SUMMARY SUITS (ORDER XXXVII)

PRANAB MAHAY

00216503809 B.A.LLB (H)

TABLE OF CONTENTS INTRODUCTION SUMMARY PROCEDURE KINDS OF SUITS THE CONSTITUTIONALITY AND SCOPE AMENDMENT OF PLAINT INSTITUTION OF SUMMARY SUITS PROCEDURE FOR THE APPEARANCE OF DEFENDANT POWER TO SET ASIDE DECREE 3 4 5 5 6 7 9 12

POWER TO ORDER BILL, ETC., TO BE DEPOSITED WITH OFFICER OF COURT RECOVERY OF COST OF NOTING NON-ACCEPTANCE OF DISHONOURED BILL OR NOTE. PROCEDURE IN SUITS. DIFFERENCE BETWEEN SUMMARY SUIT AND ORDINARY SUIT CONCLUSION BIBLIOGRAPHY 13 13 14 12 12 12

INTRODUCTION: Order 37 of the Civil Procedure Code provides for the summary procedure. The provision has been made keeping in view certain suits, in order to prevent the unreasonable obstruction laid down by the defendant, who has no defence. Unlike other civil suits, the trial in summary suits begins after the court grants leave to the defendant to contest the suit. The court dealing with summary suits can pass the judgment in the favour of the plaintiff if (1) the defendant has not applied for leave to defend or if such application has been made but refused, or (2) the defendant who is permitted to defend fails to comply with the conditions on which the leave to defend was granted1. No longer, it is mandatory to supply the copy of the documents. However, it is mandatory to supply annexure and therefore, even if it is assumed that the documents were not supplied, it would not render the service of summons under O 37 nugatory2.

1 2

Indian Bank v. Maharashtra State Co-op Marketing Federation (1998) 5 SCC 69. SV Electrical Limited v. Sylvania Laxman Ltd. AIR 2000 Del 156.

SUMMARY PROCEDURE: ORDER XXXVII of the Code reads as follows: 1. Courts and classes of suits to which the Order is to apply (1) This Order shall apply to the following Court, namely:(a) High Courts, City Civil Courts and Courts of Small Causes; and (b) 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 of suits as it deems proper, and may also, from time to time, as the circumstances of the case may require, by subsequent notification in 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. (2) Subject to the provisions of sub-rule (1) the Order applies to the following classes of suits, namely:(a) suits upon bills of exchange, hundies 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 scope of the rule has been amended by the amendment of 1976. Adopting the Bombay Amendment, summary procedure has been made applicable to all courts. The Code of Civil Procedure, 1908 provides for a summary procedure in respect of certain suits. Provisions relating to summary procedure are found in O. 37, Rules 1 to 7

of the Code. A Summary suit is intended to facilitate the speedy disposal of cases. The object that underlies the summary procedure is to guard against delaying tactics that are indulged in by a defendant, who may have no genuine defence. In short, the essence of summary suits is that the defendant is not, as in an ordinary suit, automatically endowed with the right to defend a suit. The right to exercise his defence will be granted to the defendant only if the court is convinced as to the authenticity of his claims. The summary procedure is a powerful weapon in the hands of a court to discourage frivolous defences. The important feature of "summary suit", is that, here the Defendant is not allowed to defend the suit, unless he takes the permission from court. Defendant is allowed to defend himself only if according to the affidavit filed by him, it is must for the plaintiff to prove charges against him.

If by affidavit by Defendant, it appears that he has no defense, then court will decline him the permission and pass necessary orders in favor of plaintiff. KINDS OF SUITS: 1. Suits upon bills of Exchanges, hundies or promissory notes; 2. Any suit filed by the plaintiff for recovery of a debt / money payable by the defendant according to a written contract, or 3. In case of an enactment wherein the amount to be recovered is a fixed amount of money, or a debt other than a penalty, or A guarantee, where the claim against the principal is in respect of a debt or for money only. The object behind provision of summary procedure was to ensure a speedy trial for recovery of money in cases where the defendant has no defence and thus any unreasonable delay sought to be caused is eliminated. THE CONSTITUTIONALITY AND SCOPE: The provisions of this Order, prescribing for the special trail of certain classes of suits, and by certain courts, are not repugnant to Article 14 of the Constitution, as they are

based on reasonable classification3. Rule 8 made under the Bombay Rents Hotels and Lodging Hall Rates (Control) Act 1947 provides that ejectment suits may be instituted in accordance with O 37 is not ultra vires4. Promissory Notes, Bills of Exchange and Hundis.

