LEGAL DRAFTING

Suit for Recovery of Debt

SUBMITTED TO: SUBMITTED BY:

MR. SANJEEV SHARMA SHAGUN

SEMESTER 8

ROLL NO.: 205/16

SUBJECT: DRAFTING,
PLEADING AND CONVEYANCE

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 ACKNOWLEDGEMENT

Any work requires the effort of many people and this is no different. First of all, I would like
to express my heartiest thanks to the Director of University Institute of Legal Studies, Prof.
(Dr.) Rattan Singh for giving me an opportunity to study in such a great institution. Then I
thank my teacher MR. SANJEEV SHARMA for firstly making me understand the contents
of my topic and then giving me a wonderful opportunity to present this topic in form of an
assignment. Her support and teaching helped me a lot to complete this assignment.

I would also like to thank my friends who were always available to me for help and also
helped me collect data for my project through various sources.

Regardless of anything, I wish to express my gratitude to those who may have contributed to
this assignment, even though anonymously.

SHAGUN

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 SUMMARY SUITS

Summary suit or summary procedure is given in Order XXXVII of Code of Civil Procedure,
1908 whose object is to summarise the procedure of suit in case the defendant is not having
any defence.

This order is applicable to:

1. All the suits upon bills of exchange, hundis, and promissory notes.
2. The suits wherein the plaintiff seeks to recover a debt payable by the defendant, arising
either on a written contract or on an enactment where the sum sought to be recovered is
fixed or on a guarantee where the claim against the principal is in respect of a debt.1

A suit can be instituted under this order in High Court, City Civil Court, Court of Small
Causes or any other Court notified by the High Court.2

If the subject matter of the suit falls in any one of the above categories, then the suit can be
instituted by presenting a plaint in any Court. The plaint shall have to contain the
specifications mentioned in Rule 2(1) of CPC.

Once the suit is instituted, summon of the suit as per Rule 2(2) of CPCalong with a copy of
the plaint and annexure will be sent to the defendant. 3 The defendant will not be defending
the suit against him unless, he enters an appearance. In case of default in appearance within
10 days, the allegations of the plaintiff in the plaint will be deemed to be admitted and a
decree in accordance to that will be issued by the Court.4

The appearance can either be in person or by a pleader.5 At any time within the prescribed
period of ten days, the defendant by way of an affidavit or otherwise, can disclose such facts
sufficient enough to entitle him the right to defend.6

In the case of Mechelec Engineers & Manufacturers [Link] Equipment Corporation7, the
court laid down certain principles for the appearance of the defendant and his right to defend
the suit in accordance with Rule 3 of Order XXXVII. These principles are to make sure that
the defendant’s right to defend is not being taken away from him and the principle of audi
alteram partem is being followed and described what can be considered as sufficient facts to
entitle the defendant right to defend and the conditions are:

1. If the defendant satisfies the Court that he has a good defence to the claim on its merits.
2. If the defendant raises a triable issue indicating that he has a fair defence.
3. If the defendant discloses such facts as may be deemed sufficient to entitle him to
defend.

1
Rule 1(2) of Order XXXVII of Code of Civil Procedure, 1908
2
Rule 1(1) of Order XXXVII of Code of Civil Procedure, 1908
3
Rule 3(1) of Order XXXVII of Code of Civil Procedure, 1908
4
Rule 2(3) of Order XXXVII of Code of Civil Procedure, 1908
5
Rule 3(1) of Order XXXVII of Code of Civil Procedure, 1908
6
Rule 3(5) of Order XXXVII of Code of Civil Procedure, 1908
7
AIR 1977 SC 577

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Further, in case of Raj Duggal [Link] K. Bansal8, the court described what can be
considered as a triable issue. Describing, triable issue the Court gave certain conditions
which need to be satisfied in order to constitute a triable issue:

1. There is a fair dispute to be tried as to the meaning of document on which the claim is
based.
2. Where the alleged facts are of such a nature as to entitle the defendant to interrogate the
plaintiff or to cross examine plaintiff’s witnesses.

