Recovery suit can be filed under Order 37 CPC, which is also known as summary procedure. A summary suit is a special and fast way of exercising a claim in an efficient way because, in this procedure, judges pronounce decisions without listening to the defence. Though this appears to be a violation of 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 defence.
Order 37 CPC
Arrest and Attachment before Judgment
Arrest before judgment
1. Where defendant may be called upon to furnish security for appearance.—Where at any stage of a suit, other than a suit of the nature referred to in Section 16, clauses (a) to (d), the Court is satisfied, by affidavit or otherwise,—
(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,—
(i) has absconded or left the local limits of the jurisdiction of the Court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or
(b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,
the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance:
Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff’s claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.
2. Security.—(1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.
(2) Every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defendant may be ordered to pay in the suit.
3. Procedure on application by surety to be discharged.—(1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such surety to be discharged from his obligation.
(2) On such application being made, the Court shall summon the defendant to appear or, if it thinks fit, may issue a warrant for his arrest in the first instance.
(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the defendant to find fresh security.
4. Procedure where defendant fails to furnish security or find fresh security.—Where the defendant fails to comply with any order under Rule 2 or Rule 3, the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed against the defendant, until the decree has been satisfied:
Provided that no person shall be detained in prison under this rule in any case for a longer period than six months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit does not exceed fifty rupees:
Provided also that that no person shall be detained in prison under this rule after he has complied with such order.
High Court Amendments
Kerala, Laccadive, Minicoy and Amindivi Islands.—Renumber Rule 4 as sub-rule (1) and insert sub-rule (2) as follows:
“(2) The provisions of Order XXI, Rule 39 as to allowances payable for the subsistence of J.D. shall apply to all defendants arrested under this order.” (9-6-1959)
Attachment before judgment
5. Where defendant may be called upon to furnish security for production of property.—(1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,—
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,
the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.
6. Attachment where cause not shown or security not furnished.—(1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.
(2) Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.
High Court Amendments
Bombay, Goa, Daman and Diu.—For the existing sub-rule (2), substitute the following:
“(2) Where the defendant shows such cause or furnishes the required security or gives an undertaking to the Court to do or not to do a thing, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.” (1-10-1983 and 1-4-1987).
7. Mode of making attachment.—Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.
8. Adjudication of claim to property attached before judgment.—Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner herein before provided for the adjudication of claims to property attached in execution of a decree for the payment of money.]
9. Removal of attachment when security furnished or suit dismissed.—Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.
10. Attachment before judgment not to affect rights of strangers, nor bar decree-holder from applying for sale.—Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.
11. Property attached before judgment not to be re-attached in execution of decree.—Where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.
11-A. Provisions applicable to attachment.—(1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of Rule 11.
(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.]
High Court Amendment
Madras (Pondicherry).—After Rule 11-A insert Rule 11-B:
“11-B. Order of attachment to be communicated to the registering officer.—Any order of attachment passed under Rule 5 or 6 of this order and any order raising the attachment passed under Rule 9 of this order shall be communicated to the registering officer within the local limits of whose jurisdictions the whole or any part of the immovable property completed in such order, is situate.” T.N. Govt. Gaz., 15-7-1987 Pt. III, S. 2, p. 250.
12. Agricultural produce not attachable before judgment.—Nothing in this Order shall be deemed to authorise the plaintiff to apply for the attachment of any agricultural produce in the possession of an agriculturist, or to empower the Court to order the attachment or production of such produce.
13. Small Cause Court not to attach immovable property.—Nothing in this Order shall be deemed to empower any Court of Small Causes to make an order for the attachment of immovable property.]
High Court Amendments
Kerala, Laccadive, Minicoy and Amindivi Islands.—For “Court of Small Cause” substitute “Court exercising Small Cause Jurisdiction”. (9-6-1959)
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 judgement 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.
Where the case is to be filed?
- Where the defendant resides;
- The defendant runs a business or works for a living, or
- 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.
The limitation for filing suit under Order 37, CPC is same as that of ordinary recovery suit.
Ad-valorem Court fees is payable on the suit as per Section 7(i) of the Court Fees Act, 1870.