The Order applies on the promissory notes, bills of exchange and hundis. The Negotiable Instruments Act under ss 4 and 5 define a promissory note and a bill of exchange. However, neither the Negotiable Instruments Act nor the Code defines the term Hundi.

Account Payee Cheques.

The rule is applicable to all suits on bills, hundis and promissory notes, whether they are negotiable or not. Thus, a suit based on a crossed cheque bearing an endorsement a/c payee only can be filed under the summary procedure5.

Debt or Liquidated Demand.

A debt is a present obligation to pay an unascertainable sum of money whether the amount is payable in presenta or in futuro. The former is a debt owing and the latter is a debt due. However, a sum payable upon a contingency does not become a debt until the said contingency has happened6. Liquidate demand means an amount susceptible of being made certain by mathematical calculation from factors in possession or knowledge of the party to be charged. A claim of damages in percentage is a liquidated amount within the meaning of O 377.

AMENDMENT OF PLAINT. In a suit under O 37 on promissory note, amendment was sought to introduce additional facts and documents, to take the defendants liable as guarantors. It was held that on the particular facts of the case amendment (though belated) should be granted8.
3 4

Cf Khemchand v. Hari AIR 1979 Del 7. Ramkarandas v. Bhagwaandas AIR 1965 SC 1144. 5 Tailors Priya v. Gulabchand AIR 1963 Cal 36. 6 Kesoram Industries v. Gheesi AIR 1999 Raj 69. 7 Rajinder Kumar Khanna v. Oriental Insurance Co. AIR 1990 Del 278. 8 Dena Bank v. Gautam Ratilal Shah AIR 1988 Bom 1.

INSTITUTION OF SUMMARY SUITS. Order 37 rule 2 deals with the institution of summary suits. 2. Institution of summary suits (1) A suit, to which this Order applies, may if the plaintiff desires to proceed hereunder, be instituted by presenting a plaint which shall contain,(a) 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; (c) the following inscription, immediately below the number of the suit in the title of the suit, namely:"(Under Order XXXVII of the Code of Civil Procedure, 1907)." (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 entering an appearance the allegations in the plaint shall be deemed to be admitted and the plaintiff shall 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. This rule provides that after the summons of the suit has been issued to the defendant, the defendant must appear and the plaintiff will serve a summons for judgment on the defendant. The defendant is not entitled to defend a summary suit unless he enters an appearance. In default of this, the plaintiff will be entitled to a decree which will be executed forthwith.

Failure to Enter Appearance:

As provided by sub-rule(3), in a summary suit, if the defendant fails to enter appearance, the court can pass a decree on the basis that allegations in the plaint are deemed to have been admitted9.

Form of summons in a Summary Suit:

The summons in a summary suit requires the defendant to obtain leave from the court within ten days from the service thereof to appear and defend the suit and within such time to cause an appearance to be entered on his behalf.

Limitation for Application for Leave to Defend:

The period for an application for leave to appear and defend is ten days from the date when the summons is served. The court has no power to extend the time10, unless the court has, by a rule framed in that behalf, made s 5 of the Limitation Act applicable to such applications as done by the High Court of Bombay. It has been held in some decisions of Madras High Court that a court could entertain, for sufficient cause, an application presented beyond ten days, as a power to excuse delay should be implied from the power to set aside an ex parte decree for sufficient cause, under rule 411. But most of the authorities hold the view that there is no power in the court to excuse delay, as section 5 of the Limitation Act is inapplicable12.

