (CPC) in India, a comprehensive legal framework that governs civil litigation in the country, contains several provisions and orders designed to ensure the efficient administration of justice. Among these, Order 37 of the CPC is a notable provision, often employed to expedite the resolution of specific civil disputes. This order, aptly titled “Summary Procedure,” is particularly relevant in cases involving negotiable instruments, such as promissory notes, bills of exchange, and cheques. In this detailed analysis, we will explore the key aspects of Order 37, examining its scope, object, key ingredients, jurisdiction of summary suit, procedure of summary suit, plaintiff’s requirements, defendant’s options, the process of summary judgment, the scope for appeal and review, and the advantages it offers in comparison to the regular procedure.

Key Words

Summary Procedure, Summary Judgment, Summary Disposition, Civil Procedure, Legal Proceedings, Court Rules, appeal, review, defendant, plaintiff, jurisdiction of summary suit, advantages, scope and object of order 37.

Introduction

A summary suit or summary procedure is provided by Order 37 of the Code of Civil Procedure, 1908. A summary suit is a unique and expeditious method of asserting a claim quickly since the judges make decisions in this process without considering the defence. Even while it seems like this goes against the fundamental tenet of natural justice, “audi alteram partem,” which states that no one should be condemned without a trial, this procedure is only used when the defendant is without a defence.

The benefit of this ruling is determined by the defendant. The plaintiff is entitled to the judgement right away if the defendant has a valid substantive defence to support his case. A court remedy for money recovery, commercial transaction resolution, and contract dispute resolution is summary proceedings. Its usefulness is extremely limited. It’s an extremely technical process. It is important to comprehend how a case is handled in accordance with Order 37 of the Civil Procedure Code (CPC).

Order 37

The summary procedure is established under CPC Order 37. In order to prevent the defendant, who lacks a defence, from imposing undue hindrance, the order was developed with a few specific suits in mind. Unlike other civil claims, summary procedure proceedings start once the judge gives the defendant permission to raise objections. When handling summary suit cases, the court may rule in favour of the plaintiff if

When handling summary suit cases, the court may rule in favour of the plaintiff if

If the defendant has not attempted to seek leave to defend, or if such a request has been made but denied, or
The defendant who has been granted leave to defend violates the terms and conditions of the leave to defend.

Object of order 37

The purpose of summary procedures is to prevent unwarranted intervention by defendants without a defence and to facilitate the rapid settlement of matters.

This provision was kept in place to ensure that the defendant would not unnecessarily prolong the legal process and prevent the plaintiff from receiving a ruling by putting up ludicrous and unsupportable arguments in a situation where prompt resolution is crucial to the success of economic dealings.

A description of the purpose of summary suits was provided by the Gujarat High Court in Navinchandra Babulal Bhavsar v. Bachubhai Dhanabhai Shah[1]. According to the Court, the primary goal of enacting the summary procedure is to encourage industry and businesses by instilling confidence in the business community that their justifications for financial claims of liquidating sums (determined amount) would have been promptly addressed and that their claims would not be upheld for decades, preventing their money for an extended period of time.

Scope of Order 37

Order 37 of the CPC primarily addresses the summary procedure for the recovery of debts due under negotiable instruments. Negotiable instruments, by their very nature, are often associated with monetary transactions and the creation of legally enforceable obligations. As such, cases involving these instruments need a specialized procedure to ensure swift resolution.

The underlying objective of Order 37 is to simplify and expedite the trial process in these cases, as compared to the regular civil procedure. It is designed to eliminate the need for an extensive and formal trial, with the intention of saving time and resources, both for the parties involved and the courts.

In Neebha Kapoor v. Jayantilal Khandwal[2], the Supreme Court declared that “summary cases are a form of speedy remedy.” However, “justice hurried is justice buried,” as the saying goes. Furthermore, in practise, distinguishing between frivolous and significant defence is difficult. As a result, the authority granted by the aforementioned decree must be exercised with carefully.

Furthermore, the concept of “audi alteram partem” is central to natural justice and a cornerstone of the Constitution. However, under summary procedure, the defendant’s case is not presented, benefiting the plaintiff over the defendant. In summary suit, the right to defend is not a right; rather, it must be claimed to the satisfaction of the court.

