“Order XXXVII Civil Procedure Code is one of the best provisions in the hands of a proposed Plaintiff wanting to institute a Civil Suit, but should anybody be condemned unheard?”
Introduction:
Summary procedure which is also known as a summary suit is a formal process used for imposing an entitlement that comes into force faster and more effectually than usual techniques. Basically, its purpose is to sum up the process of action on the occasion the defendant has no defence. A Summary process is different and unique in the perception that in such a case the defendant is not privileged as a subject of entitlement to protect the suit, as an ordinary action. Summary cases are undemanding to set up and much complicated for the defendant to protect or defend than Ordinary action. While this prima facie would appear to be violative of the cardinal principle of natural justice, nobody should be condemned unheard, this procedure is only used in cases where the defendant has no defence and is applicable to only limited subject matters.[1]
What is Summary Procedure?
Summary process is stated in the Order 37 of Code of Civil Procedure, 1908 whose purpose is to sum up the process of action in case the defendant has no defence against himself.
In Summary action, the litigant is not authorised as a matter of entitlement to protect the lawsuit. The litigant has to acquire the leave of the Court and if he doesn’t pertain for that leave in the mentioned duration or if Court rejects such leave, the appellant gets an order in his service.
The main purpose of summary action is to state speedy and inexpensive cure and fast disposition of the Civil Case.
Analysis of Order XXXVII
Order 37 of the Code of Civil Procedure states the summary process for immediate disposition of the suits or cases. The advantage of this order is subjected to the organisation that the litigant stands no considerable protection to make his suit, authorising the appellant to decision immediately. Summary actions are an effectual cure under the legislation for reviving money, affairs regarding commerce settlement and contractual topics.
Implying to the monitoring in the case of Navin Chandra, the different and absolute purpose of Order 37 CPC is to provide an incentive to commerce and industry by stimulating confidence in commercial people that their source in regard of money avows of liquidating amounts would be efficiently determined and their claims will not hold on for decades ceasing their money for a long duration. Such cases are generally smooth to set up the appellant’s case and complex for the appellant’s case as to that of an ordinary action.
Applicability
Summary actions can be set in motion, concerning to the unique dominion, in the ensuing courts as stated in Rule 1 Order 37:
- Civil Courts
- High Court
- Courts for small issues
- Other courts as informed by the High Court of the particular states.
And High Courts are conferred power by notification to restrain the functioning of the Order 37 and also may as needed further restrain, extensive or differ the classification of suits under the scope of Order 37 of CPC.
It doesn’t have common applicability; its establishment is to cause to the identity of cases stated under rule 1(2) of the order, which are as follows:
- Suits upon promissory notes, bill of exchange and remittance(financial instrument)
- Suits for revving a credit or settled demand in money, with or without interest, arising:-
- On a written contract, or
- On an enactment (the recoverable sum should be fixed in money or it should be in the nature of debt other than a penalty), or
- On a guarantee (here the claim should be in respect of a debt or liquidated demand only).[1]
In the above categorisation under 2(a) of the provision, the ambit of the term “written contract” is meant to a wider degree. Mentioning the judicial monitoring it can be considered that the written contracts regarding Summary actions are not expanded just to agreements, signed by agitated parties but consider just in its meaning all such agreement which are expressed and that its enforceability can be traced from the conduct of parties to the contract, although such expressed contract may not be so signed by respective parties. [2]There are many examples where the court lowered the strict meaning and rather embraced loose-fitting one, for example, Invoices or Bills are written agreements or contracts and drops under the scope or limit of Order 37of CPC, Summary actions can be registered on the basis of confirmed Balance and conciliating statement, the obligations noted in the Balance sheet which was signed by members of the company etc.
Initiating a Suit under Order 37(Procedure)
The below mentioned are the steps for the process of instituting a suit under summary process:
1. Plaint or a charge
The process is initiated by the charge or a plaint submitted in the court of actual authority. The charge includes general components of plaint such as facts regarding the redress or relief against another, it also includes a declaration that the case filed and remedy so hold falls under the scope of Order 37 of CPC.
2. Court order
After the plaint has been submitted, the next step is as the respondent is required to give out summoned in the mentioned form under Rule 2 of Order 37 including the copy of charge submitted.
3. Leave to respondent
Subsequent to the service of summon for judgment within the period of ten days from such service, the defendant has to apply for leave to defend his case[3]. In the Summary process, a defendant is not conferred to the entitlement to protect as it is in an ordinary case. It is a discretionary authority of the court that must be implemented reasonably.
4. Non-Application for the Leave to Defend/ Non-Compliance of Terms
In cases, where a litigant has not applied for the leave to protect in the mentioned time duration, or where such leave application is rejected or where the circumstances on which leave was conferred are not satisfied with, appellant stands entitled to the decision at once.
