A suit for damages cannot be instituted by way of a summary suit under Order 37 of the Code.

1. The present appeal is directed against the order dated 2nd April, 2002, passed in Summons for Judgment No. 1408 of 1999 in Summary Suit No. 5511 of 1999. By the impugned order, the learned single Judge granted Summons for Judgment in favour of the original plaintiffs and the suit was decreed in terms of prayer clauses (a) and (b) of the suit.

2. The respondents plaintiffs instituted the aforesaid Summary Suit on the ground that the first defendant was appointed as a Software Engineer in Grade II cadre by the plaintiffs by issuing appointment letter. The first defendant was put on probation period for six months. During the period of probation, both the parties had an option to terminate the services of first defendant by giving one month's notice or one month's salary in lieu thereof. After commencement of the service, defendant Nos.1 and 2 entered into contract with the plaintiffs and as per the said contract, the plaintiffs were to send the first defendant for training. It may be mentioned here that the second defendant is the father of the first defendant who had signed the service bond as a guarantor. The first defendant undertook to complete the training and thereafter he further undertook to serve the plaintiffs for a minimum period of two years from the date of completion of such training. The second defendant also entered into a contract with the plaintiffs guaranteeing that the first defendant will abide by the contract. The contract in question is dated 25th August, 1998. As per clause (3) of the said contract, in case the first defendant fails to complete the training or gives up the service in breach of the terms of the contract, he will be liable to pay an amount of Rs. 5,00,000/(Rupees Five lakhs only) to the plaintiffs as liquidated damages. Relying on the said clause, the plaintiffs instituted the said suit as the first defendant has left the services without completing the training period. The first defendant resisted the aforesaid claim on the ground that the plaintiffs were not entitled to get the aforesaid amount and that since it is an amount of liquidated damages, the suit under Order 37 of the Code of Civil Procedure, 1908, hereinafter referred to as “the Code” , is not maintainable. It is the case of the first defendant that the plaintiffs will have to prove its case for getting the decree for liquidated damages by leading evidence as to the actual loss suffered by the plaintiffs in view of the so called abandonment of service by the first defendant.

3. The learned single Judge, after considering the submissions of both sides, came to the conclusion that the suit filed under Order 37 of the Code as a summary suit is maintainable and that since the defendants have no defendible case, the Summons for Judgment is required to be granted and accordingly the suit was decreed by the learned single Judge which order is impugned in this appeal.

4. We have heard the learned counsel appearing for the appellants and also gone through the order of the learned single Judge. None appeared on behalf of the respondents. So far as the factual aspect of the matter is concerned, the aforesaid suit is filed on the basis of an alleged breach of contract on the part of the first defendant and for getting the liquidated damages. The case of the plaintiffs is that since the first defendant had abandoned the services during the training period, the plaintiffs were entitled to claim damages which is an ascertained sum of money as per the contract. The learned single Judge accepted the said fact and has decreed the suit.

5. The principal question, in our view, which requires consideration is as to whether such type of suit can be instituted by resorting to Order 37 of the Code. In this behalf, reference is required to be made to the provisions of Order 37 of the Code which reads as under:

“1. Courts and classes of suits to which the Order is to apply.(1) This order shall apply to the following