Ingredients of order 37

Rule 1: Application

Order 37’s Rule 1 addresses the courts and categories of cases that it covers. It provides that a civil judge, an additional district judge, a high court judge, or any other court with financial authority may hear a matter submitted under summary procedure.

Rule 1(2) covers all suits based on promissory notes, bills of exchange, and hundies; it also covers suits where the claimant’s sole goal is to revive a debt or liquidated demand in funds payable under a written agreement; an enactment; a guarantee pertaining to a debt or liquidated demand; and any suit where the amount to be retrieved is a fixed amount of money or in the essence of any debt other than fines.

Rule 2: institution of summary suit on promissory notes etc.

Rule 2(1) primarily addresses the plaintiff and the plaint. In his plaint, the plaintiff must furnish the court with all necessary information. The plaintiff must specifically state that the case is being brought in conformity with this Order.

Rule 2(2) states that the summons must be in the format specified in Form No. 4 in Appendix B, or in any other form specified from time to time.

According to Rule 2(3), in the event that the defendant does not show up within ten days of the summons being issued, the plaintiff is entitled to a decision in an amount not to exceed the sum stipulated in the summons, and the claim is presumed recognised.

Rule 3: A defendant who presents a merits-based defence is granted leave to appear.

Rule 3(1) requires the plaintiff to provide the defendant with the notice to appear and a copy of the plaint in a claim to which this Order applies. The defendant must appear within 10 days of the summons being delivered on him.

All summons, notices, and other legal actions must be delivered to the defendant at the address specified by him, according to Rule 3(2).

Rule 3(3) specifies that on the day the defendant appears in court, he must tell the plaintiff’s pleader or the plaintiff directly, either by summons delivered or by prepaid messages, of his attendance.

Rule 3(4) states that if the defendant arrives, the plaintiff must serve the defendant with a summons for judgement in Form 4A from Appendix B. It must include an affidavit stating the cause of action and the amount claimed, as well as his view that there is no defence to the complaint.

According to Rule 3(5), the defendant may request leave to defend within ten days of receiving the notice to appear for judgement by affidavit or to provide any other information that may be deemed sufficient to support his case. The leave may be granted to him unconditionally or subject to restrictions determined by the court. Furthermore, the rule stipulates that permission to defend will not be rejected unless the court is convinced that the revealed facts do not imply a serious defence or that the defence is illogical or unreasonable.

According to Rule 3(6), if the defendant does not request permission to plead, then-

The plaintiff may seek immediate judgement, or
The defendant may be ordered by the court to offer such assurance as the court deems suitable.

Rule 3(7) allows for the deferral of entering an appearance or seeking permission to defend the action if adequate cause is established.

Rule 4: The authority to set aside a decree

Under Rule 4 of Order 37, the court has the ability to vacate the ex-parte decision entered in summary litigation. If it is fair for the court, the court can set aside the decree, grant a stay of execution, or grant the defendant any other permission to appear for the summons and defend the claim.

Rule 13 of CPC Order IX deals with setting aside ex parte rulings. The defendant must demonstrate that that summons wasn’t sent out correctly or that he was otherwise prevented from attending the hearing.

Rule 5: Authority to direct that bills, etc., be deposited with an officer of the court.

The court may mandate that the contested negotiable instrument be filed by a court official under Rule 5 of Order 37.

The court may also require either party to pay some type of security, such as expenditures, to ensure the plaintiff or defendant’s good faith.

Rule 6: Recovering the cost of indicating that there is no acceptance of dishonoured bills or note

The owner of any promissory note or dishonoured bill of exchange may be entitled to reimbursement for the expenses incurred in recouping the note’s value under Rule 6 of Order 37.

Rule 7: Suit Procedure

Rule 7 of Order 37 states that, except as otherwise stipulated in the order, the procedure for an ordinary civil complaint also applies to summary procedures.

Jurisdiction of summary procedure

A plaintiff may bring a summary suit in the court with jurisdiction over the location of the cause of action or where the defendant resides or conducts business. In other words, the suit can be filed in the court with jurisdiction over the subject matter.

Summary suits can be filed in Small Causes Courts, City Civil Courts, High Courts, and any other court notified by the High Court. The High Courts have the authority to limit, expand, or change the categories of cases brought under this decree.

