Introduction:
Order 37 of the Civil Procedure Code, 1908 (CPC), provides special adjudication procedure for certain classes of suits, known as Summary Suits. It restricts the Defendant’s right to defend in suits. However, Leave to Defend in summary suits protects the Defendant’s right with certain conditions. The Judiciary has also gradually delineated principles for granting leave.
Leave to Defend Meaning
Leave to Defend simply means a formal request of the Defendant before the Court to contest the Plaintiff’s claim. In a regular civil suit, the Defendant has a statutory right to defend himself by filing a written statement against the Plaintiff’s claim. However, in summary suit, the Court permits the Defendant to defend his case. The Court does not allow the Defendant to defend himself, unless he submits a request to contest the suit. The Defendant needs to convince the Court that he has a defence.
Procedure and Time Limit:
Rule 3, Order 37 elaborates the procedure for leave to defend. It states that initially, the Defendant must enter appearance before the Court within ten days of the summons of the suit. Thereafter, the Plaintiff serves on the Defendant a summons for judgment. At this point, the Defendant can apply for leave to defend through affidavit or otherwise within 10 days from that served summons. A Leave to Defend should disclose such defence which entitles the Defendant to defend. The Court can grant the Leave to Defend unconditionally or upon such terms as the Court finds just. If the Defendant admits the Plaintiff’s claimed amount, then the leave to defend would be granted on depositing it in Court.
When is Leave to Defend Granted?
Over the passage of time, the Hon’ble Supreme Court has shaped the principles for grant of leave to defend under Rule 3, Order 37. The principles are reiterated and modulated in the landmark judgment IDBI Trusteeship Services Ltd. v. Hubtown Ltd. (2017/1/SCC/568). It states that if the Defendant satisfies the court that the defence is:
– Substantial Defence: It means a defence is likely to succeed. Then Defendant is entitled to unconditional leave.
– Triable issues: It means defence is fair or reasonable, although not a positively good defence. Then Defendant is ordinarily entitled to unconditional leave to defend.
– Not Genuineness/In Doubt: It is when the defendant’s good faith, or the genuineness of the triable issue, is in doubt. The trial Judge may impose, on leave, conditions both as to time or mode of trial, as well as payment into court or furnishing security.
– Plausible: It means the defence is plausible but improbable. As such a defence does not raise triable issues, conditions will be imposed on leave, as to deposit or security or both, with such interest as the court feels the justice of the case requires.
Therefore, the defence must be either substantial or involve triable issues for unconditional leave to defend.
What Happens if Leave is Not Obtained?
The Court will refuse leave to defend in the absence of above-mentioned defences, or if the defence is frivolous. Thereafter, the defendant has no right to defend his case or contest the Plaintiff’s claim. The suit proceeds directly for judgment, subject to the provisions of Order 37, and the plaintiff becomes entitled to judgment thereafter.
Conclusion:
Audi Alteram Partem is a principle of natural justice, and leave to defend ensures it in summary suits. The objective, whereas, of summary suits is to provide expeditious relief in commercial causes. The principles propounded for granting leave to defend balance the procedural objective of summary suits and natural justice.
Written by:
Sonali Ray