Obtaining Leave is Must:

Before the amendment of 1976, this rule provided that a defendant who has failed to obtain a leave to defend cannot be allowed to appear while the hearing is proceeding. But the scheme after the amendment is different. The defendant must enter an appearance and thereafter he has to seek leave to defend.

Vijaya Home Loans Ltd. V. Crown Traders Ltd., AIR 1998 Del 183. Mahmudar v. Saratchandra (1900) 5 CWN 259. 11 Murahari Rao v. Bapayya AIR 1949 Mad 742. 12 Kamalammu v. Venkata Sastri (1951) 1 MLJ 676, AIR 1951 Mad 895.
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PROCEDURE FOR THE APPEARANCE OF DEFENDANT: 3. Procedure for the appearance of defendant (1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an address for service of notices on him. (2) Unless otherwise order, all summonses, notices and other judicial processes required to be served on the defendant, shall deemed to have been duly served on him if they are left at the address given by him for such service. (3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiffs pleader, or, if the plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by pre-said letter directed to the address of the plaintiffs pleader or of the plaintiff, as the case may be. (4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B for such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit. (5) The defendant may, at any time within ten days from service of such summons for judgment, 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. (6) At the hearing of such summons for judgment,(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to

judgment forthwith; or (b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security with the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or judge, the plaintiff shall be entitled to judgment forthwith. (7) The Court or Judge may, for sufficient cause shown by the defendant, execute the delay of the defendant in entering an appearance or in applying for leave to defend the suit. This rule prescribes the mode of service of summons and leave to defend. The defendant must apply for leave to defend within ten days from the date of service of summons upon him and such leave will be granted only if the affidavit filed by the defendant discloses such facts as may be deemed sufficient to entitle him to defend. Such leave may grant to him unconditionally or upon such terms as may appear to the court or judge to be just 13. Leave to defend, however, should not be refused unless the court is satisfied that the facts disclosed by the defendant do not indicate that he has substantial defence to rise or that the defence intended to be put by him is frivolous or vexatious.

Sub-rule(5):

As a rule, leave to defend must be given unconditionally if the defendant shows a prima facie case or raises a triable issue. Leave should be made conditional if the court doubts the bona fides of defendant or thinks that the defence is put in only in order to gain time14. The Madras High Court has held that if the defendant sets up a defence which if proved would entitle him to succeed, the court has no discretion but must grant leave unconditionally15. In the Santosh Kumar v. Mool Singh16, the Supreme Court approved the decision of Sundaram v. Vallimal17 held that once it was found that there was a triable issue, leave should be given

13 14

Mechalec Engineers v. Basic Equipment Corpn., (1976) 4 SCC 687. Santosh v. Moolsingh AIR 1958 SC 321. 15 Sunderam v. Valli Ammal (1935) ILR 58 Mad 116, 152 IC 687. 16 AIR 1958 SC 321.

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Discretion:

After the amendment of 1976, the discretion to give leave to defend is delineated by the provisios. Order 37, rule 3(5) provides that leave to defend shall not be refused unless the court is satisfied that there is absence of substantial defence, or the defence is frivolous or vexatious. Following principles are to be followed, while touching upon the issue of granting leave: 1. If the defendant satisfies the court that he has a good defence to the claim on its merits, the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. 2. If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence (although not a positively good defence), the plaintiff is not entitled to sign judgment and defendant is entitled to unconditional leave to defend. 3. If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend, but, in such a case, the court may, in its discretion, impose conditions as to the time or mode of trial, but not conditions as to payment into court or furnishing security. 4. If the defendant has no defence or the defence set up is illusory or shown to be practically moonshine, then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

Sub-rule (7)

Under rule 3(7), time cannot be given until the defendant enters appearance. For leave to defend in a summary suit for recovery of money, the defendants must show that they have substantial defence and triable issues to raise, and that their defence is not frivolous. Only copy of plaint and annexure thereto has to be furnished to defendants. Furnishing of copies of document which are the basis of the suit is not necessary. Defendant would not be entitled to leave to defend on the ground of non-furnishing of copies.

