summary suit
Mayuresh Gujar
(Querist) 05 December 2010
This query is : Resolved
sir
i want to know about summary suit procedure for recovery of money cheque given by Ltd.company to Ltd company?
is demand notice necessary for this suit? if yes then what is the time limit ?
and i want to tell u one thing also that " criminal complaint under 138 " is rejected on the ground that, in the board resulotion, there is no power given to MD to execute gp in favour of any officer of company. In the judgement of said criminal case, hon.Judge also said that the accused issued cheque in favour of complaint and there is legal debt.
so, i want to know that in the demand notice ,if necessary, can i mention facts of that criminal case?
Devajyoti Barman
(Expert) 05 December 2010
No demand letter is necessary as such notice is not a condition precedent for filing a summary suit or a suit for recovery of money.
adv. rajeev ( rajoo )
(Expert) 06 December 2010
If want to file a civil suit to recover the money to claim the cost of the suit notice is necessary, otherwise not necessary. And if want to initiate criminal proceedings against the co., u/s 138 of NI Act notice is mandatory.
N.K.Assumi
(Expert) 06 December 2010
Once there is a default of contractual agreement no notice is required. agreed with Barman.
R.Ramachandran
(Expert) 06 December 2010
Dear Mayuresh,
For filing a case under Sec. 138 N.I.Act, there is no special authority required for the M.D. M.D. has all the powers to act. The rejection of Sec. 138 N.I. case on the ground stated by you is not correct.
As regards Order 37 CPC cases:
Only the following classes of suits can be filed under Order 37 CPC:-
(a)suits upon bills of exchange, hundis and promissory notes;
(b)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 a 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.
The case can be filed before High Courts, City Civil Courts and Courts of Small Causes; and other Courts.
In the suit, the plaint should contain,-
(a)specific averment to the effect that the suit is filed under this Order;
(b)that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint; and
(c)the following inscription immediately below the number of the suit in the title of the suit, namely:-
(Under Order XXXVII of the CPC, 1908)
Upon institution of the Summary suit, Summons shall be sent by the Court to the defendant.
The defendant has to enter an appearance either in person or by pleader at any time within ten days of service of Summons.
The defendant may apply for leave to defend such suit.
The Court may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.
Leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just.
The 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.
Sri Vijayan.A
(Expert) 06 December 2010
I fully agree with Mr.R.R.
The important fact in summary suit is the defendent has to get Leave to defend.
Some times he may have to deposit 1/2 of claimed amount,if the court requires so.
Arun Kumar Bhagat
(Expert) 12 December 2010
Easiest way of recovery is Liquidation proceeding in High Court.
