What Is the Summons for Judgment in a Summary Suit?

In short: the second summons, and whether there'll be a trial

Order XXXVII of the Code of Civil Procedure, 1908 (CPC) uses two summonses in a summary suit. The first is the special form summons, telling the defendant he has 10 days to enter appearance. The second, the summons for judgment, comes only after he has appeared. It says something quite stark. The plaintiff is asking for a decree right now, and if the defendant wants a trial, he gets 10 days to explain why he deserves one.

This is the whole trick of Order 37. Normally a defendant files his written statement as a matter of right, and the suit rolls on to framing of issues and evidence. Not here. In a summary suit he starts with no right to defend. He must ask for it, through a leave application answering the summons for judgment, and the judge reads the affidavits and papers to decide if a trial is warranted. No application, or leave refused? Then the plaintiff gets his decree there and then.

For a creditor, this is where Order 37 actually delivers its speed. For a defendant, it's where most summary suits are won or lost, often within a few months of the first hearing. Our summary suit service page explains the procedure from notice to decree. This guide stays with this one stage.

Order 37 Rule 3, and the rest of the law behind it

Where this summons sits in the life of the suit

Picture two gates. The first is appearance. When the court registers the plaint it issues the special form summons, and from service the defendant has 10 days to pass through, by filing a vakalatnama or memo of appearance with an address for service. Miss that, and the suit can be decreed under Rule 2(3). The summons for judgment never comes into it.

Gate two is leave. With the defendant now on record, the plaintiff files the Form 4A summons for judgment and its affidavit, and serves them. The defendant's 10 days begin, and he usually answers with a detailed affidavit and documents seeking leave. The plaintiff replies. Sometimes the court allows a rejoinder. Both the summons for judgment and the leave application are then argued in one hearing.

The order at the end of that hearing decides what kind of case you have. A decree finishes it, leaving only an appeal. Unconditional leave turns it, more or less, into a regular commercial suit, complete with written statement, document disclosure and a case management hearing under Order XVA. Conditional leave is a fork in the road for the defendant. He pays in or furnishes security within the time given. Or judgment follows.

Taking out the summons for judgment, one step at a time

This is how the stage usually runs in Delhi NCR commercial courts. Each court has its small habits, so go by the order sheet.

1. Confirm the appearance

   Look at the order sheet, and the case status on the e-courts or High Court website, to see whether the defendant has appeared and filed an address for service. If his notice of appearance hasn't reached you, ask for a copy. The date matters. Everything after this is counted from service, not from the hearing date.

2. Finalise the affidavit

   The plaintiff swears it. For a company or firm, it's an officer authorised by a board resolution or partnership authority who actually knows the account. It verifies the cause of action and the amount, refers to the documents already on file, and states the belief that there's no defence.

3. File the summons in Form 4A

   File the summons for judgment and the affidavit in the registry or by e-filing, with the process fee. The court or registry directs that it issue. Many courts also let the plaintiff serve it directly on the defendant's advocate.

4. Serve it, and keep the proof

   Serve at the address for service the defendant filed, and on his advocate. Use every mode the court allows, from court process and speed post to approved courier and, where permitted, email. Hold on to tracking reports and acknowledgments. The 10 days run from service.

5. Put the 10 days in your diary

   Count 10 days from the date the defendant was served. If no leave application comes in that time, mention it at the next hearing and ask for judgment under Rule 3(6)(a).

6. Answer the leave application

   If the defendant applies for leave, file a reply within the time the court gives and meet each alleged defence with a document. Keep the arguments short. The judge wants to see why the defence is moonshine, not read a second plaint.

7. Argue the summons for judgment

   At the hearing the court reads the plaint, the affidavits and the documents. It then decides whether to decree the suit, grant leave unconditionally or grant it on terms. Carry a one-page note of dates and amounts for the judge.

If the papers were ready before filing, taking out a summons for judgment under Order 37 is quick work. Weeks get lost when a plaintiff only starts thinking about it at the first hearing.

What the affidavit should actually say

Rule 3(4) asks for three things. Verify the cause of action, verify the amount claimed, and state that you believe there's no defence. Technically, a one-paragraph affidavit can do that. It rarely helps. This affidavit is your sworn account in front of the judge who'll decide leave, and a thin, formal version leaves the field wide open for the defendant's story.

Keep it short, by all means. Just make it specific. Name the contract or the invoices. Give the total and break it into principal and interest. Point to anything where the defendant admitted the debt (a signed ledger confirmation, an email accepting the balance), and list every part payment by date. Say what interest rate you're claiming and why, whether it's the contract, the terms printed on the invoice or, if you're a registered micro or small supplier, Sections 15 to 17 of the MSMED Act, 2006. The numbers must tally with the plaint and the summons to the rupee. If they don't, you've handed the other side an easy point.

