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Pragandh Ketkale (Sr. Associate)     16 August 2017

Appeal or leave defend on order passed in summ. suit.

Defendant company has taken certified copy on 24th July 2017 after oral intimation received from plaintiff-  of the decree passed in summary suit under order XXXVII to pay claim amount, interest on principal amount from the date of filing the suit and cost. 

Please find attached order copy.

Question.

Whether the defendant can file an application (Notice of Motion) for leave to defend now in the same court after the decree has passed??? Will it be admissible???

What grounds appeal can be filed ??? Valid defences if any in this case???

Whether the Hon'ble court where appeal shall lie will ask for the deposit of 50% amount of decree before allowing the appeal???

Previously the defendant company has not appeared or filed any documents. The Defendend company is in financial crises and will be able to pay within next 1 year.

 



 5 Replies

Siddharth Srivastava (Advocate)     16 August 2017

Order 37 CPC belongs to summary suit where the claim is related to fixed amount based on hundi, promissory note etc. and when this suit is filed then on service defendant has to file its memo of appearance thereafter palintiff serve the defenadant summon for judgement in response to which defendant has to file leave to defend in the same court stating the grounds and reason on the basis of which defendant seek to contest the case and if the same court allows leave to defend subject to any condition, then defendant file its WS and the case proceeds accordingly thereafter as normal suit. If the leave to defence is not allowed by court the the same can be challenged by way of appeal in higher court. For rest of your query the complete case file is required to be examined. As such there is no universal defence applicable in every case. In case of need you may consult with details. Sidharth 9811776422 

1 Like

Advocate Bhartesh goyal (advocate)     16 August 2017

You can either file petition for setting aside  ex-parte decree under oorder 37 rule 4 of cpc showing sufficient reason for not appearing before court after having received the summons under o 37 r 2 &3 of cpc or file appeal against the impugned judgment and decree..If your petition u/o 37 r 4 cpc [for setting aside decree ]is allowed by court then you will be given opportunity to file "Leave to defend.In case you opt to file appeal ,Appellate  court may impose condition to deposite some amount in court while admitting the appeal.

Advocate Bhartesh goyal (advocate)     16 August 2017

You can either file petition for setting aside  ex-parte decree under oorder 37 rule 4 of cpc showing sufficient reason for not appearing before court after having received the summons under o 37 r 2 &3 of cpc or file appeal against the impugned judgment and decree..If your petition u/o 37 r 4 cpc [for setting aside decree ]is allowed by court then you will be given opportunity to file "Leave to defend.In case you opt to file appeal ,Appellate  court may impose condition to deposite some amount in court while admitting the appeal.

Advocate Bhartesh goyal (advocate)     16 August 2017

You can either file petition for setting aside  ex-parte decree under oorder 37 rule 4 of cpc showing sufficient reason for not appearing before court after having received the summons under o 37 r 2 &3 of cpc or file appeal against the impugned judgment and decree..If your petition u/o 37 r 4 cpc [for setting aside decree ]is allowed by court then you will be given opportunity to file "Leave to defend.In case you opt to file appeal ,Appellate  court may impose condition to deposite some amount in court while admitting the appeal.

GAJESH GUPTA (Proprietor)     19 July 2018

I have filed a Summary suit for recovery of dues and I have got a conditional order saying the defendants to deposit the money within 60 days which they have not done and the summary suit will convert to short cause case. The defendants have filed an appeal in high court against this order.  I shall be highly obliged if you could reply to my following queries and suggest further steps for early recovery of my dues. It has been a month since the defendants have filed the appeal, however they have not intimated us nor have served us a copy of appeal. The have failed to submit a stay in the lower court from the high court. The lower court has granted them 2 weeks times to submit the stay.

1. Can I challenge this order by an appeal in high Court. Should I appeal or file a CRA (Civil Revision Application) u/s 115 of CPC. And what are the chances of getting a favourable order or should I file a Writ Petition. Which is the best solution for my matter at this juncture. 

2. What is the time duration once Appeal/CRA/Writ is filed.

3 Do I need to file a appeal separately or I can submit my appeal while replying to their appeal filed.

 

 


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