In the case of summary proceeding, a decree will be passed in the following situations:

1. In case the defendant defaults in its appearance then the allegations of the plaintiff
against the defendant will be deemed to be true and a decree in the favour of plaintiff
will be issued. As per the decree the plaintiff will be entitled to a sum which will not
exceed the sum mentioned in the summon, together with interest at the rate which will
be specified in the decree, up to the date of decree and any other sum for cost.9
2. In case the defendant is allowed to defend the case against the plaintiff, the Court may
direct him to give security within a specified time and in case the defendant defaults in
payment of security within the prescribed time, then the decree will be passed in the
favour of the plaintiff.10
3. In case the defendant is granted the right to defend and also deposits the security within
the reasonable time, the suit will follow the ordinary course and the defendant will be
asked to file a written statement under Order VIII.

The Court has the power to set aside the decree that has been passed under the provisions of
Order XXXVII. This power has been enshrined on the Court by Rule 4 of Order XXXVII.

8
AIR 1990 SC 2218
9
Rule 2(3) of Order XXXVII of Code of Civil Procedure, 1908
10
Rule 3(6) (b) of Order XXXVII of Code of Civil Procedure, 1908

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 IN THE COURT OF CIVIL JUDGE (SR. DIV.)

AT CHANDIGARH

Summary Suit No. ____ of 2019

(Under Order XXXVII of the Code of Civil Procedure, 1908)

Raj Pratap, s/o Ranjan Pratap, aged about 45 years, r/o H. No. 125

Sector 38W, Chandigarh

…… Plaintiff

Versus

Arun Kumar, s/o Arihant Kumar, aged about 39 years, r/o H. No. 215

Sector 20A, Chandigarh

…… Defendant

Suit for recovery of Rs.

10,00,000/- along with

interest at 6 percent per

annum.

RESPECTFULLY SHOWETH

1. That the present suit is being filed under the specific provisions under

Order XXXVII of the Code of Civil Procedure, 1908.

2. That no relief, which does not fall within the ambit of this rule, has

been claimed in the plaint.

3. That the plaintiff is a resident of H. No. 125, Sector 38W, Chandigarh.

The defendant who has been residing at Sector H. No. 215, Sector 20A,

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 Chandigarh, is a property dealer currently dealing with properties in

Chandigarh. The defendant is also a friend of the plaintiff.

4. That on 10.03.2017, the defendant approached the plaintiff at his

business place located at S.C.O. 71, Sector 15D, Chandigarh and

requested a loan of Rs. 10,00,000/- (Rupees ten lakhs only) required

by him for the purchase of a piece of land. The defendant agreed to

return the amount by 31.12.2017 along with an interest at 6 percent

per annum. The defendant also signed a promissory note in lieu of the

security for the repayment of loan. The copy of the loan agreement is

attached hereto as ANNEXURE P-1 and the copy of the promissory

note is attached hereto as ANNEXURE P-2.

5. That a reminder notice dated 15.12.2017 was sent by the plaintiff

through registered post bearing no. EP52364782IN on the same date.

The copy of the letter dated 15.12.2017 is attached hereto as

ANNEXURE P-3. The receipt of the registered post is attached hereto

as ANNEXURE P-4.

6. That on 31.12.2017, the defendant didn’t repay the loan of Rs.

10,00,000/- (Rupees ten lakhs only) along with the interest at 6

percent per annum. The defendant didn’t even care to acknowledge the

reminder notice dated 15.12.2017 sent by the plaintiff.

7. That the plaintiff sent a legal notice to the defendant on 01.01.2018 for

the repayment of debt amounting to Rs. 10,00,000/- (Rupees ten lakhs

only) along with interest at 6 percent per annum and granted a further

time till 31.01.2017 to repay the debt. The copy of the letter dated

01.01.2018 is attached hereto as ANNEXURE P-5.