17

(1935) ILR 58 Mad 116, 152 IC 687.

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The expression within ten days may mean that the period may be less than ten days or, at the most, on the tenth day. But it cannot go beyond that.

POWER TO SET ASIDE DECREE. 4. Power to set aside decree After decree for the Court may, under special circumstances set aside the decree, and if necessary stay or set aside execution, and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the Court so to do, and on such terms as the Court thinks fit. Under this rule, the court can set aside the decree and stay the execution and may grant leave to the defendant to appear and defend the suit. POWER TO ORDER BILL, ETC., TO BE DEPOSITED WITH OFFICER OF COURT. In any proceeding under this Order the Court may order the bill, hundi or note on which the suit is founded to be forthwith deposited with an officer of the Court, and may further order that all proceedings shall be stayed until the plaintiff gives security for the costs thereof18. RECOVERY OF COST OF NOTING NON-ACCEPTANCE OF DISHONOURED BILL OR NOTE. The holder of every dishonoured bill of exchange or promissory note shall have the same remedies for the recovery of the expenses incurred in noting the same for non-acceptance or non-payment otherwise, by reason of such dishonour, as he has under this Order for the recovery of the amount of such bill or note19. PROCEDURE IN SUITS. Save as provided by this Order, the procedure in suits hereunder shall be the same as the procedure in suits instituted in the ordinary manner20.

18 19

Rule 5 Rule 6. 20 Rule 7.

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DIFFERENCE BETWEEN SUMMARY SUIT AND ORDINARY SUIT: 1. In the ordinary suit the defendant is entitled to defend the suit as of right. But in a summary suit he is not entitled for the same except with the leave of the court. 2. In an ordinary suit the decree cannot be set aside by the trial court except in review. But in the summary suit the trial court may set it aside under special circumstances.

CONCLUSION: Summary suit of recovery is a quick procedure, under Order XXXVII of the Code of Civil Procedure for recovery of money when certain conditions are satisfied- that is written agreement. The difference in procedure is that in ordinary suit, the defendant has a right to contest whereas in summary procedure the defendant can enter into his defence only after getting leave of the Court. The constitutional validity of the summary suits have been upheld.

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BIBLIOGRAPHY: Anil Nandwani, Law of Civil Procedure in India, 1st ed.2006, Allahabad Law Agency, Faridabad. C.K Takwani, Civil Procedure, 5th ed.2003, Eastern Book Company, Lucknow. M.P Jain, The Code of Civil Procedure, 1st ed. 2004, Wadhwa and Company, Nagpur. Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company, Nagpur.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. OF 2013

(Under O.XXXVII, of the Code of Civil Procedure 1908)

ABC Pvt. Ltd. (Through its authorized representative) (Plaintiff) V/S BBB Buildcon Pvt. Ltd (Defendant)

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THE PLAINTIFF ABOVENAMED STATES AS UNDER:

1.

I state that the Plaintiff is a company which is in the business of Information and technology in the name and style of ABC Pvt. Ltd. I state that Defendant is doing the business of Real estate. The Plaintiff and the Defendant have the address as mentioned in the cause title.

2.

The Plaintiff on or about _____ day of __________2012, the Plaintiff through its representative Mr. DEF Kumar had visited Noida Gurgaon, to see the plot of lands for development as I. T. Parks. I state that on visiting few sites the representative had applied for plots in I. T. Parks at Greater Noida to government of Uttar Pradesh for 20 acres land.

3.

The Defendant No. 1 through its representative Mr. AAA i.e. Defendant No. 2 who is having its office NCR represented to the Plaintiff that the Defendant No. 2 has very good network and contact in the government department of Uttar Pradesh. The Defendant No. 2 also represented to the Plaintiff that his influence shall aid and assist the Plaintiff to quick and timely processing of the formalities with the government department to get the said plot of land allotted to the Plaintiff.

4.