5. Setting aside an order
In CPC Order IX Rule 13 deals in setting aside the ex-parte decree where the defendant satisfies the court that the summons was not duly served or he was prevented by any sufficient cause from appearing in the hearing.[4] In Summary cases, setting aside an order, a litigant has to show specific conditions to the court’s fulfilment.
The essence of various decisions on Order 37 has been explained in the case of Sunil Enterprises and Anr. v. SBI Commercial and International Bank Ltd.
- If the respondent satisfied the Court that he has a nice defence to the hold on advantages, the respondent is authorised to unrestricted leave to protect.
- If the respondent lifts a prosecutable matter highlighting that he or she has a reasonable or in good faith or a fair defence, although not feasibly nice defence, the respondent is authorised to unrestricted leave to protect.
- If the respondent has no protection in his favour, or if the defence is unreal or imagined, the respondent is not entitled to leave protect.
- If the respondent has no defence or the defence unreal or imagined, the Court may show leniency to the respondent by authorising him or her to attempt to prove a defence but at same duration protect the plaintiff levying the condition that the amount held should be paid into Court or secured.
In Southern Sales and Services and Ors. V. Sauermilch Design and Handels GMBH, it has been held that “Unconditional leave to defend a suit shall not be granted unless the amount as admitted to be due by the Defendant is deposited in Court.”[5]
Summary procedure under CPC is a disguise in the name of speedy justice?
“Justice hurried is justice buried”
The above-mentioned statement is monitored by the court. Referring to the case of Navin Chandra which is mentioned in this article as well, such summary cases are generally smooth to set up appellant’s case and complex for the appellant’s case as to that of an ordinary action.
A leave conferred to protect, it no doubt detains the trial but it will be a distortion of justice where an appellant in regard of Xerox documents, replicating just to the point extracts of contract and without the proof and witnesses gets an order only in regard to that he has been able to make out a prima facie case, that too in most cases before a Trial Court. A few decades of Trial is much better than a case where an order has been passed without giving an accurate opportunity to the respondent to put out its suit.
Difference between Summary Suit and the Ordinary Suit
The main difference between both the suits is that later the respondent will get a possibility to protect him only if left to protect is granted.
- Not like ordinary cases, summary cases are limited to affairs relevant to bills of exchange, promissory notes and contracts, enactments, guarantees of specified nature. Interestingly Res Judicata is not applicable to summary suits, i.e. summary suits can be filed on the matter directly and substantially in issue in a previous ordinary suit.[6]
- In summary cases, in the suits of not appearance of the respondent. An order which is not against the appellant is passed easily, while in ordinary cases usually, various court appearances are set out and only then the non-appearance order is passed.
- In Summary cases, setting aside a non-appearance order is stricter and special situations for not appearing required to be forth, while in ordinary cases just enough cause needs to be shown.
Conclusion
It is modestly ventured that summary cases act like an imaginative and creative solution to aid prevent unreasonable barriers by a respondent who has no maintainable defence. Summary cases would be favourable to businesses as except the respondent is able to exhibit that he has a real defence, the appellant is entitled to a decision. Order 37 causes an accurate technique that makes sure that the respondent doesn’t extend the case especially as in commercial affairs duration is of the importance and aids further the cause of Justice.
References:
[1] Arshiya Chaturvedi, CPC Order 37: A Disguise in the Name of Speedy Justice or Not, LEGAL DESIRE, (January 25, 2019), https://legaldesire.com/cpc-order-37-a-disguise-in-the-name-of-speedy-justice-or-not/
[2] Chaturvedi, Supra Note 2
[3] Rule 3 & Rule 7, Order XXXVII, Code of Civil Procedure, 1908
[4] Karumili Bharathi vs Prichikala Venkatachallam, AIR 1999 A P 427
[5] Order 37, CPC, Summary Suits, LEGAL SERVICE INDIA, http://www.legalservicesindia.com/article/1514/Order-37,-CPC,-Summary-Suits.html
[6] Supra Note 1
- Summary Suits Explained, LAWOCTOPUS, (September 9, 2019), https://www.lawctopus.com/summary-suits-explained/
- Arshiya Chaturvedi, CPC Order 37: A Disguise in the Name of Speedy Justice or Not, LEGAL DESIRE, (January 25, 2019), https://legaldesire.com/cpc-order-37-a-disguise-in-the-name-of-speedy-justice-or-not/
- Chaturvedi, Supra Note 2
- Rule 3 & Rule 7, Order XXXVII, Code of Civil Procedure, 1908
- Karumili Bharathi vs Prichikala Venkatachallam, AIR 1999 A P 427
- Order 37, CPC, Summary Suits, LEGAL SERVICE INDIA, http://www.legalservicesindia.com/article/1514/Order-37,-CPC,-Summary-Suits.html
- Supra Note 1
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