How to file suit for recovery in India?

how-to-file-suit-for-recovery-in-india 

What is recovery or summary suit?

Summary suit or summary procedure is given in Order 37 of Code of Civil Procedure, 1908 (hereinafter referred as CPC, 1908) whose object is to summarize the procedure of suit in case the defendant is not having any defence.

Application and Scope

This order is applicable to

  1. All the suits upon bills of exchange, hundies, and promissory notes.
  2. The suits wherein the plaintiff seeks to recover a debt payable by the defendant, arising either on a written contract or on an enactment where the sum sought to be recovered is fixed or on a guarantee where the claim against the principal is in respect of a debt.

A suit can be instituted under this order in High Court, City Civil Court, Court of Small Causes or any other Court notified by the High Court.

Who is competent to invoke this Order?

For companies, partnership firm, proprietorship firm and traders etc., can file a suit for recovery of their unpaid bills/ Business due amount or payment where there are any written contract/agreement between the parties.

Is there any limitation period to file a recovery suit?

The limitation period for filing a civil recovery suit in India is 3 years. After that the claim is barred by time. It is imperative to decide which Court of law one should file their suit for recovery.

What is pecuniary jurisdiction?

In India, according to the Civil Procedure Jurisdiction, the pecuniary or monetary jurisdiction of the Courts depends on the state in which the cause of action arises. The pecuniary jurisdiction of the Court divides the Court on a vertical basis, which means that depending on the valuation of the suit filed, there are different levels of Courts with different monetary jurisdictions, and the suit will have to be instituted in the Court which has the required jurisdiction.  For example, the pecuniary jurisdiction of the Courts in Delhi are as follows:

  • Suits amounting to 2,0,000,000- lie before District Courts.
  • Suits over and above 2,0,000,000 lie before the High Court.

It is essential to remember that the amount of pecuniary jurisdiction is different for all High Courts in India. This limit is decided by respective High Court Rules and in many states the High Court has no pecuniary jurisdiction. All civil suits go before the District Courts, and only appeals lie before the High Court.

Institution of summary suits under Order 37 of CPC

  1. Presenting a plaint which shall contain a specific averment to the effect that the suit is filed under this Order, that no relief which does not fall within the ambit of this rule has been claimed in the plaint.
  2. The summons of the suit shall be in Form No. 4 in Appendix B or in such other Form as may, from time to time, be prescribed.
  3. The defendant shall not defend the suit referred to in sub rule (1) unless he enters an appearance and in default of his appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any sum, not exceeding the sum mentioned in the summons, together with interest at the rate specified, if any, up to the date of the decree and such sum for costs as may be determined by the High Court from time to time by rules made in that behalf and such decree may be executed forthwith.

Summary Procedure

COURT AND CLASSES OF SUITS TO WHICH THE ORDER IS TO APPLY-

  1. This order shall apply to the following courts, namely
  • High Courts, city civil Courts and courts of small cause.
  • Other Courts: provided that in respect of the courts referred to in clause (b), the high Court may, by notification in the official gazette, restrict the operation of this order only to such categories suits as it deems proper, and may also, from time to time, as the circumstances, of the case may require, by subsequent notification on the official gazette, further restrict, enlarge or vary, the categories of suits to be brought under the operation of this order as it deems proper.
  1. Subject to the provisions of Sub Rules (1), the order applies to the following classes of suits namely-
  • Suits upon bill of exchange, hundis and promissory notes:
  • Suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising-

(i) On a written contract, or

(ii) On an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of the debt other than a penalty: or

(iii) On a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.

If written Contract or Agreement is not there then a simple civil recovery suit will be filed on the basis of facts and circumstances of the case.

Leave to defend granted to defendants

The defendant may , at any time within 10 days from service of such summons for judgement, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the amount so admitted to be due is deposited by the defendant in court.

Jurisdiction to file a suit

District Court

The pecuniary limit of the District Court is decided by the High Court. In case of Delhi, the pecuniary limit of District Court was Rs.20 Lakh which after the amendment is increased to Rs.2 crore.

High Court

The original pecuniary jurisdiction of a High Court is for the suits wherein the value of the matter involved is more than 2 crore.

Objection to Pecuniary Jurisdiction

The pecuniary jurisdiction is determined by the value of the suit which the plaintiff determines and mentions in his plaint. In case of an objection regarding pecuniary jurisdiction of Court, the trial court will inquire into that and will pass an appropriate order.

Disclaimer – the above summary is based on the personal interpretation of the revised regulations, which may differ person to person. Hence, the readers are expected to take expert opinion before placing reliance on this article.

Comment

  1. Again you portray yourself as an expert but this article was written by a person who don’t know a bit about the procedures which clearly shows lack of knowledge on the subject.

    1. Dear Mr. Vansh Manchanda,

      I thank you for your feedback. I have tried to elaborate related regulation by mixing with the practices issues being faced in the related matter. I think this co-relation may change person to person. Nevertheless, I would happy to change if your goodself share your view on merit instead of just criticism.

      Thank you and would like to hear more from you.

  2. we have filed a case againt one of our debtors in district court, the transaction is now more then 3 years old. But due to the slow proceeding of the district court, we are fed up and have lost hopes.

    Please suggest if we can still file a case against the debtor who is a private limited company in NCLT?

Leave a Reply

Your email address will not be published. Required fields are marked *