The summary procedure has jurisdiction.

Claims may be made under the following conditions:

The place where the defendant resides
The defendant either owns a business or works for a living.
The cause of the action arises wholly or partially.

Pecuniary jurisdiction might be determined based on the value of the suit. Suit can be brought in either High Court or District Court depending on the pecuniary jurisdiction.

Limitation

The litigation must be brought within three years of the emergence of the cause of action. The aforementioned limiting time cannot be tolerated.

Discretionary Power

The discretionary power granted to the court by Order 37 should be applied judicially, prudently, and in accordance with well-established principles of natural justice. Leave should be granted unconditionally if the defence raises a triable issue. Leave may become imaginary if this is not done. Care should be taken to ensure that the rule’s goal of facilitating the quick resolution of commercial cases is not compromised. However, it must also be maintained that genuine and genuine triable matters are not excluded by excessively severe deposit orders.

Difference between summary suit and original suit.

Here’s the difference between a summary suit and an ordinary suit:

Summary Suit:

A summary suit is typically a faster and simpler legal procedure used for recovering money owed under a written contract or a promissory note.
It is governed by Order 37 of the CPC.
In a summary suit, the plaintiff (the person filing the suit) files a summary suit application along with a summary plaint, and the defendant is required to submit a written statement within ten days.
The court may grant a summary judgment if it is satisfied that there is no triable issue, and the defendant has no real defense. This allows for a quicker resolution of the case.
A summary suit is a specialized procedure designed for expeditious recovery of debts, and it is not suitable for cases involving complex facts or substantial legal issues.

Ordinary Suit:

An ordinary suit, also known as a regular or regular suit, is the standard procedure for filing civil cases that do not fall under the purview of summary suits or other specialized procedures.
Ordinary suits follow the general procedures outlined in the Code of Civil Procedure, where the plaintiff files a plaint, and the defendant files a written statement in response.
Ordinary suits are used for a wide range of civil matters, including property disputes, family law cases, contractual disputes, and other cases with complex legal and factual issues.
The resolution of an ordinary suit typically takes a longer time than a summary suit because it involves various stages, such as framing of issues, examination of witnesses, and legal arguments.

In summary, the main difference between a summary suit and an ordinary suit is in the nature and complexity of the case and the procedural requirements. A summary suit is designed for swift recovery of monetary debts based on written contracts or promissory notes, while an ordinary suit is the standard procedure for a wide variety of civil cases. The choice between the two depends on the specific circumstances and the relief sought by the plaintiff.

The procedure in summary suits

When bringing a suit under Order 37 of the CPC, there is a specific procedure that must be followed.

A summary suit follows the following procedure:

The plaintiff lodges a complaint.
The defendant is summoned to appear in court. The sum of money requested in the litigation, as well as a copy of the plaint, must be included in the summons.
The defendant is required to appear in court within 10 days after getting the summons.
If the defendant fails to appear, the claim is deemed to be acknowledged, and the plaintiff is entitled to a ruling in an amount not exceeding the summons amount.
If the defendant shows within 10 days, he must notify the plaintiff’s counsel or the plaintiff himself, and he must also provide an address for service of notices on him in court.

The Hon’ble High Court of Delhi ruled in Satish Chand v. Bal Krishan[3], that the plaintiff is entitled to the decree prayed in the suit and that the allegations in the plaint are deemed to be admitted after a defendant in a summary suit under Order XXXVII CPC fails to file an appearance. Furthermore, the merits of the case cannot be discussed by the court because they would have been discussed had the appearance been submitted.

The plaintiff serves the defendant with a summons for judgement after obtaining the defendant’s notification of appearance.
Within 10 days of getting the summons, the defendant shall request permission to defend, and such permission will be granted only if the defendant’s declaration shows material that the court believes is sufficient to allow him to defend.

The case referred to as IDBI Trusteeship Services Ltd v. Hubtown Ltd[4], the Supreme Court ruled that “if the court is satisfied of a plausible or probable defence and which defence is not considered a sham or moonshine, but yet leaving certain doubts in the mind of the court, it may grant conditional leave to defend.” The Hon’ble Court further decided that the court may give conditional leave to defend if the defendant presents a triable issue and the trial judge has doubts regarding the defendant’s good faith or the genuineness of the triable issues.

