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Summary Procedure

Summary Procedure

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Published by Priyanka Devgan

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Published by: Priyanka Devgan on Dec 15, 2010
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Order XXXVII Rule 1-7 ` To Prevent unreasonable obstruction laid down by the Defendant .` Summary Procedure.

except in review .Summary Suit Not entitled except by the leave of court. Trial court may set aside Decree cannot be set decree under special aside by the trial court circumstances. Ordinary Suit Defendant entitled to defend as of right.

Bills of exchange.1. debt. Order applies to courtsHC. Hundies. sum recovered is fixed. b. iii. debt or penalty Guarantee. a. Classes of suits it appliesa. Promissory notes. ii. Written contract Enactment. claim against principal is debt or liquidated demand . b. City Civil Court & Courts of Small Causes Other courts HC may restrict/enlarge or vary the operation categories of suits or operation of order 37 2. liquidated demand with or without interest arising on ± i.

provision not prescribed for granting time to file leave to defend .1. 1908 .petitioner not liable to defend suit .petition dismissed.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 .Order 37 Rules 1 and 2 of Code of Civil Procedure. Account payee Cheque ` Suit based on crossed cheque bearing an endorsement a/c payee only can be filed.petitioner again filed leave to defend which was dismissed on ground that not filed with prescribed limit .prescribed time .law provides that after service of notice petitioner must file leave to defend on proper time .whether application for leave to defend can be allowed when prescribed time lapsed .Court rejected plea of petitioner . Gulabchand AIR 1963 Cal 36) Commercial . . ( Tailors Priya v.

Sum payable upon a contingency does not become a debt until the contingency has happened. ` Liquidated Demand.Present obligation to pay an ascertainable sum of money whether payable in presenta or futuro.Amount made certain by mathematical calculation from factors in possession or knowledge of the party to be charged. .` Debt.

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 ` .` S.

of suit Under Order XXXVII of CPC.` ` ` ` ` ` 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. 1908 Summons of suit in Form No. 4 in Appendix B Defendants enters appearance .

Crown Traders Ltd. on account of failure to obtain leave to defend . (Vijaya Home Loans Ltd. vs.The said suit was decreed on the basis of plaint that was deemed to have been admitted. . AIR 1998 Del 183) The present case dealt with a summary suit filed under Order 37 of the Civil Procedure Code.` Court passes a decree on the basis of allegations in the plaint as they are deemed to have been admitted. 1908.

` 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. .

After amendment.Limitation for Application for Leave to Defend ` Period is 10 days from the date of summons is served. defendant must enter appearance and thereafter he has to seek leave to defend. . Obtaining leave is Must ` ` Defendant who has failed to obtain leave to defend cannot be allowed to appear while the hearing is proceeding.

Judgment in favour of plaintiff ifDefendant 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   ` .` ` Begins after court grants leave to contest the suit.

. Entering appearance.` ` ` ` ` ` ` ` Plaintiff serves a copy of plaint with annexure Within 10 days of such service. 4A in Appendix B Returnable not less than 10 days from date of service supported by affidavit verifying Cause of Action & Amount claimed. notice from defendant to plaintiff Enters Appearance. plaintiff serves summons for judgment in Form No. Defendant enters appearance He files address for service of notice Deemed to be served when left at address given by him.

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.Order 37.Appeal allowed . Moolsingh AIR 1958 SC 321) Civil .Test for leave to defend is to see whether the defence raises a real issue and not a sham one . ( Santosh v. Held that once it was found that triable issue exists. Rule 2 & 3 .` ` ` Leave to defend given unconditionally if prima facie case or triable issue.Leave to defend .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 .Code of Civil Procedure . leave should be given.

` discloses such facts deemed to be sufficient to entitle him to defend. . ` If defence illusory or moonshine.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.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. 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. For sufficient reason. It says it deprives opportunity of contesting the suit.

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 4 ` After decree of the court may. 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. under special circumstances. to be deposited with officer of court and proceedings will be stayed until plaintiff gives security. Rule 5 ` Power to order bill etc. 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 .

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