Key points
- Summary suits lie on bills of exchange, promissory notes, cheques and written contracts for a liquidated sum, including invoices under a written agreement.
- The defendant must apply for leave to defend within 10 days of service of summons for judgment; without leave, the plaintiff gets a decree.
- Leave is refused if the defence is illusory or sham, and may be conditional on deposit where the defence is doubtful.
What qualifies
Order XXXVII applies to suits on negotiable instruments and to suits seeking only a debt or liquidated demand arising on a written contract, an enactment, or a guarantee where the principal claim is itself liquidated. Claims for unliquidated damages, or where the amount depends on evidence of quantum, are not summary suits. In Delhi, commercial claims above the Commercial Courts threshold are heard by the commercial division with the summary procedure available.
The two summonses
The plaintiff first serves the summons of the suit; the defendant must enter appearance within 10 days. The plaintiff then serves a summons for judgment; the defendant must apply for leave to defend within 10 days, on affidavit disclosing facts that show a substantial defence.
The test for leave
The Supreme Court's guidance in IDBI Trusteeship v. Hubtown (2017) sets the graded approach: unconditional leave where the defence is substantial; conditional leave with deposit where the defence is plausible but improbable; refusal where the defence is frivolous. A defendant who admits part of the claim must deposit that part.
Timelines
Where leave is refused, a decree can follow within months of filing. Where leave is granted, the suit proceeds as an ordinary suit, and the advantage lies mainly in the deposit the court may have ordered.
Frequently asked questions
Can I file a summary suit on unpaid invoices?
Yes, if the invoices arise from a written contract or purchase orders that fix the price, and the claim is for a fixed sum. Disputed quality claims by the buyer may support leave to defend.
Can interest be claimed in a summary suit?
Yes, contractual interest, or interest under the Interest Act where the contract is silent, can be included as part of the liquidated demand.
Related practice area: Debt Recovery
This article is for general information and does not constitute legal advice. Laws, rules and limitation periods change and depend on the facts; please take advice on your own situation before acting. Reading this article does not create a lawyer-client relationship with Akhtars Legalitarian.