The value of the case may be used to determine pecuniary jurisdiction. Depending on the pecuniary jurisdiction, a claim can be filed in either the high court or the district court.

Procedure for a defendant’s appearance

Under summary procedure, the defendant has no right to defend his or her case. Within 10 days of getting the summons, the defendant must appear in person or through pleaders. On the day of the presence, the defendant must notify the plaintiff’s pleader or the plaintiff personally. If the defendant appears, the plaintiff must serve a summons for judgement on the defendant.

Within ten days of the summons being delivered, the defendant may request notice to defend the suit by affidavit or provide any factual information that may be deemed appropriate to enable him to defend. The court cannot reject the defendant’s defence unless it determines that the facts the defendant has provided are insufficient.

Plaintiff’s Requirements

When opting for the summary procedure under Order 37, the plaintiff must adhere to specific requirements to initiate the case. These requirements are intended to ensure that the claim is suitable for a summary procedure and that the defendant’s liability can be determined primarily based on the instrument itself. The key requirements include:

Filing a Plaint in the Prescribed Form

The plaintiff must file a plaint in the prescribed form, which is typically a straightforward document that contains essential details about the debt, the parties involved, and the particulars of the negotiable instrument. This form is designed to provide all the necessary information to the court to initiate the proceedings.

Accompanying the Original Instrument

The plaintiff must also submit the original negotiable instrument or a certified copy of it along with the plaint. This requirement ensures that the court has access to the primary piece of evidence supporting the plaintiff’s claim. In cases where the instrument is not available, a certified copy serves as an acceptable substitute.

The plaintiff’s statement, as presented in the plaint, should make the defendant’s liability clear and apparent based on the contents of the instrument and the accompanying details. This is crucial for the court’s assessment in the summary procedure.

Why order 37 CPC is beneficial to the plaintiff?

The fundamental benefit of an Order 37 litigation is that the plaintiff is entitled to an instant judgement if the defendant fails to prove that he has a substantial defence in his case. Summary procedures are legal remedies used to collect money, settle business transactions, and resolve contractual disputes. In comparison to a traditional action, such processes are frequently easier for the plaintiff’s side to establish and more difficult for the defendant’s side to establish.

Defendant’s Options

Once the plaintiff initiates the summary procedure, the defendant has two primary options upon being served with a summons under Order 37:

Entering an Appearance

The first option available to the defendant is to enter an appearance within ten days. By choosing this option, the defendant essentially acknowledges the suit and expresses their intent to participate in the proceedings. Once the defendant enters an appearance, the case is transferred from the summary procedure to the regular procedure.

Under the regular procedure, the defendant can file a written statement, as is customary in other civil suits. This provides the defendant with the opportunity to put forth their defences and contest the plaintiff’s claims in a more detailed and formal manner. The case will then proceed through the usual stages of a civil trial, including the presentation of evidence, examination of witnesses, and cross-examination.

Filing an Affidavit of Defence

The second option available to the defendant is to file an affidavit of defence within thirty days from the date of service of the summons. The affidavit of defence is a critical document in the summary procedure, as it serves as the defendant’s primary means of responding to the plaintiff’s claims.

The contents of the affidavit of defence should address the plaintiff’s claims and provide a reasonable defence to counter the allegations made in the plaint. This affidavit allows the defendant to articulate their version of the events, present any counterclaims or set-offs, and establish any defences they may have against the plaintiff’s claim.

Assessment of Affidavit of Defence

Once the defendant files an affidavit of defence, the court is tasked with examining its contents to determine whether it discloses a reasonable defence. The primary objective of this examination is to ascertain whether there is a genuine issue in dispute, which necessitates a more comprehensive trial in line with the regular procedure.

The court may consider various factors when evaluating the affidavit of defense, including the legal and factual basis for the defendant’s contentions and whether these contentions are substantial enough to merit a more in-depth examination.

If the Affidavit Raises a Triable Issue

If the court determines that the affidavit of defense raises a triable issue, it may grant the defendant “leave to defend.” This means that the case will be transferred from the summary procedure to the regular procedure, where the matter will be thoroughly examined, and both parties will have the opportunity to present their evidence and arguments.

