By Varoon Biyani, 2nd Semester, Amity Law School, Noida
Intern at Counsel Quest
Summary suits require an introduction to ordinary people. Speaking in layman terms, these genre of suits are league different from the regular suits. An easy way to understand it is that ‘summary’ means ‘something short and to the point’, and it is in the same way these cases are adjudicated. Summary suits finds its mention at Order 37 of the Civil Procedure Code, 1908, and it involves all such suits under the category of negotiable instruments, liquidated damages and debts.
The summary suits help the plaintiff to get fast relief against recovery of debts, especially when the debt is admitted or apparently seen to be as admitted. The procedure for it is explained in Rule 2 of Order 37, CPC, which tells that once the plaint has been filed the defendant has 10 days to appear before the court or the decree will be given in the favour of the plaintiff. Even if the defendant appears before the court, he/she will have an opportunity to submit an application seeking ‘Leave to Defend’ along with the affidavit and considerable proof that the Defendant is eligible for defense and the facts deserve the suit to go to the trial. This type of case has two summon procedure, wherein one summon shall be given after the filing of the plaint and the second summon is issued to the defendant after the acceptance of the court if such Summary Suit will move to the trial. A party aggrieved by any order of the Court has a remedy to challenge such orders in an appellate court or a court holding jurisdiction over the matter.
It is a real advantage for the Plaintiff over the Defendant in which all he has to do is show that his case comes under the Order 37 and the burden of proof will fall to the defendant, in a case where the defendant is not able to put together substantial amount evidence, the decree will be passed in the favour of the plaintiff. To understand it better, let’s take an example where A is the Plaintiff who filed his plaint under the Order 37 Suit regarding the Dis-honoring of a Cheque, Now the Court Issues the first Summon To the defendant B to appear before the court if he has a Substantial Proof to Plead his case, if not the decree is given then and there. We can therefore see that filing a Written Statement is not a matter of right to the Defendant, but a privilege granted by the Court. Moreover, since the Plaintiff has to file all documents in original at the time of filing alongwith affidavit stating its genuiness and attribution to the claim, there arises no question of proving the documents by oral evidence or otherwise at the stage of leading evidence. In short, a Summary Suit, effectively jumps all the procedure set forth in a regular civil suit to pronouncement of judgment, in case the Defendant fails to seek leave to defend or fails to procure a leave to defend.
A Summary Suit can be filed against almost anything relating to the money when the debt is created in the form of Cheque, Bills of Exchange, Hundies, Promissory Notes, Liquidated Amount or Guarantee, where the debt is primarily proved by the existence of the said documents and where there is an expressed or implied admission of the debt by the defendant.
It is a Preconceived notion that the recovery cases in India takes ages to come to the conclusion and it does not help the people in any way as the majority of them believe that recovery suits are just waste of time and they chose not to file for it. When it comes to Summary Suits under the Civil Procedure Code, “Audi Alteram Partem” which means fair hearing, has to be followed in its strictest manner. The court upon receiving a plaint, which suffices the conditions of a being it designated as a Summary Suit, may grant the Leave to defend to the Defendant on the following Conditions:-
1. The Defendant has substantial proof to be granted leave to defend
2. The Defendant has Reasonable Proof for the defence in the trial
3. The Court believes that there may be a possibility for the case to tilt in the favour of the defendant.
4. No Defense but the court orders the Defendant to submit the security deposit so that even if the court gives judgment in the favour of plaintiff the conditions will be satisfied.
Keeping in Mind the four conditions to be satisfied for the “Audi Alteram Partem” (Listen to the other side ) is followed under the present form of suit.
In the case of Indian Rayon & Industries Ltd versus M/s Sirohya, It was held that to obtain Unconditional Leave to Defend the defendant shall provide the court with enough evidence to proceed the case and was not sufficient to raise any petty excuses. But if there is a fair proof in the excuses put up by the defendant the court shall consider that, and a fair proof means that deals with the meaning of the document on which claim it is based or on the basis for the wrong amount for which the plaint was filed.
Summary Suits is an effective and time saving procedure in the CPC, but the same is found to be hardly used. It is also a great tool for the Plaintiff so that the process of Money Recovery is faster and more efficient along with it to remove the preconceived notion of time consumption in a regular civil suit. It is so refined that it does not ignore the basic function of “Audi Alteram Partem”. Summary Suits include all the Negotiable Instruments along with the liquidated debts, Enactments and Written Contracts, that can apparently raise the presumption of a debt payable.