The Plaintiff on believing the representations made by the Defendant No. 2 to be true, on 6th February 2012 an Memorandum of Understanding (MOU) was entered

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into between the Plaintiff through its Managing Director Mr. ADCD and Defendant No. 2 Mr. DIDK, Chief Managing Director of the Accused No. 1 under the terms and conditions as agreed under the said MOU. Hereto Annexed and marked as Exhibit A is a copy of Memorandum of Understanding dated 6th February 2012 entered into Plaintiff and Defendants.

5.

The Plaintiff states that as per the understanding in the MOU dated 6th February 2012 Defendant No. 2 shall take 50 lakhs as security money from Plaintiff which is refundable and if allotment is not done within 30 days then said amount was to be refunded back to the Plaintiff. The Plaintiff state that accordingly through Real time Settlement (RTGS) funds transfer application form, the Plaintiff issued cheque No. 264000 dated 7th February 2012 drawn on HDFC Bank to Defendant No. 1 for Rs. 50,00,000/-(Rupees Fifty Lakhs Only). Hereto annexed and marked as Exhibit B is the said receipt of RTGS for the same.

6.

The Plaintiff states that thereafter the Defendant No. 2 again demanded a sum of Rs. 1,00,00,000/- (Rupees One Crore Only) stating that there in increase in the value of Plot of land which the Plaintiff wanted to purchase for the development as I. T. Parks. The Plaintiff states that the on demand the Plaintiff paid the said amount by cheque no. 792342 and cleared on 7th March 2012 drawn on UCO bank Worli branch to the Defendant No. 2 Mr. DEF BBB, CMD of Defendant No. 1 BBB Buildcon Pvt. Ltd. Hereto annexed and marked as Exhibit C is cheque no. 792342 and cleared on 7th March 2012 drawn on UCO bank Worli branch

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7.

The Plaintiff states that the above money paid through RTGS and cheque are duly credited to the Bank account of the Defendant No.1. The Plaintiff further states that the said amounts has been duly paid upon the demand and representation made by the Defendant No. 2 that he would aid and assist the Plaintiff for the purchase of the 20 acres plot of land at Noida Gurgoan which the Plaintiff believed to be true. Hereto annexed and marked as Exhibit D is account statement of the Plaintiffs Bank showing that the said amount has been duly credited into the account of the Defendant No. 1.

8.

The Plaintiff states that thereafter the Plaintiff contacted Defendant No. 2 to enquire whether the said 20 acres of plot of land has been allotted to Plaintiff or not. Upon inquiry the Plaintiff was informed by the Defendant No. 2 that no land was allotted to the Plaintiff. The Plaintiff states that as no land was allotted the Plaintiff demanded its money of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only) to be refunded so paid to the Defendants.

9.

The Plaintiff states that on repeated oral requests and reminders Defendant No. 1 had issued two cheques viz. 863824 and 863801 dated 8/3/2008 and 15/3/2008 drawn on Centurion Bank of Punjab 5,6,7, Paras Down Town Centre DLF Golf Course Road, Sec-53, DLF Phase V Gurgoan-122 022 for Rs. 1,00,00,000/- (Rupees One Crore Only)and Rs. 50,00,000/-(Rupees Fifty Lakhs Only)respectively. Hereto annexed and marked as Exhibit E and Exhibit F are the two viz. 863824 and 863801 dated 8/3/2008 and 15/3/2008 drawn on Centurion Bank of Punjab 5,6,7, Paras Down

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Town Centre DLF Golf Course Road, Sec-53, DLF Phase V Gurgoan-122 022 for Rs. 1,00,00,000/- (Rupees One Crore Only)and 50,00,000/-(Rupees Fifty Lakhs Only)respectively. The Plaintiff states that the issuance of the cheque confirms the fact that the Defendants accept the liability Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only) which they have towards the Plaintiff.

