Suri & Company, Law Firm Order 37-Summary Procedure Civil Procedure Code, 1908 Presentation by: Pallavi Tayal Litigation Department 24 th September, 2011
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Suri & Company, Law Firm
Order 37-Summary ProcedureCivil Procedure Code, 1908
Presentation by:Pallavi TayalLitigation Department24th September, 2011
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Introduction of Order 37Object of Order 37 Supreme Court View (2010) 9 SCC 256
Salient features of a summary suit
Leave to defend Duration ProcedureAnalogous provisions Order 6, Order 7 - Order 29(1996) 6 SCC 660Contradictory(2011) 3 Scale 33 views
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Order 37 Rule 1Courts and classes of suits to which the order applies
CourtsClassesHigh Court/City Civil Courts Bills of exchange,and Court of small causes Promissory noteOther Courts and Hundies Written Contracts /agreement Against Guarantor
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Interpretation of the word Written ContractWidest possible interpretation
Relevant case laws Delhi High Court (AIR 2001 DEL 357)Invoices/Bills Are Written Contracts within the purview of Order 37
Bombay High Court (BOM CR 218)Documents exchanged between parties may be construed as Agreement in writing
Delhi High Court (90(2001) DLT 777)Summary suit can be filed on basis of confirmed balance and reconciliation statement.
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Order 37 Rule 2INSTITUTION OF SUMMARY SUIT
(1) A plaint is instituted by the Plaintiff containing:A.Specific averment B.That no other relief is claimed
(2)Summon of suits Form No. 4
(3)The Defendant shall not defend the Suit unless he enters an appearance. Default in appearance, the allegations in plaint shall be deemed to be admitted.
CASE LAWDelhi High Court in AIR 1998 183 has held that in case the Defendant fails to appear, the Court can pass a decree on the basis of the allegations in plaint.
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Order 37 Rule 3Procedure for the appearance of the Defendant
This Rule provides the mode of service of summons and leave to defend.Defendant must apply for leave to defend within 10 days from the date of service of summons.Case LawsAIR 1958 SC 321Leave should be granted If Defendant raises a triable issueLeave granted (with conditions)-(2006)92 DRJ 158- (2009)157 DLT 240
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Order 37 Rule 4Power to set aside decree
The Court can under Rule 4:Set aside decreeIf it feels reasonableStay or set aside executionto CourtMay give leave to defendScopeAIR 1965 SC 114This inherent power is exercised in exceptional circumstances
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Principles for granting leave to defendTriable issueWhat is triable issue according to Supreme Court (1991)High Court of Calcutta Laid certain principles(AIR 1949 Cal 479)
Division Bench of Delhi High Court in 1984 reaffirmed these proposition(1984) 25 DLT CSN 33
Supreme Court in 1977 affirmed the said principles(AIR 1977 SCJ 77)
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