Civil Procedure Code, 1908 — Order XXXVII, Rules 3(4) & (5) — Summary suits — Leave to defend — Necessity of —
High Court directed defendant to file a reply to summons for judgment without requiring an application for leave to defend under Order XXXVII Rule 3(5) CPC. Held, impermissible. In a summary suit, a defendant cannot file a defence/reply as of right; leave to defend must be sought within prescribed period or with condonation of delay. Allowing a reply/defence without leave effaces distinction between ordinary suits and summary suits, which is not permissible.
Commercial Courts Act, 2015 — S. 12A — Mediation — Effect of referral to mediation —
Referral of parties to mediation and its failure does not dispense with the statutory requirement under Order XXXVII CPC of applying for leave to defend.
Practice and Procedure — Procedural deviation — Effect of —
Permitting filing of a reply/defence without leave to defend is a procedural irregularity going to the root of summary suit jurisdiction. Such order liable to be set aside.
Held, impugned order of High Court set aside. However, defendant not precluded from pursuing remedies available under Order XXXVII CPC, including pending application for condonation of delay and leave to defend. Appeal allowed.
2025 INSC 1157
1
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2025
[@ SLP (C) NO. 1134 OF 2024]
EXECUTIVE TRADING COMPANY PRIVATE LIMITED. … APPELLANT(S)
VERSUS
GROW WELL MERCANTILE PRIVATE LIMITED … RESPONDENT(S)
J U D G M E N T
S.V.N. BHATTI, J.
1. Leave granted.
2. We have heard Advocates Mr. Debesh Panda and Mr. Sanampreet Singh
for the parties. The appeal is at the instance of the Plaintiff in Commercial
Summary Suit No. 19 of 2020 before the High Court of Judicature at Bombay
and challenges the order dated 05.12.2023. To make the narrative brief, the
order impugned is excerpted hereunder:
“1. Let the reply to the Summons for Judgment be filed
by 20th December, 2023 with a copy to the other side.
Rejoinder, if any, be filed by 9th January, 2024 with a
copy to the other side.
2. List on 9th January, 2024.”
3. The parties to the civil appeal had business transactions for reasonably
good time. The present Commercial Suit is filed to recover the alleged admitted
and confirmed total liability of Rs. 2,15,54,383.50/- together with interest at
24% per annum amounting to Rs. 2,38,50,845.00/-.
4. The suit was filed on 15.10.2019 under Order XXXVII of the Civil
Procedure Code, 1908 (‘the CPC’). Summons were issued on 15.01.2020,
2
along with the Plaint and Annexures, which have been stated as served on
the Defendants on 18.01.2020. On 28.01.2020, the Defendant entered
appearance in terms of sub-Rule (3) of Rule 3 of Order XXXVII of the CPC.
The Plaintiff filed Summons for Judgment No. 75 of 2021 in Commercial
Summary Suit No. 19 of 2020. The Plaintiff alleges that the Summons for
Judgment No. 75 of 2021 was served on the Defendant on 11.01.2022.
According to the plaintiff, the Defendant ought to have, if advised, filed for
leave to defend by disclosing the defence available against the claim in the
Summary Suit.
5. Admittedly, instead of filing an Application seeking leave to defend, the
Defendant filed an I.A. (L) No. 7771 of 2022 praying for the dismissal of the
suit for non-compliance with Section 12A of the Commercial Courts Act. On
08.04.2022, the application was allowed, the parties were referred to
mediation, and the Summary Suit was kept in abeyance. The Mediation
Report dated 09.02.2023 was filed by the Mediator. The I.A. No. 1353 of 2023
was filed to allow the Plaintiff to amend the plaint and summons for judgment
as per the Schedule annexed, and the same was allowed by order dated
29.08.2023. The operative portion reads as follows:
“6. Having heard the learned counsel and having
perused the papers and proceedings, the draft
amendment as requested by way of praecipe is allowed.
Let the amendment to the plane as well as the summons
for judgment be carried out within a period of two weeks.
7. Let the amended plane as well as the summons for
judgment be served upon the other side within a period
of one week thereafter.”
3
The defendant filed an Application for condoning the delay in applying for
leave to defend on 23.01.2024. The said application is still pending before the
High Court.
6. By referring to the above chronological undisputed events, Advocate for
Plaintiff contends that the step ordered by the High Court, allowing reply to
the Summons for Judgment, is procedurally incorrect and unsustainable. The
requirement in terms of sub-Rule (5) of Rule 3 of Order XXXVII of the CPC is
to file an application seeking leave to file the defence. In the application filed
praying for leave, the court decides whether a case for granting leave to defend
is made out or not, considering the nature of the recovery. At the present
stage, we are not determining whether a case for granting leave is made out
or not, but the precise question is whether the court could have permitted
filing a reply/defence without even praying for leave, setting out the available
defence, etc.
7. 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.
4
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.
8. Advocate Sanampreet Singh, appearing for the Defendant, contends
that the Application seeking condonation of delay is pending. Even if the
application is under a wrong provision, the same is not a ground to assume
that the Plaintiff is entitled to a decree. Further, the delay stated by the
Plaintiff in filing the application is not correct, as it is always available to the
Defendant to convince the court either to grant leave or condone the delay.
He argues that the delay in filing the application, as stated by the Plaintiff, is
factually incorrect.
9. After perusing the record and also the step taken by the High Court in
bypassing the requirement of sub-Rules (4) and (5) of Rule 3 of Order XXXVII
of the CPC; without much deliberation, we are of the view that the order
5
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 procedural deviation goes to the root of the matter. Hence, the order
impugned is set aside. The setting aside of the order impugned shall 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.
10. The appeal stands allowed by leaving the option to the parties to pursue
remedies in accordance with the steps envisaged in Rule 3 of Order XXXVII of
the CPC. There shall be no order as to costs.
………..……….…………………J.
[AHSANUDDIN AMANULLAH]
………..…………………………J.
[S.V.N. BHATTI]
New Delhi;
September 25, 2025.