Document Fragment View

Matching Fragments

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.
(iv) suit for recovery of receivables instituted by any assignee of a receivable."

31. In the facts of the case, clause (a) does not apply as the plaintiff does not seek to recover the amount covered by the instruments, enumerated therein. The plaintiff professedly claimed to recover the debt or liquidated demand in money. Undisputedly, there is no written contract. The endeavour of Mr.Choudhary was to persuade the Court to hold that since the suit is based on debt or Vishal Parekar, PS ...10 wp-16611-2024.doc liquidated demand in money, absence of written contract, did not matter. In contrast, it was the submission of Mrs. Singh that the suit rests on honoured cheque and, therefore, it is beyond the purview of sub rule (2) of Rule 1, Order 37 of the Code.

(1) All suits upon bills of exchange, hundies or promissory notes, and all 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 on a contract express or implied, or on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty, or on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only, or in suits in which the landlord seeks to recover possession of immovable property, with or without a claim for the rent or mesne profits against a tenant whose term has expired or has been duly determined by notice to quite, or as become liable to forfeiture for non-payment of rent or against persons claiming under such tenant may in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed, but the summons shall be in Form No. 4 in Appendix B or in such other form as may be from time to time prescribed."

C. By a further amendment dated 1 st November, 1966 by Bombay High Court, the provisions of Order XXXVII Rule 2 of the Code was Vishal Parekar, PS ...12 wp-16611-2024.doc substituted as under:-

"2. Institution of Summary suits upon bills of exchange, etc.--
(1) All suits upon bills of exchange, hundies or promissory notes, and all 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 on a written contract or 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 on a guarantee, where the claim against the principal is in respect of a debt or a liquidated demand only, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint with a specific averment therein that the suit is filed under this Order, and that no relief not falling within the ambit of this rule has been claimed, and with the inscription within brackets "(Under Order XXXVII of the Code of Civil Procedure, 1908)" just below the number of the suit in the title of the suit, but the summons shall be in Form No. 4, in Appendix or in such other form as may be from time to time prescribed.") C. The Code of Civil Procedure, 1908, subsequently came to be amended by CPC Amendment Act, 1976 :- The provisions of Order 37 Rule 1(2), as amended by CPC Amendment Act, 197,6 has been extracted above.

35. Thus, since 1966 amendment, the existence of a written contract for a recovery of a debt or liquidated demand in money is a Vishal Parekar, PS ...13 wp-16611-2024.doc pre-condition if the summary suit is to be instituted to recover a debt or liquidated demand in money arising out of a contract. The Full Bench in the case of Jyotsna Valia (supra) enunciated that after 1996 Bombay Amendment and 1976 Amendment to the Code, the summary suit can only be filed if there be a written contract. The observations in paragraph 9 are material and hence extracted below:-