There are times when someone owes you money and when you ask them to return it, they avoid you or brush aside the topic on one pretext or the other. The monetary transaction could be anything which they owe you, but are not willing to return the same.
If you are in a situation aforementioned, fret not, because there is a simple and fast remedy available to recover your money.
Introduction
Summary suit or summary procedure is given in Order XXXVII of Code of Civil Procedure, 1908 (herein after referred as CPC, 1908) whose object is to summaries the procedure of suit in case the defendant is not having any defence.
Application & Scope
This order is applicable to
- All the suits upon bills of exchange, hundies, and promissory notes.
- The suits wherein the plaintiff seeks to recover a debt payable by the defendant, arising either on a written contract or on an enactment where the sum sought to be recovered is fixed or on a guarantee where the claim against the principal is in respect of a debt.[i]
A suit can be instituted under this order in High Court, City Civil Court, Court of Small Causes or any other Court notified by the High Court.
Institution
In order to institute a suit under this Order, it is necessary that the nature of suit must be among the one mentioned in the above paragraph. If the category is satisfied, then the suit can be instituted by presenting a plaint in any Court. The plaint shall have to contain the specifications mentioned in Rule 2(1) of CPC.
Proceedings
Once the suit is instituted, summon of the suit as per Rule 2(2) of CPC along with a copy of the plaint and annexure will be sent to the defendant. The defendant will not be defending the suit against him unless, he enters an appearance. In case of default in appearance, the allegations of the plaintiff in the plaint will be deemed to be admitted and a decree in accordance to that will be issued by the Court.
Defendant’s Appearance
After summon is issued to the defendant, he has ten days to make an appearance. This appearance can either be in person or by a pleader. At anytime within the prescribed period of ten days, the defendant by way of an affidavit or otherwise, can disclose such facts sufficient enough to entitle him the right to defend.
Passing of Decree
In the case of summary proceeding, a decree will be passed in the following situations:
- In case the defendant defaults in its appearance then the allegations of the plaintiff against the defendant will be deemed to be true and a decree in the favour of plaintiff will be issued. As per the decree the plaintiff will be entitled to a sum which will not the exceed the sum mentioned in the summon, together with interest at the rate which will be specified in the decree, up to the date of decree and any other sum for cost.
- In case the defendant is allowed to defend the case against the plaintiff, the Court may direct him to give security within a specified time and in case the defendant defaults in payment of security within the prescribed time, then the decree will be passed in the favour of the plaintiff.
- In case the defendant is granted the right to defend and also deposits the security within the reasonable time, the suit will follow the ordinary course and the defendant will be asked to file a written statement under Order VIII.
Advocate Saif Mobhani is an expert in handling Money Suit / Summary Suit matters. If you are looking for the best lawyer in Mumbai to recover your money, Contact Us.
