In a typical case under sec.

138 of the Negotiable Instruments Act, 1881 (NI Act) following

proceedings, which we have tried to explain with the help of a flow chart, take place for the
prosecution of the offender:-
© 2016, Vaish Associates Advoc
 Order 37, CPC (Summary Suits): A neutral analysis
Civil litigation, especially recovery suits generally termed to be a long drawn battle and regarded as
something best avoided, is not so. The general belief that by filing a recovery Suit against a Debtor
will go on for years at large, is not so, if one knows the real scope of Order 37 of the Civil Procedure
Code, 1908.

Order 37 CPC is one of the best provisions in the hands of a proposed Plaintiff, wanting to institute a
Civil Suit. Broadly it states as under:
Rule 1, Sub-Rule 2 makes it applicable to all suits upon bills of exchange, hundies and promissory
notes or the ones in which a Plaintiff seeks only to recover a debt or liquidated demand in money
payable on a written contract, an enactment, where the sum to be recovered is a fixed sum of money
or in nature of any debt except penalty, a guarantee - in respect of a debt or liquidated demand.

Rule 2 requires an Order 37 Suit to contain among others, a specific averment that the Suit is filed
under this Order and no relief which does not fall within the ambit of this Rule is claimed.

Under Order 37, there are two stages of getting the Suit decreed. One is at the stage of Rule 2(3)
and the other is at the stage of Rule 2(6).

Rule 2(3) states the procedure for appearance of Defendant which is within 10 days from the service
of the summons on him. After entering appearance, the Plaintiff serves on the Defendant summons
for judgment within ten days from the date of service supported by an Affidavit; verifying the cause of
action, amount claimed and that in his belief there is no defence to the suit.

Rule 2(6) states that in case the Defendant does not apply for a leave to defend, (a) the Plaintiff shall
be entitled to judgment immediately or (b) the Court may direct the Defendant to give such security
as it may deem fit. Sub-clause 7 states that in case sufficient cause is shown, the delay in entering
an appearance or in applying for leave to defend the Suit may also be excused.

Rule 2(5) further states that the Defendant may within 10 days from service of such summons for
judgment by Affidavit or otherwise disclose such facts as may be deemed sufficient to entitle him to
defend, apply for leave to defend and it may be granted to him unconditionally or upon such terms
as may appear to the Court to be just. Further, the proviso indicates that leave to defend shall not be
refused unless the Court is satisfied that the facts disclosed do not indicate a substantial defence or
that the defence is frivolous or vexatious.
 Difference Between Summary Suit and Regular Suit

No Summary Suit Regular Suit (Regular Suit)

1) In Summary Suit the defendant is not entitled

as a matter of right to defend the suit.
Defendant has to obtain the leave of the Court
and if he does not apply for such leave within
the prescribed period or if Court refused such
leave, the plaintiff gets a decree in his favor.
In Regular (Regular Suit) Suit, a defendant is
entitled to defend the suit as a matter of right
and no leave to be obtained from Court to
defend.

2) Summary suit can be filed only for two

categories of Suits-

(1) Suit upon Bill of Exchange, Hundies,

Promissory Notes and Ordinary suit (Regular Suit) can be filed for any
purpose, It is not restricted to any particular
category of the suits

(2) To Recover debt, Liquidated demand in

money payable by the defendant on written
Contract, and on Guarantee.

3) In case of Summary Suits, After decree the

Court may, under special circumstances, set
aside the decree, and if necessary stay or set
aside execution, and may give leave to the
defendant to appear to the summons and to In ordinary suit (Regular Suit), the Decree
defend the suit, if it seems reasonable to the cannot be set aside by trial Court except on the
court so to do, and on such points as the Court grounds of review.
thinks fit

4) In Summary suit, the defendant must prove his In ordinary Suit (Regular Suit) Time Limit is
fact Within 10 Days 30 Days for filing a written Statement