Case: EXECUTIVE TRADING COMPANY PRIVATE LIMITED. VERSUS GROW WELL MERCANTILE PRIVATE LIMITED
Court: Supreme Court of India
Date of Judgment: 25 September 2025
Coram: Hon’ble Justices Ahsanuddin Amanullah and S.V.N. Bhatti 
Citation: 2025 INSC 1157

Summary

The Supreme Court directed that no reply or defence can be allowed to come on record in a summary suit filed under Order XXXVII of the CPC without the Leave of the Court first being obtained by the defendant. The Court set aside an order of the Bombay High Court that had permitted the defendant to file a reply to the Summons for Judgment, thereby bypassing the mandatory procedure of seeking leave to defend. The Court emphasized that allowing a defence without leave effaces the distinction between an ordinary suit and a Summary Suit.

Background

The appeal arose from Commercial Summary Suit No. 19 of 2020 filed by the Plaintiff-Appellant, Executive Trading Company Private Limited, before the High Court of Judicature at Bombay. The suit was filed under Order XXXVII of the CPC to recover an alleged admitted and confirmed total liability of ₹2,15,54,383.50/- together with interest from the Defendant-Respondent, Grow Well Mercantile Private Limited.  

The Defendant, after entering an appearance, filed an application to dismiss the suit for non-compliance with the pre-institution mediation requirement under Section 12A of the Commercial Courts Act. Mediation was attempted but failed. Following an amendment to the plaint and Summons for Judgment allowed by the High Court, the High Court, through the impugned order dated December 5, 2023, directed the defendant to file a reply to the Summons for Judgment.  

The Plaintiff challenged this order before the Supreme Court, contending that the High Court had procedurally erred by allowing a ‘reply/defence’ without the Defendant first filing an application seeking leave to file the defence as required under sub-Rule (5) of Rule 3 of Order XXXVII of the CPC. 

Key Issues

• Whether the High Court could permit a defendant in a Summary Suit under Order XXXVII CPC to file a reply to the Summons for Judgment (a defence) without first filing an application and obtaining the Leave of the Court to defend.  
• Whether this procedural deviation goes to the root of the matter and effaces the distinction between an ordinary suit and a Summary Suit.

Supreme Court Findings

• The step ordered by the High Court, allowing a reply to the Summons for Judgment, was procedurally incorrect and unsustainable.  
• The requirement under sub-Rule (5) of Rule 3 of Order XXXVII of the CPC is for the defendant to file an application seeking leave to file the defence.  
• Allowing a reply or defence to come on record in a summary suit without the Leave of the Court effaces the distinction maintained between a Suit normally instituted and a Summary Suit under Order XXXVII of the CPC.  
• This procedural deviation goes to the root of the matter.  
• The court has the discretion to condone any delay in applying for leave to defend if the defendant shows sufficient cause.

Cited Precedents

• The judgment is in the context of the procedural requirements mandated under Order XXXVII Rule 3 sub-Rules (1) to (7) of the CPC.
  

Important Observations

• The precise question is whether the court could have permitted filing a reply/defence without even praying for leave, setting out the available defence, etc..  
• “we are of the view that the order impugned needs to be interfered with in as much as 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.”

Legal Partners’ Views

The judgment is a crucial reaffirmation of the specialized procedure governing Summary Suits. By striking down the High Court’s order, the Supreme Court has unequivocally stated that the procedural safeguards under Order XXXVII, specifically the mandatory requirement to seek leave to defend, cannot be bypassed. This ruling ensures that the very objective of a Summary Suit—to achieve expeditious judgment in clear debt recovery cases—is not defeated by treating it as an ordinary civil suit.

Outcome

• The appeal stands allowed.  
• The order dated 05.12.2023 passed by the High Court was set aside.  
• The parties are left with the option to pursue remedies in accordance with the steps envisaged in Rule 3 of Order XXXVII of the CPC.  
• The setting aside of the order shall not be understood as foreclosing the options available to the Defendant in the Judgment Summons already issued, and the observations made in the present order shall not prejudice the case of either party. 

Final Thoughts

This ruling reinforces the fundamental distinction between a summary suit and an ordinary civil suit, making it clear that the procedure for granting leave to defend is a mandatory prerequisite to filing a defence. It ensures that the summary nature of the procedure is maintained, preventing unwarranted delays in cases of admitted liability.

SOURCE: LiveLaw