10. The Plaintiff states that the said two cheques were deposited with M. D. C. C. bank 207, D. N. Road, Mumbai -1 head office on 2nd July 2008 for Rs. 1,00,00,000/(Rupees One Crore Only)and on 4th July 2012 for Rs. 50,00,000/-(Rupees Fifty Lakhs Only)respectively. I state that the said two cheques were dishonoured for the reasons mentioned in the memo issued by Centurion Bank of Punjab. The Plaintiff states that on or about ______ date spoke to Defendant No. 2 about the refund of the monies however Defendant No. 2 gave evasive answers and deliberately and willfully tried to stop taking calls. The Plaintiff again tried to contact the contact the Defendant No. 2 and on being contacted he promised that he shall refund the said amount due and payable to Plaintiff. The Defendant has till today not paid the said amount.

11. The Plaintiff states that the defendant in fact has confirmed the said amount from time to time and admitted the liability, however refusing to pay the said amount without any justifiable or lawful reason. The Plaintiff states that the Defendant however failed and neglected to make the payment of the said amount of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only). The Plaintiff though discharged

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his obligation under the said MOU and parted with the amount for purchase of the plot of 20 acres land; the Defendant failed and neglected in their duty to get the said plot allotted in the name of the Plaintiff and as also to refund the said admitted balance amount of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only)so given for the purchase of the plot of land.

12. The Plaintiff states that in the circumstances the Plaintiff was left with no alternative but to give legal notice and accordingly on 29th May 2013 the Plaintiff sent the legal notice and recorded the aforesaid facts and called the defendant to make payment of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only)with 21% interest from _____ to _____ of payment by the Plaintiff to Defendant. The Plaintiff by the said Advocate's notice recorded the aforesaid fact that if within 7 days the Defendant if failed to make payment of the said admitted amount of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only) the plaintiff will adopt the appropriate proceedings at the cost of the Defendants. The Plaintiff states that the Defendant duly received the said legal notice however did not make payment of the said amount. The Plaintiff states that in the circumstances the Defendant is truly and justly indebted to the plaintiff for the sum of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only). The Plaintiff states that the Defendants though liable to pay the said amount in law are avoiding making payment of the said amount without there being justifiable reason. Hereto annexed and marked Exhibit G is the copy of the Advocates Notice dated 29th May 2013. The Plaintiff states that the Defendant neither made the payment nor replied to the said Advocate Notice.

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13. The Plaintiff states that the defendant is liable to pay the sum of Rs. 1,50,00,000/(Rupees One crore Fifty Lakhs only) with interest thereon at 21% from _____ to_____. The Plaintiff states that the defendant admitted their liability and there is no defence whatsoever or any justifiable dispute. The Plaintiff states that the amount of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only)is due and payable by the Defendant to the Plaintiff and the Defendant has admitted the liability.

14. The Plaintiff states that the Plaintiff has not claimed any reliefs beyond the scope of order 37 Rule 1 of CPC. The Plaintiff states that in the facts and circumstances mentioned hereinabove the suit is maintainable as summary suit under Order 37 Rule 1 of CPC.

15. The Plaintiff states that in the circumstances the Plaintiff is entitled to the decree of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only) with interest thereon @21 % p.a. from _______ to ____________ against the defendant and in favour of the plaintiff. The plaintiff is also entitled to the cost.

16. The Plaintiff states that the defendant has their office in Gurgoan. The Plaintiff is carrying on business in Bombay, the contract was entered into at Bombay. The Plaintiff states that the whole cause of action has arisen in Bombay and this Hon'ble Court has jurisdiction to try and entertain the above suit.

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17. The plaintiff has not filed any other suit either in this Hon'ble court or any other court or in the Apex court concerning the subject matter of the case.

18. The plaintiff submits that no part of the claim in the suit is barred by law of limitation.

19. The Plaintiff states that the Plaintiff values the suit at Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only) and pays the court fees accordingly.

