ORDER 37 OF CPC

INTRODUCTION

Order 37 of the Code of civil procedure, 1908 provides for a summary suit for negotiable instruments. A summary suit is a particular and fast way of exercising a claim in an efficient manner because, in this procedure, judges pronounce decisions without listening to the defense.

Now we think that this procedure appears to violate the basic principle of natural justice, ‘audi alteram partem’, that no one should be convicted without a hearing, this method is only applied in circumstances in which the defendant has no defense. 

summary proceedings are a legal remedy for recovering money, resolving business transactions, and resolving contractual disputes. The advantage of this ruling is dependent on the defendant. If the defendant does not have a proper substantive defense to defend his case, the plaintiff is immediately entitled to the judgment. Let’s understand the proceedings of a case under Order 37 of the Civil Procedure Code (CPC). 

Order 37 suit

Order 37 of the CPC establishes the summary procedure. The order was created by keeping in mind some specific suits in order to avoid the undue hindrance imposed by the defendant, who has no defence. In contrast to other civil claims, the trials in summary procedure begin after the judge grants leave to the defendant to challenge the case. The judge dealing with summary suits can pass judgment in favour of the plaintiff if:

• The defendant has not tried to apply for leave to defend, or if such a request has been made but rejected, or 
• The defendant who is allowed to defend fails to abide by the terms and conditions upon which leave to defend has been conferred.

The object of Order 37 suit

The goal of summary proceedings is to eliminate undue interference by defendants who don’t have a defence and to aid in the rapid disposition of cases.

The provision was maintained to guarantee that the defendant does not unduly extend litigation and hinder the plaintiff from getting a judgment by asserting unsustainable and ridiculous defences in a type of matter where quick decisions are essential for the benefit of economic transactions.

Jurisdiction of summary procedure

Claims can be brought in the following cases:

1. Where the defendant resides;
2. The defendant runs a business or works for a living, or
3. The action’s cause originates entirely or partially.

Pecuniary jurisdiction might be determined according to the value of the lawsuit. A claim can be brought in either the high court or the district court, depending on the pecuniary jurisdiction.

If anybody brings a claim in court under Order 37 of CPC, the court has a legal responsibility to inquire into the details of the situation and to analyse the documents submitted in addition to the plaint to ensure that it meets the requirements of Order 37 of CPC. If the hon’ble judge believes that the claim cannot be heard under summary process, he may issue an order treating the plaint as a regular civil complaint.

Rules

Rule 1: Application of Order

Rule 1 of Order 37 talks about the courts and types of lawsuits to which Order 37 applies. It states that a matter filed under summary process may be brought before a civil judge, an additional district judge, a judge of the high court, or any other court with financial authority.

Rule 1(2) applies to all suits based on bills of exchange, hundies, and promissory notes, or those in which a claimant aims only to revive a debt or liquidated demand in funds payable on a written agreement, an enactment, in which the amount to be retrieved is a fixed amount of money or in the essence of any debt apart from fines, and a guarantee concerning a debt or liquidated demand.

Rule 2: Institution of summary suits upon bills of exchange, etc.

Rule 2(1) deals with the plaintiff and the plaint. The plaintiff must provide all the relevant details to the court in his plaint. The plaintiff must provide a particular averment that the complaint is being filed following this Order.

Rule 2(2) provides that the summons should be in the format as prescribed in Form No. 4 in Appendix B or in any other form as prescribed from time to time.

Rule 2(3) specifies that if the defendant fails to appear within ten days of the summons being served upon him, the claim is presumed acknowledged, and the plaintiff is entitled to a decision in an amount not exceeding the sum specified in the summons.

Rule 3: Defendant showing defence on merits to have leave to appear

Rule 3(1) provides that in a claim in which this Order applies, the plaintiff must provide the defendant with the notice to appear and a copy of the plaint. The defendant’s appearance must take place within ten days of the summons being served upon him.

Rule 3(2) provides that all summons, notifications, and other legal proceedings must be delivered to the defendant at the address provided by him.

Rule 3(3) states that on the day when the defendant appears in court, he must notify such attendance to the plaintiff’s pleader or the plaintiff personally either by notice delivered or by prepaid letter.

