There are multiple provisions of Law to support people who fail to recover their money, such remedy is provided under the Code of Civil Procedure, 1908 allowing the creditor to file a suit for recovering against the defaulter.
The purpose of this article is to provide legal knowledge and know-how for a civil suit to recover money.
Suit for Money Recovery
A suit or Civil Suit is a lawful remedy for filing a complaint against the defaulted to seek legal redress in a Court of Justice through proper judicial action. It is generally filed to resolve the dispute between the parties, though the term suit is nowhere mentioned in the code. It has a wider interpretation in terms of its aims and purposes.
A civil Suit is established under ordinance or Order IV of the Civil Procedure Code, 1908 and is established by submitting a paint in the Court, escorted by aiding or essential documents. It can be filed within 3 years from the date the dispute has arisen and cannot be further condoned.
Ordinary Suit and its Procedure-
Section 26 Order IV Rule 1 of the Civil Procedure Code deals with the filing of ordinary suits. It is a Suit where a defendant is allowed to defend the suit without any leave or applying for a leave which is to be received from the court for defence.[1]
For a defendant, the time barrier for filing the written statement is 30 days and the ruling cannot be set aside. The ambit of ordinary suits is wider as it can be filed for any purpose and is not just restricted to money recovery suits.
PROCEDURE
- The Court takes the Complaint into consideration and after satisfaction, issues the summons to appear.
- The first summons is issued by the Court as soon as the care is filed.
- Within a prescribed time of 30 to 90 days, the defendant is bound to produce his writings along with the necessary documents.
- Then the plaintiff files his written statements in reply to the statements of the defendant.
- Succeeding the admission or the denial of the documents filed by the two parties comes the stage where the framing of the questions is carried out by the Court.
- Pieces of evidence on affidavits are then presented by the plaintiff as well as the defendant.
- The cross-examination and summoning of witnesses also occur at this stage.
Summary Suit and its Procedure
The procedure of Summary Suit is provided under Order XXXVII of the Code of Civil Procedure, 1908. In a summary suit, the defendant does not have the right to defend the action or the suit and is much more difficult to defend, unlike an ordinary suit. [2]
Summary suit summarises the proceeding and acts as a quick remedy for the plaintiff in the absence of the defendant’s defence and subsequent the judgement is passed. The main objective of a summary suit is profitably attaining justice.
These suits can be instituted on certain specified documents such as Bills of Exchange, Hundies, Banknotes, Promissory Notes and suits which the plaintiff seeks only to collect a deficit or liquidated claim in money payable by the defendant with no interest from a written contract, an enactment or on a guarantee.[3]
PROCEDURE
The procedure of Summary suits includes –
- The plaintiff submits a Plaint under Order 37 of the Civil Procedure Code in the Court.
- The court considering the request and its admissibility issues the summons to appear which must be served upon the defendant/s. The summons to appear just be filed within 10 days of the date of service.
- The defendant must file its leave to defend after appearing in court. It does not have the right to contest until it establishes that there is a variable issue and that the debt is not admitted liability.
- Leave to defend and favourable arrange in favour of the defendant is passed only after hearing. The defendant is entitled to record the timeline endorsed.
- The trial commences hereinafter the ultimate contentions the judgement is passed.
- The suit is ruled in favour of the plaintiff if the defendant fails to attend within 10 days after service of the summons, or if the defendant is unable to lay out a case for deserving a leave to defend even after appearing.[4]
Difference between Ordinary and Summary suit
The Plaintiff in a Summary Suit nearly quickly seeks the help that he implores for if there are no grounds upon which a conceivable contention can be built. In an ordinary suit, there’s no weight as such on the defendant and as long as there’s no ground to develop an argument upon an empty case indeed at that point through waiting with the due handle of the courts a matter can be extended for a noteworthy sum of time.
The scope of the summary suit is narrow as compared to the scope of an ordinary suit. It is constrained to cash claims as it was related to debatable instruments, loans, written contracts and other previously mentioned cases. An ordinary suit can be filed for any civil wrong.[5]
The principle of Res judicata is not applicable to summary suits, i.e summary suits can be filed on the matter straightforwardly and significantly in issue in a past ordinary suit.
In summary suits, a decision or judgement in favour of the plaintiff is quickly issued if the defendant fails to attend, whereas, in ordinary suits, numerous summons are normally served before an ex-parte order is passed.[6]
Another notable difference, according to the Delhi High Court, is that Order 37 is a sufficient code in itself, it does not require any help of Section 5 of the Limitation Act of 1963 for delay forgiveness. While in an ordinary suit, requires the assistance of Section 5 of the aforementioned Act unless and until explicitly or implicitly banished.[7]
Case Law
In Neebha Kapoor v. Jayantilal Khandwala[8] the Supreme Court said the fundamental open approach behind order 37 is quick to transfer of suits of Commercial nature. It gives for such transfer as speedily as conceivable by endorsing time outline in this manner. Where on the other hand, the pertinence of order 37 of the Code itself is in issue, as appears to be the main basis for the decreed judgement, we believe that leave should be granted.
If the leave to defend is granted, the summary suit will proceed in the same manner as a regular suit. Ordinary suit processes allow for a broader scope for setting aside an ex-parte decree, whereas Summary suit allows for a very limited scope.[9]
Conclusion
Civil proceedings, particularly recovery suits, are not always portrayed as a long, drawn-out fight that should be avoided. If one is aware of the crucial breadth of Order 37 of the Code of Civil Procedure, 1908, the general assumption that bringing a recovery suit against a person can drag on for years at a tremendous pace is dispelled.
Article – Ordinary Money Recovery Suit and Summary Suit
Edited By: Namira Siraj
College Name: Aligarh Muslim University, Uttar Pradesh (5th Semester)
[1] PATHLEGAL, https://www.pathlegal.in/ (last visited Aug. 5, 2021).
[2] Carl Patel, Points of difference between summary suit and ordinary suit on cheques, POSTS (Aug. 8, 2021, 9:15 PM), https://www.linkedin.com/pulse.
[3] Nawlendu, All you need to know about Summary Suit, BLOGS (Aug. 5, 2021, 9:20 PM), https://www.blog.ipleaders.in/.
[4] India Law Office LLP, https://www.indialawoffices.com (last visited Aug. 5, 2021).
[5] Adit Sharma, What are Summary Suits and How Its Different From Ordinary Suits?, BLOGS (Aug. 5, 2021, 9:24 PM), https://talbroslegal.com/blogs/.
[6] Sms1412, Summary Suits Explained, BLOGS (Aug. 5, 2021, 9:31 PM), https://www.lawctopus.com/.
[7] supra note 5.
[8] AIR 2008 SC 1117.
[9] Satya Prasanth, Difference Between Summary Suit And Ordinary Suit, LAW ARTICLES (Aug. 5, 2021, 9:37 PM), https://www.legalserviceindia.com/.