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A summary suit under Order XXXVII

suit under Order XXXVII

Suit under Order XXXVII

The civil remedy to recover money is through the institution of a suit under Order XXXVII in a court of jurisdiction. We can institute the suit under Order XXXVII of the said code, in case there is an admitted liability as to the promissory note, hundies, etc. Order XXXVII is a summary procedure.

Jurisdiction of Suit under Order XXXVII

We can institute a suit at the place

  1. where Defendant lives,
  2. a place where he carries on business or works for gain or
  3. the cause of action wholly or partly arises.

After determining this territorial jurisdiction, the pecuniary jurisdiction is to be determined.  The value of the suit has to be considered for this purpose. Based on the value we can file the suit in the District Court.

Limitation:

The suit can be filed within 3 years from the date of cause of action has arisen. The said period of limitation cannot be condoned.

Essentials of a Suit under Order XXXVII :

Order XXXVII is a summary procedure relying on the fact that there is an unambiguous written admission of debt. The Order applies to the following class of suits:

  1. Suits upon bills of exchange, hundies, and promissory notes

  2. 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
    • on a written contract, or
    • on an enactment wherein the amount to be recovered is a fixed sum of money, or a debt other than a penalty, or
    • guarantee, where the claim against the principal is in respect of a debt or for liquidated demand only.
    • suit for recovery of receivables instituted by any assignee of a receivable

A suit is instituted by way of a Plaint. The plaint is the description of the facts of the case and the exact amount being claimed along with any interest. In case of a summary suit, it should be specifically averred that the suit has been filed under Order 37, that no other claim has been made other than what lies within the ambit of order 37.

Documents:

The Plaint is to be accompanied by the supporting documents viz,

  • written contract,
  • particulars of claim and
  • correspondences, if any

This plaint is required to be proved by way of an accompanying affidavit and an appropriate verification of the facts.

Court fee:  Court fee as per the schedule is required to be paid by the Plaintiff. A suit shall be returned in case the same is not filed along with the court fee.
Once the said plaint is filed in Court, the same shall be numbered by the Court.

Proceeding after the institution of a suit under Order XXXVII :

Issuance of summons: The Court after examining the plaint and its admissibility shall issue a summons which is required to be duly served upon the Defendant/s. The summons for judgment is required to be filed within 10 days from the date of service.

Leave to defend: Defendant is obliged to enter an appearance within 10 days of service of summons. After entering an appearance, Defendant shall be required to file his Leave to Defend as in a summary suit the Defendant does not have a right to contest till it proves that there is a triable dispute and that the debt is not an admitted debt/liability.

Written statement: Only after the hearing on Leave to Defend and favorable order having been passed in favor of Defendant, Defendant is entitled to file the Written Statement within the timeline prescribed.

Trial and argumentsTrial commences hereinafter and after the final arguments the decree is passed.

DecreeIn case the Defendant fails to enter appearance within 10 days of service of summons, or in case even after appearance the Defendant is not able to make out a case for deserving a Leave to Defend, the suit is decreed in favor of the Plaintiff.

Where the matter concerns penalties or any other uncertain amount, one cannot file a summary suit.

When there is no written contract/agreement between the parties, then a normal suit for recovery has to be instituted.

EXECUTION OF THE DECREE:

Decrees can be executed by way of an Execution Application filed in the jurisdiction of the place where the assets of the Defendant/s are situated. In case of non-satisfaction of decree the code also provides for imprisonment for the Defendant/s.

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