Introduction
The article will deal with the ingredients of order 37 of Civil Procedure Code. Further, cases and explanation will be given as to what will constitute a summary suit and what does not fall under the ambit. It is to be noted that, a summary suit cannot be constituted by any court without the official notification given by the High Court itself.
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Issues which has been discussed
- What will constitute a summary proceeding?
- When can an unconditional leave to defend can be initiated?
- Summary Suit u/ O. XXXVII of CPC, 1908
- What can constitute a summary procedure?
- Applicable Courts
R.1) shall apply to the following Courts- HCs, City Civil Courts, Small Causes Courts and other courts.
In respect of other courts it is upto the HC, to restrict, expand or vary the categories of suits that shall be brought under this order.
- Classes of suits
Suits upon bills of exchange, hundis & promissory notes;
Suits in which the plaintiff seeks recovery of debt or liquidated demand in money payable by the defendant.:
Which is on a written contract
Sum sought to be recovered is a fixed sum of money and not in the form of a penalty
On a guarantee basis- suit for recovery of receivables instituted by any assignee of a receivable
- What will not constitute summary proceedings
It was laid in the case of W B Decorating Co v Damodar1 that a suit for recovery of price of goods sold and delivered does not come under Or 37. In this case the defendant claimed that the plaintiff’s claim was fictitious and the defendant had a substantial defence to put forth. It was also claimed that such a suit cannot come within the meaning od Order 37 of the Code. The application filed for leave to defend was thereby upheld and the Court granted the same. The Court held that the suit may be held to come under Order 37 only if it can be shown that the plaintiff is seeking to recover, by the suit, a debt or a liquidated demand in money arising on an enactment.
In this case the claim of the nature as made in this suit cannot be said to arise on an enactment. It arises from the contract of sale and the breach thereof. Moreover, an implied contract is outside the scope of O. 37. The case facts are similar to Radha Vyapar case, the application filed by the RP is as per bills, invoices and tally entries taken into account for the last three years. There is no evidence of a written contract.
- What will constitute summary proceedings.
In the case of Punjab Pen House v. Samrat Bicycle Ltd.,2the Court held that when the goods are supplied through a bill on certain terms and conditions duly agreed to between the parties; it amounts to a written contract and O. 37.Cl (2)(b) applies to the same.
Suit based on invoices and bills which contained the terms of supply and other requisite terms was held triable as summary suit- Bharat Forge Ltd. V. Onil Gulati3.
- Unconditional leave to defend
Rule 3 of O. 37 deals with procedure for the appearance of defendant: in a summary suit the defendant is not entitled as of right to put in a defence. He can apply for leave within 10 days from service of summons. Therefore, if the Judge is of the opinion that the defence raises a triable issue, leave should ordinarily be granted unconditionally.4
ISSUE:
Whether detailed proceedings vested under CPC can be exercised by a tribunal?
This case decided in the CESTAT deals with the pertinent issue, wherefore using the principles of natural justice, the appellate tribunal sets aside the impugned order.
In M/s Krishna Knitwear Technologies Ltd v. CCE Vapi5
The order passed by the Customs, Excise & Service Tax Appellate Tribunal, was set aside by the Appellate tribunal stating that principles of Natural Justice was not followed while passing the impugned order. Thereby, not stating proper reasons as to why “cross examination” proceedings were rejected by the Coram. In this case a specific request was made by the appellant for cross examination. The Adjudicating Authority had not taken any decision wrt whether to grant or deny the cross examination. The appellate body had further commented that, the petitioners had a right to seek cross examination in the facts of the present case, and also had a right to be told whether such application is being granted or refused before the final order was passed. Further, the Court stated that “Whenever the petitioners prayed for cross examination and reasonably expected that the same would be granted, they cannot be expected to participate in the adjudicating proceedings up to the final stage.” Hence, The Appellate authority had quashed the order.
1 A 1982 C 386
2 A 1992 Del 1
3 AIR 2005 Delhi 369 (372)
4 Skylark Motors v. Lakshmi Commercial Bank Ltd., AIR 1997 Del 46.
5 ITA No. 2565/Mum/2012