Rule 3(4) says that if the defendant appears, the plaintiff must then issue a summons for judgement in Form number 4A in Appendix B on the defendant. It must contain an affidavit certifying the basis of action and the sum claimed and indicating that there is no defence to the suit in his opinion.

Rule 3(5) says that the defendant may apply for leave to defend within ten days of the delivery of such notice to appear for judgement by affidavit or otherwise reveal such factual information as may be deemed sufficient to enable him to justify, and it might be given to him unquestioningly or on such conditions as the court deems fit. Furthermore, the provision states that permission to defend will not be denied unless the court is convinced that the facts revealed do not suggest a significant defence or that the defence is absurd or unreasonable

Rule 3(6) provides that if the defendant does not ask for permission to plead, then-

1. The plaintiff has the right to judgement immediately, or
2. The court may order the defendant to provide such assurance as it deems appropriate. 

Rule 3(7) provides that if sufficient cause is proven, the postponement of entering an appearance or seeking permission to defend the action may also be allowed.

Rule 4: Power to set aside the decree

The court has the authority to set aside the ex-parte decree entered in summary litigation under Rule 4 of Order 37. If it is fair to the court, the court may set aside the decree, give a stay of execution, or give any other permit to the defendant to attend to the summons and defend the claim.

Rule 13 of Order IX of the CPC deals with setting aside ex parte rulings. The defendant must show that the summons was not properly served or that he was prohibited from attending the hearing for whatever reason.

Rule 5: Power to order bills, etc., to be deposited with the officer of the court

Under Rule 5 of Order 37, the court may direct that the disputed negotiable instrument be submitted by a court official.

The court may also ask the plaintiff or defendant to pay some security in the form of expenses to assure the plaintiff or defendant’s good faith.

Rule 6: Recovery of cost of noting non-acceptance of dishonoured bills or notes

Rule 6 of the Order 37 provides that the possessor of any dishonoured bills of exchange or promissory note may have the rights under this Order for the restitution of the costs incurred in the recovery of the value of such bill or note.

Rule 7: Procedure in suits

Rule 7 of Order 37 says that, except as provided in the order, the procedure for an ordinary civil suit also applies to summary procedures.

Procedure in summary suits

The procedure followed in a summary suit is as follows

1. The plaintiff files a complaint.
2. Summons are given to the defendant to be present in court. Summons must include the sum of money that is claimed in the litigation as well as a copy of the plaint.
3. The defendant must appear within 10 days of receiving the summons.

1. If the defendant fails to attend, the claim is presumed acknowledged, and the plaintiff is entitled to a decision in an amount not exceeding the sum specified in the summons.
2. If the defendant appears within 10 days, he must provide notice of his attendance to the plaintiff’s counsel or to the plaintiff himself, and he must also submit in court an address for service of notices on him.

4. After receiving the defendant’s notification of presence, the plaintiff issues him with a summons for judgment.
5. The defendant should ask for permission to defend within 10 days of receiving the summons, and such permission will be given only if the defendant’s declaration reveals information that the court thinks is adequate to allow him to defend.

Procedure for the appearance of a defendant

The defendant does not have any right to defend his or her case under summary procedure. The defendant must produce his presence by itself or through pleaders, within 10 days of receiving the summons. The defendant must notify such attendance to the plaintiff’s pleader or the plaintiff personally on the day of making the presence. If the defendant makes an appearance, the plaintiff must then issue a summons for judgement on the defendant.

The defendant may apply for notice to defend such a suit by affidavit or disclose such factual information as may be deemed fit to enable him to protect at any time within 10 days of the delivery of such summons; such defence shall not be denied unless the court believes that the facts revealed by the defendant are ineffective.

How Order 37 CPC benefits the plaintiff

The main advantage of an Order 37 suit is that the plaintiff is entitled to a judgement immediately if the defendant fails to establish that he has a significant defence in his case. Summary proceedings are legal remedies for recovering money, resolving business transactions, and resolving contractual disputes. In comparison to a regular suit, such proceedings are often easier to establish the plaintiff’s case and more difficult for the defendant’s side.

What distinguishes summary suits from ordinary suits

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