Order XXXVII CPC | Supreme Court Says Defendant Cannot File Reply in Summary Suit Without Court’s Leave, Quashes Bombay HC Order
Kiran Raj
The Supreme Court Division Bench of Justice Ahsanuddin Amanullah and Justice S.V.N. Bhatti held that no defence may be brought on record in a summary suit under Order XXXVII of the Civil Procedure Code without the leave of the court. The Bench set aside a Bombay High Court order that had allowed the defendant, Grow Well Mercantile Pvt. Ltd., to file a reply to the summons for judgment issued by the plaintiff, Executive Trading Company Pvt. Ltd., without first obtaining such leave. The Court directed that the dispute over recovery of the claimed dues must proceed strictly in line with the special procedure prescribed under Order XXXVII.
The plaintiff instituted a commercial summary suit on 15 October 2019 under Order XXXVII of the Civil Procedure Code to recover an alleged admitted liability of ₹2,15,54,383.50, along with interest at 24% per annum amounting to ₹2,38,50,845.
Summons were issued on 15 January 2020 and served on the defendant on 18 January 2020. The defendant entered appearance on 28 January 2020 as required under Order XXXVII Rule 3(3) CPC. The plaintiff thereafter filed Summons for Judgment No. 75 of 2021, which was served on the defendant on 11 January 2022. According to the plaintiff, the defendant ought to have applied for leave to defend at that stage but instead filed an application under Section 12A of the Commercial Courts Act seeking dismissal of the suit.
On 8 April 2022, the High Court referred the parties to mediation and kept the summary suit in abeyance. A mediation report was filed on 9 February 2023. Subsequently, the plaintiff sought and was permitted by order dated 29 August 2023 to amend the plaint and summons for judgment. The amended documents were directed to be served on the defendant.
The defendant filed an application on 23 January 2024 seeking condonation of delay in applying for leave to defend. The High Court, by order dated 5 December 2023, permitted the defendant to file a reply to the summons for judgment, which was challenged by the plaintiff before the Supreme Court.
The Bench, after reviewing the record, stated that the question before it was whether the High Court could have “permitted filing a reply/defence without even praying for leave, setting out the available defence, etc.”
The Court referred to the steps under Order XXXVII Rule 3 and noted: “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 recorded that the procedural deviation “goes to the root of the matter” and therefore “the order impugned needs to be interfered with.”
The Bench further observed that it was not determining whether a case for granting leave to defend had been made out but only addressing the procedural question of whether a reply could be allowed without leave.
The Supreme Court recorded: “The order impugned needs to be interfered with… 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.”
“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.”
Advocates Representing the Parties
For the Petitioners: Mr. Debesh Panda, Advocate
For the Respondents: Mr. Sanampreet Singh, Advocate
Case Title: Executive Trading Company Pvt. Ltd. vs. Grow Well Mercantile Pvt. Ltd.
Neutral Citation: 2025 INSC 1157
Case Number: Civil Appeal arising from SLP (C) No. 1134 of 2024
Bench: Justice Ahsanuddin Amanullah, Justice S.V.N. Bhatti
