Mandatory compliance of Special Procedure in Summary Suits and the deprivation of the Defendant's opportunity to defend due to non-compliance with the mandatory provision of serving the correct summons.

This Application has been filed under Order XIV r/w. Order VII Rule 9 of Original Side Rules (hereinafter referred to as “O.S. Rules”) to set aside the Order/Decree dated 10. 2003 passed in C.S.No.664 of 1996.

2. The Respondent/Plaintiff is said to have supplied goods to the Applicant/Defendant under invoices. Alleging that the Applicant/Defendant had not made the payment towards the supply of materials, the Respondent has filed the Suit in C.S.No.664 of 1996 for recovery of a sum of Rs.11,90,725/- with interest at the rate of 21% p.a. The Suit was instituted as Summary Suit under Order VII Rule 1 of O.S. Rules r/w. Order 37 Rule 2 C.P.C. The Suit summons was served on the Applicant/Defendant on 211. 1996. The Defendant has neither filed the written statement nor filed a Petition seeking leave to defend the Suit within 10 days of receipt of the Summons. After putting up necessary Office Note, the Suit was posted before the Master for passing a decree. When the Suit came up for hearing before the Master, the learned Counsel for the Applicant/Defendant sought for time to file an Application seeking leave to defend. Observing that since the Suit is of the year 1996 and no purpose would be served in keeping the Suit pending further, the learned Master declined to adjourn the matter and decreed the Suit as prayed for by the order dated 10. 2003, which is challenged in this Application.

3. The Applicant/Defendant raised mainly three contentions:

.* The Summons served on the Applicant was not in the stipulated form – form No.13-B. On the other hand, the Summons served on the Applicant was in Form No.13, which is prescribed for a Regular Suit.

.* The mandatory requirement of the Special Procedure as contemplated under Order VII of O.S. Rules was not complied with and the Applicant was not put on Notice and that the Suit was filed as a Summary Suit.

.* The Pliant averments do not indicate that the Suit was filed to recover a liquidated claim and the plaint can never be said to be filed under Order VII of O.S. Rules and Order 37 Rule 2 C.P.C.

4. The learned counsel for the Respondent/Plaintiff has concerned that the procedural defect cannot be a ground for setting aside the decree. It was further submitted that when summons was served in Form No.13, the Defendant could have very well filed the written statement and that the serving of Form No.13 could not have caused any prejudice to the Applicant as contended.

5. I have carefully considered the submissions and perused the records. The main point falls for consideration is, whether the mandatory provision of Order VII of O.S. Rules was not complied with and non-issuance of summons in the prescribed Form No.13-B has caused prejudice to the Applicant depriving him of the opportunity in filing the Application seeking leave to defend.

6. Order VII of O.S. Rules contemplates Special Procedure in respect of certain Suits. The Suit falling in Classes of Suits specified in Order VII Rule 1 of O.S. Rules can be filed either as a Summary Suit or as a Suit in an ordinary manner. The underlying policy behind Order VII of O.S. Rules (Order 37 Rule 1 CPC) is expeditious disposal of Suits of commercial nature involving liquidated demand evidenced by a document or any money payable by the Defendant arising on a Negotiable Instrument or on a Bond or a Contract.

7. Order VII of O.S. Rules contemplates Special Procedure to be followed in respect of Summary Suits and compliance of Special Procedure is mandatory and a bare reading of Order VII of O.S. Rules makes it clear that the compliance of the Special Procedure is mandatory. Order VII Rule 2 of O.S. Rules reads as under:

“Special procedure in respect of suits under this order.

2. Subject to the provisions of Rule 7 below the procedure prescribed by this order shall be followed in all suits instituted under Rule 1 above the ordinary procedure being excluded to that extent.

8. As per Order VII Rule 3 of O.S. Rules, the summons shall