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8. That the defendant replied to the legal notice through letter dated

25.01.2018 requesting the plaintiff to extend the date of repayment till

31.03.2018 to which the plaintiff showed his consent through the

letter dated 27.01.2018. The copy of the letters dated 25.01.2018 and

27.01.2018 are attached hereto as ANNEXURE P-6 and ANNEXURE P-

7 respectively.

9. That the defendant flew to Singapore on 01.03.2018 and didn’t come

back until 01.09.2018. The defendant through letter dated

05.09.2018himself acknowledged that he will repay the amount owed

to plaintiff by 30.09.2018. However, he didn’t make the payment

towards the debt. The copy of the letter dated 05.09.2018 is attached

herewith as ANNEXURE P-8.

10. That the plaintiff on 01.10.2018 sent a final legal notice to the

defendant granting him till 31.12.2018 to repay the loan. The

defendant did not repay the loan on the said date and moreover, the

defendant did not even care to reply to the said notice. The copy of the

notice dated 01.10.2018 has been attached hereto as ANNEXURE P-9.

11. That the cause of action has arisen in favour of the plaintiff and against

the defendant on various occasions which have been enunciated above.

12. That the loan agreement was made and signed in Chandigarh. The

amount of Rs. 10,00,000/- (Rupees ten lakhs only) was advanced in

Chandigarh and the promissory note in lieu of the security for

repayment of loan was signed in Chandigarh. Moreover, the plaintiff

and the defendant are the residents of Chandigarh. Thus, it is humbly

submitted that this Hon’ble Court has Jurisdiction to try the offence as

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 whole cause of action has arisen in Chandigarh and the plaintiff and

the defendant are residents of Chandigarh.

13. That no such similar suit has been filed or is pending before any other

Court of law in India.

14. That this suit has not been filed in collusion with the defendant.

15. That there has been no delay in filing the present suit and the suit is

well within the limitation period as prescribed under the specific

provisions of Limitation Act, 1963.

16. That the plaintiff values the suit at Rs. 10,48,657/- (Rupees ten lakhs

forty-eight thousand six hundred fifty-seven only) for the purposes of

jurisdiction and court fees.

PRAYER

It is therefore humbly prayed before the Hon’ble Court that:

a. The Hon’ble Court may be pleased to pass a decree in the favour of

plaintiff and against the defendant ordering the defendant to repay the

principal amount of the debt amounting to Rs. 10,00,000/- (Rupees ten

lakhs only) along with the interest at 6 percent per annum amounting

to Rs. 48,657/- (Rupees forty-eight thousand six hundred fifty-seven

only).

b. The Hon’ble Court may be pleased to order the defendant to pay

further interest at 6 percent per annum on the amount of decree from

the day of the institution of the suit until the satisfaction of the decretal

amount.

c. The costs of the suit be borne by the defendant.

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d. The Hon’ble court may be pleased to pass any other order in the

interest of Justice, Equity and Good Conscience.

S/d-

Place: Chandigarh Plaintiff

Date: 29.03.2019 (Raj Pratap)

THROUGH COUNSEL

Mr. Arpit Bansal, Advocate,

District Court, Chandigarh

Advocate for Plaintiff

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 VERIFICATION

That the contents of Paras 1 to 8 are true to my knowledge and belief and

the contents of Paras 9 to 14 are true as per the information provided to

me by my Counsel. Nothing substantial has been concealed therein.

S/d-

Place: Chandigarh Plaintiff

Date: 29.03.2019 (Raj Pratap)

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 ANTICIPATORY BAIL

Section 438 of Cr.P.C. provides for Anticipatory Bail. This means that an individual can
seek or request to get bail in anticipation or in expectation of being named or accused of
having committed a non-bailable offence.

