Order XXXVII of the Code of Civil Procedure, 1908 provides a summary procedure for a defined class of money claims. Its logic is simple: where the claim rests on a written instrument or contract for a debt or liquidated demand, the defendant is not permitted to contest as of right, but must first persuade the court to grant leave to defend. This article explains which claims qualify, how the procedure runs, and how the route compares with an ordinary suit and with cheque-bounce prosecution.
Which claims qualify
Order 37 Rule 1(2) confines the summary procedure to two classes. First, suits upon bills of exchange, hundis and promissory notes — a dishonoured cheque, being a bill of exchange under the Negotiable Instruments Act, 1881, falls in this class. Second, suits in which the plaintiff seeks only 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 in respect of a debt or liquidated demand.
The common thread is certainty of amount. A liquidated demand is one ascertained or ascertainable by calculation from the instrument or contract itself. Claims for unliquidated damages — for breach requiring assessment, for quality shortfalls, for loss of profit — fall outside the Order and must proceed as ordinary suits. The plaint must state specifically that the suit is filed under Order XXXVII and that no relief outside its ambit is claimed.
The procedure, step by step
Step 1 — Institution and summons of the suit
The plaint is filed with the required averments, and summons of the suit in the prescribed form is served on the defendant with a copy of the plaint and annexures.
Step 2 — Entry of appearance within ten days
The defendant must enter an appearance, in person or by pleader, within ten days of service, and give an address for service. Default of appearance results in the plaint allegations being deemed admitted and the plaintiff becoming entitled to a decree.
Step 3 — Summons for judgment
Where appearance is entered, the plaintiff serves a summons for judgment supported by an affidavit verifying the cause of action, the amount claimed and the belief that there is no defence to the suit.
Step 4 — Application for leave to defend
Within ten days of service of the summons for judgment, the defendant may apply for leave to defend, disclosing by affidavit the facts said to constitute a defence.
Step 5 — Leave granted, conditioned or refused
Leave may be unconditional, conditional on deposit or security, or refused. If refused, or if conditions are not complied with, the plaintiff is entitled to judgment forthwith; if granted, the suit proceeds to trial on the defence permitted.
The general standard embedded in Rule 3(5) is that leave turns on the substance of the defence disclosed: a defence raising genuine triable issues attracts leave, a plausible but doubtful defence may attract conditions, and a defence that is illusory or raised only to gain time attracts refusal or stringent terms. Rule 3(7) separately empowers the court, at the hearing of the summons for judgment, to order the defendant to pay into court a sum admitted to be due. Rule 4 permits the court, under special circumstances, to set aside a decree passed under the Order and grant leave to appear and defend.
Summary suit, ordinary suit and Section 138 compared
| Feature | Summary suit (Order 37 CPC) | Ordinary civil suit | Section 138 NI Act complaint |
|---|---|---|---|
| Nature | Civil; money decree | Civil; any relief | Criminal prosecution for cheque dishonour |
| Claims covered | Negotiable instruments; debt or liquidated demand on written contract, enactment or guarantee | All claims, including unliquidated damages | Dishonour of a cheque drawn for discharge of a legally enforceable debt or liability |
| Defence as of right | No — leave to defend required | Yes — written statement filed as of course | Accused defends the prosecution; statutory presumptions under Sections 118 and 139 operate |
| Outcome | Decree executable under the CPC | Decree after full trial | Fine or imprisonment; compensation may be ordered |
| Preconditions | Qualifying instrument or contract; specific averments in the plaint | Cause of action; court fee; limitation | Statutory demand notice within the timelines fixed by the proviso to Section 138 |
The comparison underlines a point often missed: Section 138 proceedings are criminal in character. They punish the dishonour; they are not a substitute for a civil decree, and a complainant may still need the civil route to recover the full contractual dues with interest. Conversely, a summary suit yields a decree but no penal consequence. Where a dishonoured cheque evidences a written debt, the two remedies are frequently pursued in parallel.
Where a summary suit is filed in Delhi
Territorial and pecuniary jurisdiction follow the ordinary rules of the Code — Sections 15 to 20 CPC — so the suit is filed where the defendant resides or works for gain, or where the cause of action arises, subject to any binding forum clause. In Delhi, money suits within the district judiciary's pecuniary limits go before the district courts; suits valued above rupees two crore fall within the ordinary original civil jurisdiction of the Delhi High Court. Where the claim is also a commercial dispute of Specified Value under the Commercial Courts Act, 2015, it is instituted on the commercial track — before the Commercial Court at the district level or the Commercial Division of the High Court — and the summary-suit averments and that Act's procedural discipline then operate together.
For defendants, the ten-day windows are unforgiving: one runs from service of the summons of the suit, the other from service of the summons for judgment. Both dates should be diarised immediately on receipt, because the consequence of default is a decree.
Closing observations
Order 37 rewards claims built on clean paper — a signed contract, an acknowledged ledger, a negotiable instrument — and penalises delay on both sides of the record. A plaintiff with a qualifying claim obtains a shorter road to decree; a defendant with a genuine defence will ordinarily obtain leave to raise it. Independent legal advice on specific facts is always advisable.
Frequently Asked Questions
Can a summary suit be filed on unpaid invoices alone?
Only if the claim fits Order 37 Rule 1(2): a suit on a bill of exchange, hundi or promissory note, or a suit to recover a debt or liquidated demand in money arising on a written contract, an enactment, or a guarantee where the claim is for a debt or liquidated demand. Invoices backed by a written contract or acknowledged in writing may qualify; a claim requiring assessment of unliquidated damages does not.
What happens if the defendant does nothing after service?
The defendant must enter an appearance within ten days of service of the summons of the suit. In default of appearance, the allegations in the plaint are deemed admitted and the plaintiff becomes entitled to a decree for the sum claimed with interest and costs as provided in Order 37 Rule 2(6). A similar consequence follows where, after the summons for judgment, no leave to defend is sought or leave is refused.
On what basis is leave to defend granted or refused?
The scheme of Order 37 Rule 3(5) is that the defendant discloses by affidavit facts which the court considers sufficient to entitle it to defend. Depending on the substance of the defence disclosed, leave may be granted unconditionally, granted on conditions such as deposit or security, or refused where the defence raises no genuine triable issue. The proviso bars refusal where the defendant shows the facts sufficient to entitle it to defend.
Is a summary suit better than a cheque bounce complaint?
They serve different ends and are not mutually exclusive. A complaint under Section 138 of the Negotiable Instruments Act, 1881 is a criminal proceeding aimed at penal consequences and compensation; a summary suit is a civil action that yields an executable money decree. Where a dishonoured cheque evidences a debt, parties often pursue both, since neither remedy bars the other. The choice on given facts merits specific advice.