Look at what the buyer has already said. A grumble about quality in some email, a request for a discount, a line saying the job was left half done. Whatever it is, the affidavit should meet it head-on with dates and papers. Advocate B.K. Singh goes back through the final few months of emails and letters before the suit whenever he drafts one of these, and answers the objection they foreshadow. In our experience the defence that gets leave is very often one that surfaced in correspondence and then went unanswered on oath.

Pick a deponent who can genuinely stand behind the account. A director who's never seen the ledger, signing in a hurry, makes a weak witness if the court starts asking questions. In commercial suits the plaint is already verified by a statement of truth under Order VI Rule 15A. Take the same care here. A false statement on oath has consequences of its own.

And if the defendant never answers the first summons?

In that case the second summons never comes into it. Under Rule 2(3), silence counts as admission. The plaintiff can have a decree up to the amount named in the summons, plus interest at the specified rate and costs. Before it signs anything, though, the court will want to be sure the defendant was really served. Your service report, the India Post tracking printout and any 'refused' endorsement suddenly become very important papers.

Faster, yes. But there's a catch. A defendant who can later prove he was never properly served may go back to court under Rule 4 and get the decree set aside. So serve everywhere you know of (the registered office, any branch, the address written in the contract) and keep proof for each one. Our guide on what happens if the defendant does not appear in a summary suit goes through this situation.

How long does the defendant get, and can it be stretched?

Ten days from service of the summons for judgment, to apply for leave to defend. That's a different period from the 10 days for appearance, which ran from service of the first summons. Defendants mix the two up. So do some lawyers. It's an expensive mistake.

Under Rule 3(7) a court may condone the delay if there's sufficient cause, and it does happen, generally with costs, when the excuse is real and the delay brief. Illness can be enough. So can a wrong date on the process that misled the advocate's clerk, or service at a branch that had already closed. What courts won't easily forgive is silence, or a delay that's really just a big company's approval chain moving slowly. Order 37 is meant to be quick. A defendant who's casual about the 10 days gives the court every reason to keep it that way.

One more trap. A written statement filed in place of a leave application does nothing for you, because it isn't one. Without leave, the defendant simply has no right to defend. What's needed is an affidavit laying out the facts of the defence, backed by documents. Our page on applying for leave to defend a summary suit explains what that should contain.

Time and costs at this stage

What the court can do at the hearing

The judge has four basic choices. If nobody applied for leave, a decree follows. If the defence is frivolous, vexatious or shows nothing worth trying, leave is refused and, again, a decree follows. If the defence is substantial, or at least honest and arguable, leave is granted without conditions. Between those sits conditional leave. The defendant gets to fight, but only after depositing all or part of the claim in court or furnishing a bank guarantee. Courts reach for that option when there's a triable issue but they aren't convinced the defence is genuine or likely to succeed.

These categories come from IDBI Trusteeship v. Hubtown (2016), and Delhi courts apply them closely. An admitted amount has to be deposited before leave is granted for the rest. In practice, courts sometimes decree the admitted part and grant leave only on what's disputed. If leave comes with conditions and the defendant doesn't comply in the time fixed, Rule 3(6)(b) entitles the plaintiff to judgment forthwith.

Deposit amounts and deadlines vary. Our guide on conditional leave to defend and the deposit a court can ask for covers how courts set them. For a plaintiff, a conditional order is often almost as good as a decree, since the money in court or the bank guarantee protects the claim for as long as the trial lasts.

Does the plaintiff have a deadline to take it out?

Rule 3(4) doesn't set one. It says the plaintiff shall serve the summons for judgment after the defendant enters appearance, and stops there. Some High Court rules and practice directions do address timing, so check the rules of the court where your suit is pending. Even if nothing's written down, delay only helps the defendant.

Leave a summary suit parked at appearance for a year and you've thrown away the reason for filing one. The defendant uses the time to shift assets. The judge sees a plaintiff who isn't in a hurry. Your argument that the claim is clear and pressing weakens with every adjourned date. Stop appearing altogether and the suit can be dismissed for default under Order IX. Getting it restored then takes a separate application.

Stalled files that land on Advocate B.K. Singh's desk usually tell the same story. The defendant appeared. Then nobody filed the summons for judgment, and the case drifted from date to date marked 'completion of service' or 'appearance'. His habit is to have the Form 4A summons and its affidavit drafted, matched against the plaint and signed before the first date even arrives. It can then be filed the very day the defendant turns up.