20. The Plaintiff will rely upon the list of documents a list whereof is annexed.

The Plaintiff therefore prays: a) By a decree and judgment in plaintiff's favour and against the defendant for Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only) with further interest thereon @21% p.a. of Rs. 1,50,00,000/- (Rupees One crore Fifty Lakhs only) from the date of suit till decree and thereafter till realization. b) For cost; c) For such other and further reliefs which this Hon'ble court may deem fit and proper PLAINT DRAW BY ME, (XYZ Law Associates) Rahul V. Sanyal Authorized representative of PLAINTIFF

ADVOCATE FOR THE PLAINTIFF

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Verification I, Rahul V. Sanyal, aged about 45 years the Authorized representative of plaintiff abovenamed do hereby Solemnly declare that what is stated in the foregoing paragraphs No.__ to __ is true to my own knowledge and what is stated in the remaining paragraphs No.__ to __ is based on information and belief and I believe the same to be true. SOLEMNLY DECLARED AT BOMBAY THIS DAY OF November 2013

BEFORE ME (XYZ Law Associates) ADVOCATE FOR THE PLAINTIFF

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. OF 2013

(Under O.XXXVII, of the Code of Civil Procedure 1908)

ABC Pvt. Ltd. (Plaintiff) V/s. BBB Buildcon Pvt. Ltd. (Defendant) PLAINT DATED THIS DAY OF NOVEMBER, 2013

XYZ Law Associates ADVOCATE FOR THE PLAINTIFF 306, VARDHAMAN CHAMBERS 17-G, CAWASJI PATEL STREET FORT, MUMBAI-400 001. I am not the member of the welfare scheme therefore Rs.2/- stamp affixed.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. OF 2013

(Under O.XXXVII, of the Code of Civil Procedure 1908)

ABC Pvt. Ltd. Through its Authorized representative Mr. Rahul V. Sanyal (Plaintiff) V/s. BBB Buildcon Pvt. Ltd., (Defendant)

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To, The Prothonotory & Senior Master, High Court, Bombay. Madam, I, the Plaintiff do hereby appoint XYZ Law Associates, Advocate, High Court, Bombay to act, appear and plead for me in the above matter. IN WITNESS WHEREOF I, hereby set and subscribe my hand to this writing at Bombay. Dated this day of November, 2013

ACCEPTED:

(XYZ Law Associates) Advocate, High Court, Bombay (Plaintiff)

Office Address: 306, Vardhaman Chambers, 17-G, Cawasji Patel Street, Fort, Mumbai 400 001. Resi. Address : C-11, Tilak Complex, Shanti Ashram, Eksr Road, Borivli (W), Mumbai 400 103. Regn. No.813

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. OF 2013

(Under O.XXXVII, of the Code of Civil Procedure 1908)

ABC Pvt. Ltd. (Plaintiff) V/s. BBB Buildcon Pvt. Ltd. & Anr. (Defendant)

THE LIST OF DOCUMENTS BY WHICH THE PLAINTIFF WILL RELY UPON:

1. 2.

All the Exhibits annexed in the Plaint Other relevant documents.

(XYZ Law Associates) Advocate for the Plaintiff

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMARY SUIT NO. OF 2013

(Under O.XXXVII, of the Code of Civil Procedure 1908)

ABC Pvt. Ltd. (Plaintiff) V/s. BBB Buildcon Pvt. Ltd. & Anr. (Defendant)

Affidavit

I, Rahul V. Sanyal, aged about 45 years the Authorized representative of the Plaintiff above named having address at address A/5, Borkar Compound, Ganesh Nagar, W.E. Highway, Borivli (E), Mumbai 400 066

1.

That I am well conversant with the facts and circumstances of the case and are

competent to depose for the same. I say that what is stated in the plaint is true to my own knowledge, belief and information. I say that for the sake of brevity, whatever is stated in the plaint may be treated as if reiterated herein in extenso.

2.

I say that if the reliefs are not granted in favour of the Plaintiff, the Plaintiff will

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suffer grave harm, loss and prejudice. Whereas no such harm, loss or prejudice will be caused to the Defendants if the reliefs as prayed for in the present suit are granted in favour of the Plaintiff. The balance of convenience is in favour the Plaintiff.

3. I, therefore pray that the reliefs asked for in the Plaint be granted with costs.

SOLEMNLY AFFIRMED AT BOMBAY THIS __ DAY OF November, 2013

BEFORE ME, Advocate for the Plaintiff

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