DRAFT OF A SUIT UNDER ORDER 37 OF CPC
IN THE COURT OF SENIOR CIVIL JUDGE,
(Through Shri………., Director) ……Plaintiff
(Through Shri………………Director) ……Defendants
SUIT FOR RECOVERY UNDER ORDER 37 OF CPC
1. That the plaintiff is a company registered under the Indian Companies Act, 1956 and Shri……….is the director of the company duly authorized to sign and verify pleadings, swear affidavit, depose on behalf of the company as per the resolution passed in the Board of Directors at the meeting of the company held on….
2. That the defendant is also a company registered under the Indian Companies Act, 1956 and Shri……….is the director of the company and is responsible for day to day affairs of the defendant company.
3. That the defendants had been purchasing computer peripherals from the plaintiffs and in consideration thereof issued the following cheque/cheques:
4. That the said cheques when presented for payment by the plaintiffs through their bankers,……… were returned dishonoured on account of ‘insufficiency of funds’ in the account of the defendants maintained with the bank.
5. That after dishonour of the cheque, the plaintiffs contacted the defendants and called upon them to make the payment, but the defendants avoided the payment on flimsy and untenable grounds.
6. That as the defendants have failed to make the payment, the plaintiffs bag boy have no other alternative, but to file the instant suit against the defendants.
7. That not making payment after the purchase of the goods shows ulterior and malafide motive of the defendant which has resulted in wrongful gain to the defendant and wrongful loss to the plaintiff.
8. That the defendants have no right to withhold the payment of the plaintiff without any cause or justification and as the defendants have failed to make the payments due to plaintiffs, cause of action has arisen for filing the instant suit against the defendant.
9. That the cause of action for filing suit arose on……….when the goods were actually sold to the defendants and again arose on……….when the cheque was issued by the defendants and it further on……….when the cheque issued by the defendants was returned dishonoured.
10. That the value of the suit for the purposes of Court fees and jurisdiction has been fixed at Rs………..on which a Court fee of Rs……….has been affixed.
11. That the goods were supplied at………,payment was to be made at………., cheque was issued at……………and the defendant has its office at………., as such……………Courts have jurisdiction to try and adjudicate upon the instant suit.
12. That nothing which cannot be claimed under Order 37, CPC has been claimed in the instant suit.
The plaintiffs pray for the following relief(s):
(i) A decree for a sum of Rs………. (Rupees……….only) may be passed in favour of plaintiff and against defendant.
(ii) Pendente lite interest may be awarded.
(iii) Any other relief/reliefs which this Court may deem fit and appropriate under the circumstances may be passed against the defendants.
Verified at……….on this day of……….that the contents of paras 1 to 9 are correct as per my own knowledge and as per the books of accounts and other records maintained by the company in its ordinary course of business and contents of paras 10 to 12 are correct as per the information received and believed to be correct. The last para contains the prayer to this Hon’ble Court.
LIST OF DOCUMENTS
|Copy of Board Resolution authorizing the Plaintiff’s authorized representative
|Original Dishonored Cheque
|Cheque Returning memo dated _____________
|Copy of Legal Notice dated ____
|Postal Receipt No. ___________ dated ________.
|Copy of Invoices
|Any Other document with the kind permission of the Hon’ble Court
Advocates for the Plaintiffs
DRAFT OF AFFIDAVIT
IN THE COURT OF SENIOR CIVIL JUDGE,
(Through Shri………., Director) ……Plaintiff
(Through Shri………………Director) ……Defendants
I, ___________, Son of _____________, Aged about ____ years, resident of _______ _________________ _____________, do hereby solemnly affirm and declare as under:
1. That I am the authorized representative of the Plaintiff in the above Suit and I am well conversant with the facts and circumstances of the case and application to depose the present affidavit.
2. That I have read and understood the contents of the accompanying Plaint and I state that the same are true and correct to my knowledge and the no part of it is false and nothing has been concealed there from.
Verified at New Delhi on this ______day of ____, 20__ that the contents of the above affidavit are true and correct to my knowledge and as derived from the records of the case, no part of it is false and nothing material has been concealed there from.