Anticipatory bail is meant to be a safeguard for a person who has false accusation or charges
made against him/her, most commonly due to professional or personal enmity, as it ensures
the release of the falsely accused person even before he/she is arrested.

To get anticipatory bail the person seeking it, must approach the Court of Sessions or the
High Court and citing section 438 of the Criminal Procedure Code as well as giving proper
reason, apply for it. If the court, based on a number of conditions and the nature of the case,
sees merit in the petition the bail is granted. Hence if and when the person is arrested, he/she
will be immediately released on the basis of the anticipatory bail.

Conditions that are taken into consideration by the court when granting anticipatory bail
include, but are not limited to:

1. The person will make him/herself available for interrogation by the police as and when
required by them
2. The individual shall not, directly or indirectly, make any threat, promise or offer any
bribe to any person who is connected to the case or knowsfacts about the case, so as to
keep them quiet or to get them to change their report of facts to the court or the police
3. An assurance that the person shall not leave India without prior permission from the
court

The provisions relating to anticipatory bail don’t apply to any act committed under the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

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 BEFORE THE HON’BLEHIGH COURT OF BOMBAY

AT BOMBAY

CRM-M No. ___ of 2018

Salman Khan, s/o Salim Khan, aged about 44 years, r/o 3,

Galaxy Apartments, BJ Road Band Stand,

Bandra West, Mumbai.

…… Applicant

Versus

State of Maharashtra

…… Respondent

Application under section

438 of Code of Criminal

Procedure, 1973 for

Anticipatory Bail to the

applicant in FIR No.

124/2018 dated

25.03.2018under

sections304 Part II, 337,

338 of Indian Penal Code,

1860 and under section

134 read with section 187,

181 and 185 of the Motor

Vehicles Act, 1988.

AND

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 It is further prayed that

the arrest of the applicant

may kindly be stayed

during the pendency of the

present petition.

RESPECTFULLY SHOWETH

1. That the applicant is a law-abiding citizen of India & a permanent

resident of 3, Galaxy Apartments, BJ Road Band Stand, Bandra West,

Mumbai. The applicant is a hard-working cine actor. The applicant has

been falsely implicated in a hit and run case under sections 304 Part II,

337, 338 of Indian Penal Code, 1860 and under section 134 read with

section 187, 181 and 185 of the Motor Vehicles Act, 1988.

2. That a FIR No. 124/2018 dated 25.03.2018 had been lodged in Bandra

Police Station against the applicant alleging that in the intervening

night 24.03.2018 at about 02.45 a.m. he drove a Toyota Land Cruiser

bearing number MH-01-DA-32 in a rash and negligent manner, under

the influence of alcohol with knowledge that people were sleeping on

the footpath in front of American Express Laundry, caused death of

one person and also injured four others by running car over them and

rammed the shutter of American Express Laundry. The copy of the FIR

dated 25.03.2018 is attached hereto as ANNEXURE P-1.

3. That the applicant on 22.03.2018 during the shooting of a movie

fractured his arm to an extent that he was not able to drive. The

applicant was brought to Lifeline Medicare Hospital, Gagan Chambers,

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 Goregaon East, Mumbai for dressing and plaster. The Bill of the

hospital expenses is attached herewith as ANNEXURE P-2.

4. That the applicant humbly submits that the contents of the FIR are

false on the ground that the vehicle alleged to be involved in the crime

was parked at a garage for repair from 20.03.2018 to 27.03.2018 and,

hence, the presence of the applicant in the vehicle is an impossibility.

The receipt of the garage is attached hereto as ANNEXURE P-3.

5. That an application for the Anticipatory Bail was earlier filed before

the Hon’ble District and Sessions Judge at Bombay. The application

was dismissed vide order dated 27.03.2018. The copy of the order

dated 27.03.2018 has been attached herein as ANNEXURE P-4.

