Order XXXVII CPC | In Summary Suit, Defendant Can't File Reply/Defence Without Court's Leave : Supreme Court

The Supreme Court recently clarified that no defence would be allowed to come on record in a summary suit under Order XXXVII CPC without the leave of the court.

A bench of Justices Ahsanuddin Amanullah and SVN Bhatti set aside the Bombay High Court's ruling, where it allowed the defendant to file a reply to the plaintiff's summons for judgment, bypassing the mandatory requirement of obtaining the leave of the court for filing a defence.

“we are of the view that the order impugned needs to be interfered with in as much as if a reply or defence is allowed to come on record in a summary suit without the Leave of the Court then the distinction sought to be maintained between a Suit normally instituted and Summary Suit under Order XXXVII of the CPC stands effaced.”, the court said.

The Court stressed that the very objective of Order XXXVII CPC to would stand defeated if the defendant submits defence without the leave of the Court.

The dispute stemmed from a commercial summary suit filed in 2020 by the Petitioner-Executive Trading Company before the Bombay High Court, seeking recovery of over ₹2.15 crore with 24% interest from the Respondent-Grow Well Mercantile.

Instead of applying for leave to defend, the defendant initially moved for dismissal of the suit, citing Section 12A of the Commercial Courts Act, 2015 (mandatory pre-institution mediation). Mediation was attempted but failed. Later, the plaintiff amended its pleadings, and in December 2023, the High Court directed the defendant to file a reply as if it were an ordinary civil suit.

Challenging this order, the plaintiff approached the Supreme Court, arguing that such a direction undermined the special procedure under Order XXXVII CPC.

Setting aside the impugned order, the judgment authored by Justice Bhatti emphasized that a defendant cannot file a defence without seeking a leave of the Court in summary suits. The Court said that if the defendant fails to seek leave of the Court, and applies for the leave belatedly, then on showing sufficient cause, the Court may condone the delay and grant leave to file a defene.

In this regard, the Court laid down the sequence of steps for filing a summary suit under Order XXXVII: -

“To appreciate the procedural objection pointed out by the Plaintiff, the sequence of steps under Order XXXVII Rule 3 sub-Rules (1) to (7) of the CPC is set out as follows:

7.1 On filing the Summary Suit, the plaintiff must serve the defendant with the plaint and annexures, together with the summons.

7.2 The defendant has ten days to enter an appearance, in person or through a pleader, and provide a service address. On the same day, the defendant must notify the plaintiff or its pleader of its appearance.

7.3 The plaintiff then serves a summons for judgment on the defendant in the court-prescribed format, supported by an affidavit verifying the cause of action, the amount claimed, and the belief that the defendant has no defence.

7.4 Thereafter, the defendant has ten days to apply for leave to defend by filing an affidavit disclosing a genuine and substantial defence. The court may grant leave to defend unconditionally or on such terms that may appear to be just.

7.5 The court shall not refuse leave unless the defence is frivolous or vexatious. Further, if the defendant admits to owing part of the amount, it must deposit that amount in court to get the leave to defend.

7.6 If the defendant does not apply for leave or its application seeking leave is refused, the plaintiff is entitled to immediate judgment. If the court grants leave to defend but the defendant fails to comply with any condition or other directions, the plaintiff is also entitled to immediate judgment.

7.7 The court has the discretion to condone any delay in entering an appearance or applying for leave to defend if the defendant shows sufficient cause.”

Accordingly, the appeal was allowed, and it was clarified that the aforesaid decision “should not be understood as foreclosing the options available to the Defendant in the Judgment Summons already issued, or the observations made in the present order shall not prejudice the case of either party.”

Cause Title: EXECUTIVE TRADING COMPANY PRIVATE LIMITED. VERSUS GROW WELL MERCANTILE PRIVATE LIMITED

Citation : 2025 LiveLaw (SC) 969

Click here to read/download the judgment

Appearance:

Mr. Debesh Panda for the petitioner

Mr. Sanampreet Singh for the respondent