Order 37 reverses the usual position in civil litigation. In an ordinary suit the defendant files a written statement and the case runs its course. In a summary suit, the defendant has to persuade the court to let them defend at all.
When it is available
Order 37 Rule 1 applies to suits upon:
- Bills of exchange, hundis and promissory notes
- Suits where the plaintiff seeks to recover a debt or liquidated demand in money, with or without interest, arising on a written contract, on an enactment where the sum sought is a fixed sum of money or a debt other than a penalty, or on a guarantee where the claim against the principal is for a debt or liquidated demand
It is not available for unliquidated damages, or where the claim needs evidence to establish the amount.
How it runs
- The plaint is filed with a specific averment that the suit is under Order 37 and that no relief outside its scope is claimed.
- Summons is served. The defendant must enter appearance within 10 days. If they do not, the allegations are deemed admitted and the plaintiff is entitled to a decree.
- The plaintiff then serves a summons for judgment.
- The defendant must apply for leave to defend within 10 days, supported by an affidavit disclosing the facts of the defence.
Following IDBI Trusteeship Services v. Hubtown (2016): if the defence raises a substantial and genuine triable issue, leave is granted unconditionally. If it is plausible but improbable, leave may be granted on condition of depositing the amount claimed or part of it. If the defence is frivolous or vexatious, or the defendant effectively admits the claim, leave is refused and the plaintiff gets a decree. That conditional deposit is what makes this procedure powerful.
What the court does with an application for leave to defend
- A genuine triable issue is raised, so leave is granted unconditionally and the suit proceeds as an ordinary suit.
- The defence is plausible but improbable, so leave is granted conditionally, commonly on depositing the claimed sum or furnishing security.
- The defence is illusory, sham, or raised only to delay, so leave is refused and the plaintiff is entitled to judgment.
- The defendant does not enter appearance at all, so the plaint's allegations are taken as admitted and the plaintiff may have judgment.
Why it matters commercially
A defendant who is simply delaying has to put money into court to keep fighting. That changes the negotiation entirely, and a large share of these suits settle at the leave-to-defend stage.
Separately from the conditional leave described above, the second proviso to Rule 3(5) contains a hard rule. Where the defendant admits that part of the amount claimed is due, leave to defend shall not be granted unless that admitted amount is deposited in court. This is not a matter of the judge's discretion, and it is the most useful provision in the Order. A defendant who concedes even part of the claim in his affidavit has to put that money in before he can fight about the rest, which is why the affidavit seeking leave is drafted so carefully on the other side.
Which courts, and the drafting formalities
Order 37 applies to High Courts, City Civil Courts and Courts of Small Causes, and to such other courts as the High Court notifies. The Bengaluru City Civil Court is a City Civil Court, so the procedure is available there as of right rather than by special notification.
The formalities are strict, and are the commonest reason a summary suit is converted into an ordinary one at the threshold. The plaint must aver specifically that the suit is filed under this Order, state that no relief outside its scope is claimed, and be inscribed at its head "(Under Order XXXVII of the Code of Civil Procedure, 1908)". The summons for judgment must be supported by an affidavit verifying the cause of action and be returnable not less than ten days from service.
Two safety valves are worth knowing on both sides of the record. Under Rule 3(7) the court may excuse the delay of a defendant in entering appearance or in applying for leave, on sufficient cause, so a missed deadline is serious but not always fatal. And under Rule 4, after a decree has been passed, the court may in special circumstances set the decree aside and stay or set aside execution. Neither is a substitute for meeting the dates.
The commercial alternative, which is wider
If the claim is a commercial dispute within the Commercial Courts Act, 2015 and meets the specified value, there is a second and in some ways better route. The Act inserts a summary judgment procedure for commercial suits, under which the court may decide a claim without recording oral evidence where the other side has no real prospect of succeeding and there is no other compelling reason for a trial. Unlike Order 37 it is not confined to debts and liquidated demands, so it reaches claims for damages that a summary suit cannot touch, and either party may apply. The trade-off is that a commercial suit which does not seek urgent interim relief must first go through mandatory pre-institution mediation. Weigh the two before choosing.
- The claim is a debt or liquidated demand in money, not damages to be assessed
- It arises on a written contract, a bill of exchange, a hundi, a promissory note, an enactment, or a guarantee for a debt
- The original instrument or agreement is available to produce
- The plaint carries the specific averment that the suit is filed under Order XXXVII and that no relief outside the Order is claimed
- The claim is within limitation
- The summons is in the prescribed form, since a defective summons costs the plaintiff the procedural advantage
The practical requirement
Your claim must be on paper. A signed agreement, an acknowledged invoice, a promissory note, a guarantee, a confirmed statement of account. If the arrangement was oral, Order 37 is not open to you and an ordinary suit is the route. Our guide to the money recovery suit sets out what that involves.
Note also what the summary procedure does not save you: the court fee is the ordinary ad valorem fee on the amount claimed, so what you gain is time rather than money. And the decree is only the halfway point. A judgment debtor who was delaying before will usually delay again, which is why the work described in our note on execution of a decree should be planned while the suit is still on, not after it is won.