If the Affidavit Does Not Disclose a Reasonable Defense

If the court finds that the affidavit of defence does not disclose a reasonable defence, it may proceed to pass a summary judgment in favor of the plaintiff. A summary judgment essentially means that the court determines that the plaintiff’s claim is valid and that there is no genuine dispute requiring a full-fledged trial. The court may proceed to calculate the amount due to the plaintiff based on the material placed before it and grant a decree in favor of the plaintiff, which typically includes the amount claimed in the plaint along with any costs and interest.

Summary Judgment

The summary judgment is a critical aspect of the summary procedure under Order 37. It is a decision by the court that is reached without conducting a full trial. Instead, the court relies on the materials presented by the parties, primarily the plaint and the defendant’s affidavit of defense, to reach a conclusion.

The court’s role in issuing a summary judgment is to ensure that no genuine dispute exists and that the plaintiff’s claim is clearly valid. This means that the court will examine whether the defendant’s affidavit of defense has presented a credible and substantial defense against the plaintiff’s claim.

Key points regarding the summary judgment include:

The court assesses whether the defendant’s defense is genuine and substantial or merely an attempt to delay the proceedings.
The court considers whether the defendant has raised a triable issue that warrants a more thorough examination of the facts.
The court may pass a summary judgment if it is convinced that the plaintiff’s claim is valid and that there is no credible defense presented by the defendant.
The summary judgment typically includes a decree for the amount claimed in the plaint along with costs and interest, if applicable.

Appeal and Review

Both parties involved in a case under Order 37 have specific avenues for seeking redress if they are dissatisfied with the outcome.

Right to Appeal

Both the plaintiff and the defendant have the right to appeal the summary judgment. If either party believes that the court’s decision is erroneous or unjust, they can appeal to a higher court, seeking a review and a fresh determination of the case. The appellate process allows for a more comprehensive examination of the issues and the evidence presented, and it provides an opportunity for the parties to present their arguments more thoroughly.

Review of Summary Judgment

In addition to the right to appeal, the defendant may also seek a review of the summary judgment under certain circumstances. This review is not automatic and must be initiated by the defendant, who must demonstrate to the court that there was sufficient cause for not filing the affidavit of defense or for any delay in doing so.

A review is typically requested when the defendant believes that they had a valid defense but were unable to present it in a timely manner. The court will evaluate the circumstances and reasons presented by the defendant and may grant a review if it is satisfied that there are legitimate grounds for reconsidering the judgment.

Advantages of Summary Procedure

The summary procedure under Order 37 offers several advantages, both for the litigants and the courts:

Expedited Resolution

The primary benefit of the summary procedure is its capacity to expedite the resolution of cases. By focusing on the key issues and eliminating the need for a lengthy and formal trial, the process saves time for all parties involved and helps clear the court’s docket more efficiently.

Cost-Efficient

The summary procedure is generally less expensive than the regular procedure. With fewer court appearances and less extensive legal documentation, litigants can save on legal costs and other associated expenses.

Streamlined Process

The process under Order 37 is straightforward and streamlined. This simplification makes it accessible to litigants who might not have significant legal resources, allowing them to navigate the legal system with relative ease.

Certainty of Outcome

For plaintiffs with strong claims and defendants with no credible defenses, the summary procedure provides a degree of certainty in the outcome. This means that if the case is clear-cut, the plaintiff can obtain a judgment more quickly.

Lower Judicial Burden

The summary procedure also eases the burden on the judiciary by reducing the number of cases that require lengthy trials. This allows the courts to allocate their resources more effectively and address a broader range of cases.

Conclusion

Order 37 of the CPC in India is a valuable provision that serves a specific purpose in the legal landscape. It streamlines the process for the recovery of debts due under negotiable instruments, offering a more expedited and cost-effective alternative to the regular procedure. The plaintiff is required to meet specific criteria, and the defendant has the choice to enter an appearance or file an affidavit of defense. The court plays a crucial role in assessing the defense presented in the affidavit, determining whether a summary judgment should be passed or if the case should proceed to regular trial. Both parties have the right to appeal, and the defendant may seek a review of the summary judgment under certain circumstances. The advantages of the summary procedure include its efficiency, cost-effectiveness, and the certainty it offers in straightforward cases. By providing an accessible and simplified process, Order 37 of the CPC contributes to a more efficient and equitable justice system in India.

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