ORDER 37 OF CIVIL PROCEDURE CODE
1) INTRODUCTION
Recovery of suits refers to those suits which are related to Monetary Transactions between the parties. Henceforth it is also known as the “Summary Suits”.
The suits are filed between the parties, where the plaintiff seeks to recover the amount of debt payable by the defendant, arising due to a written contract between them, or where the sum sought to be recovered is fixed, or against the guaranteed amount to be paid by the principal debtor.
Summary suits can be filed in cases of certain specified documents such as promissory notes, Hundies, and Bills of exchange.
2) PARTIES WHO MAY APPLY FOR RECOVERY OF SUIT UNDER Order 37 OF CPC
If there are any written contracts/agreements between the parties involved such as companies, partnership firms, proprietorship firms, and traders, etc. Can file a suit against the party who’s at the defaulter position, due to the non-payment of the agreed sum of money. The aggrieved party has the right to bring the defaulter party in the court of laws. After the suit has been instituted by the plaintiff in the court the debtors have very limited scope to escape from the payment of the debts to the parties.
3) COURTS AND CLASSES OF SUITS TO WHICH Or.37 OF CPC IS APPLICABLE
SUBJECTS OF PROVISION:
Suits upon a bill of exchange, promissory notes, hundreds, etc.
Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest.
Note: If written contract or agreement is not there then, in that case, simple recovery of the suit will be a file on the basis of facts and circumstances of the case.
JURISDICTION OF COURT:
a. High Courts
b. City Civil Courts
c. Courts of Small Cause
4) PROCEDURE FOR APPLYING THE SUMMARY SUIT UNDER Or.37 OF CPC
INSTITUTION OF SUIT
ISSUE OF SUMMONS TO DEFENDANTS
INSPECTION OF DOCUMENTS REFERRED TO IN THE PLAINT
WRITTEN STATEMENT
AMENDMENTS OF PLEADING
I. INSTITUTION OF SUIT
A suit is filed by presenting it before the court of law or to such officer that the court has appointed or authorizes to perform in accordance with the plaintiff or his advocate.
WHEN CAN THE PLAINT BE PRESENTED?
The plaint can be presented to the court during the working day & office hours of the court. However, a judge may accept plaint at his residence after office hours as well.
WHO CAN PRESENT THE PLAINT?
A plant can be presented by the person authorized or his pleader or may be presented personally by the plaintiff.
ANNEXING OF DOCUMENT WITH THE PLAINT.
The plaintiff is required to register all the list of all the documents on which his plaint relies. Code of Civil procedure, 1908 further provides that the plaintiff has to deliver the documents and a copy of documents along with the plaint.
ESSENTIALS OF PLAINT:
The plaint shall be presented in duplicate.
Name of the court.
Name description and place of residence of the plaintiff and defendant.
Facts constituting the cause of action and when it arose.
Facts showing that the court has jurisdiction in the case.
Statement of the value of the subject matter of the suit.
Reliefs claimed by the plaintiff.
Amount of claim in case of recovery suit.
Where the plaintiff has allowed a set-off or relinquished a portion of his claim.
When the subject matter of the suit is an immovable property, a description of the property.
Where the suit is time-barred, the ground upon which exemption from the law of limitation is claimed.
II. ISSUE OF SUMMONS TO THE DEFENDANTS
After the plaint is presented and admitted by the court, the next step to be taken is, issuing a summons to the defendant by the court. The purpose of issuing the summon to the defendant is to appear and answer the claim. In accordance with the sec 27 of CPC, a defendant is given a period of 30 days from the date of the filing of the suit to answer the claim.
SUMMONS refers to a notice that suit or legal proceedings have been filed and a person and to the person to whom summon is issued has to be presented on the given date in the court of laws.
SUBSTITUTED MODE FOR SERVICE OF SUMMONS implies that when summon cannot be served in an ordinary manner then alternative mode for serving to summon is used. It refers to the cases wherein the defendant or his authorized agent refuses to acknowledge the service of summons or where the defendant is able to successfully escape from the service of summons.
In such cases, alternative modes for service of summoning provided under Code of Civil Procedure,1908 provides affixing a copy of summoning in some conspicuous place in the courthouse, and also on some part of a house in which the defendant is known to have last resided or carried on business or personally worked for gain.
III. INSPECTION OF DOCUMENTS REFERRED TO IN THE PLAINT
Pursuant to serving of summon on the defendant, the defendant has to refer to a copy of the plaint and if any documents are referred to in the plaint, of which the defendant has not got the copies, a notice shall be given to the plaintiff or his authorized agent or pleader to produce the documents for inspection.
IV. WRITTEN STATEMENT
A written statement is referred to as the defendant’s reply in response to the plaintiff’s plant. Order 8 Rule 1 of the code of civil procedure, 1908 demands that the defendant should file a written statement within 30 days from the date of issuance of summons by a court on him.
However, the court may extend the given time period, if required according to the circumstances, which should not go beyond 90 days from the date of issuance of summons.
The written statement comprises of the defendant’s reply in response to the plaintiff’s plant, the defendant can also bring in his claim for set-off and counterclaim. If the defendant in his reply relies on a certain document and have the possession over the same, the defendant shall file those documents along with the written statement. Every allegation of fact in the plaint, if not denied specifically then it shall be considered as admitted by the defendant, in the court of laws.
V. AMENDMENTS OF PLEADING
Amendment of pleading can be claimed either by the plaintiffs or by the defendant; both the parties are authorized to claim for. An application for the same can be made at any stage of proceedings in the court of laws.
An application for amendment of pleading will not be entertained once the trial has been started unless the court is of the opinion that in spite of due diligence, a party could not have raised the matter before the commencement of the trial. An amendment to pleadings shall not alter or substitute a new cause of action that was raised or defense taken.
The limited-time period for filing a civil recovery suit in India is for 3 years, after that the claim will be barred by time. It is an important factor to be decided that which court of law one should file their suit for recovery. In accordance with the civil procedure jurisdiction, the pecuniary or monetary jurisdiction of the courts depends on the state in which the cause of action takes place. Suits are instituted depending on their valuation. There are different levels of the court dealing with the different monetary jurisdiction, and the suits are required to be instituted in the court which has the required jurisdiction to deliver the judgment.
a. suits amounting to Rs 1/- to Rs 20,00,000/- fall under district court.
b. suits amounting over & above Rs 20,00,000/- fall under the high court.
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