6. That the Ld. District and Sessions Judge failed to appreciate the facts of

the case and the material placed on record that the applicant was

injured to an extent so as not being able to drive. He also failed to

appreciate the fact that the car was parked at a garage. The Ld. District

and Sessions Judge gave his decision solely on the basis ofgravity and

seriousness of offence and failed to appreciate other facts of the case.

7. That the applicant is a famous cine actor and his arrest would leave a

deep stain on the applicant’s [Link] is not only the salt

of life but also the purest treasure and the most precious perfume of

life.

8. That the applicant is currently working on multiple films involving

thousands of people. The arrest of the applicant will also be a blow to

the livelihood of the crew involved in the film, the applicant is working

on.

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9. That in Siddha ram Satlingappa Mhatre v. State of Maharashtra,

2011 (1) SCC 694 it was held by the Hon’ble Supreme Court of India

that the courts would lean in favour of grant of Anticipatory Bail as the

arrest should be restricted to exceptional cases of serious magnitude

where the custodial interrogation is imperative.

10. That the applicant undertakes to join the investigation as and when

directed to do so and wilfully cooperate with the investigating

authorities.

11. That the applicant further undertakes to abide by all the terms and

conditions imposed upon him in the event of him being granted

anticipatory bail. The applicant undertakes not to temper with the

evidence, influence the witnesses, leave the city without the prior

permission of the court or the investigating authority as the case may

be and as such will not hinder the investigation, inquiry and trial of the

present case.

12. That the applicant has never been involved in any criminal case. Thus,

the applicant has no criminal background.

13. That the applicant is a popular public figure and a permanent resident

of the of the city and as such there is no possibility of his absconding in

the event of the grant of the anticipatory bail in the favour of the

applicant.

PRAYER

It is, therefore, respectfully prayed before the hon’ble court that:

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a. This hon’ble court may be pleased to allow the application in the

interest of justice, equity and good conscience and the applicant may

kindly be released on bail in the event of his arrest and the appropriate

directions in this regard may kindly be issued to the concerned

Investigating Officer.

b. The arrest of the applicant may kindly be stayed during the pendency

of the present application.

c. The petitioner be allowed to attach the certified copies of the FIR and

order of the Hon’ble District and Sessions Judge at Bombay.

d. The Hon’ble court may be pleased to pass any other order in the

interest of Justice, Equity and Good Conscience.

S/d-

Place: Bombay Applicant

Date: 28.03.2018 (Salman Khan)

THROUGH COUNSEL

Mr. Arpit Bansal, Advocate,

Bombay High Court, Bombay

Advocate for Applicant

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 BEFORE THE HON’BLE HIGH COURT OF BOMBAY

AT BOMBAY

CRM-M No. ___ of 2018

Salman Khan, s/o Salim Khan, aged about 44 years, r/o 3,

Galaxy Apartments, BJ Road Band Stand,

Bandra West, Mumbai.

…… Applicant

Versus

State of Maharashtra

…… Respondent

Affidavit of Salman Khan,

s/o Salim Khan, aged

about 44 years, r/o 3,

Galaxy Apartments, BJ

Road Band Stand, Bandra

West, Mumbai.

I, the above-named deponent do hereby solemnly affirm and declare as

under: -

1. That the above-named deponent has filed the present application in

this Hon’ble Court, which is likely to succeed on the grounds taken in

the same. The contents of the application may kindly be read as a part

of the present affidavit.

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2. That the contents of the application have been read over to the

deponent and the same have been understood by her and the same are

true and correct.

3. That contents of the application are true and correct to the knowledge

and belief of the deponent. No part of it is false and nothing material

has been kept concealed therein.

4. That the deponent has not filed any such or similar application either

in this Hon’ble Court or in any other Court in India.

S/d-

Place: Bombay Deponent

Date: 28.03.2018 (Salman Khan)

VERIFICATION

That the contents of the application are true to my knowledge and belief.

Nothing substantial has been concealed therein.

S/d-

Place: Bombay Applicant

Date: 28.03.2018 (Salman Khan)

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