Serving the summons, and what to do if service fails

Service is easier than for the first summons. The defendant has already filed an address for service under Rule 3(1), and under Rule 3(2), every summons, notice and process left at that address is deemed duly served. Plaintiffs usually serve the defendant's advocate as well. Most courts accept it, and it heads off any argument about whether the defendant knew.

Use every channel the court permits. Court process, registered post or speed post, an approved courier, and email if the rules allow it. Save the tracking printout, the courier's proof of delivery and a screenshot of the sent email that shows the date. A 'refused' report counts as evidence of service too.

If service fails, don't assume the 10 days have started. They haven't. Ask the court for directions on fresh or substituted service. A decree passed on shaky service of the summons for judgment is an open invitation to a Rule 4 application later, and that can cost you far more time than doing service properly would have.

Papers to have ready

• A full copy of the plaint and every document filed with it, page-numbered the way the court record is
• The order sheet showing when the special form summons was served and when the defendant appeared
• The defendant's notice of appearance and the address for service he filed
• The draft Form 4A summons, with the claim amount exactly matching the plaint
• The supporting affidavit, plus the board resolution or authority letter for whoever signs it
• The contract, purchase orders, invoices, delivery challans or work completion records
• A ledger extract, and any signed balance confirmation or acknowledgment of the debt
• Bank statements showing part payments, and cheque return memos if a cheque bounced
• A Section 63 certificate under the Bharatiya Sakshya Adhiniyam, 2023 for the emails, ledgers and WhatsApp messages you're relying on
• An interest sheet showing the rate, the period and where the rate comes from
• Postal receipts, tracking reports, courier proofs and copies of emails showing service

Mistakes we see here, from both sides

• Thinking the first hearing is the finish line. Plaintiffs relax once the defendant appears. That's exactly when the summons for judgment should go in.
• A deponent who doesn't know the account. If the person signing has no personal knowledge, expect a leave application that goes after the affidavit itself.
• Figures that don't match. The plaint, the special form summons, the summons for judgment and the affidavit should all show the same amount. If a part payment came in later, explain it.
• Ignoring the defence that's already sitting in the emails. If there's a complaint about quality or delay in the correspondence, answer it on affidavit before the defendant brings it up.
• Serving at the wrong address. The address for service under Rule 3(1) is the one that counts. Serve only at some old office and you'll be arguing about whether service happened at all.
• Defendants counting from the wrong date. The leave window runs from service of the summons for judgment. Not from the first summons, and not from the next hearing.
• Defendants filing a bare denial. A leave application that just says 'the claim is denied', with no facts and no documents, is the kind courts refuse most often.

Which court hears it in Delhi, Noida, Ghaziabad and Gurugram

Simple answer first. The court where your summary suit is pending hears the summons for judgment. In Delhi, commercial suits with a specified value between Rs 3 lakh and Rs 2 crore are filed before the District Judge (Commercial Court) at one of the district complexes, which means Tis Hazari, Saket, Karkardooma, Rohini, Dwarka, Patiala House or Rouse Avenue. Bigger suits, over Rs 2 crore, belong in the Commercial Division of the Delhi High Court. Raising the district court ceiling has been under consideration for a while. Confirm the current limit before filing.

In the Delhi High Court, routine steps like completing service and filing pleadings often go before a Joint Registrar. The judge decides the leave application and the summons for judgment. In the district courts, the commercial court judge handles the lot.

Outside Delhi, each district in UP and Haryana has a court designated to hear commercial cases, and that's where your suit goes. That covers Surajpur for Gautam Buddh Nagar, and Ghaziabad, Gurugram and Faridabad too. Smaller claims, under the Rs 3 lakh specified value, are different. So are summary suits that aren't commercial at all. Both go to whichever ordinary civil courts the High Court has notified for Order XXXVII. If you're torn between the district court and the High Court, our guide on whether to file a summary suit in the district court or the High Court goes into it.

You've just been served a summons for judgment. Now what?

Write down the date and mode of service, and count 10 days from it. Then collect every document that backs your side. The contract. Your complaints about quality or delay, with dates. Credit notes, debit notes, proof of payments the plaintiff hasn't credited, and any agreement to give more time or cut the price. A defence that lives only in your memory won't get leave.

Work out, honestly, which part of the claim you actually contest. Admitted amounts have to be deposited before leave is granted for anything else, and judges notice very quickly when a defendant denies a figure his own accountant signed off on. So own up. Deposit that part, or at least offer to. Your leave application should be an affidavit full of facts. Legal objections alone won't carry it.

If you're the defendant and want the whole picture, read our guide on how to defend a summary suit filed against you. It also covers preliminary objections, like whether the suit falls within Order XXXVII at all, and whether Section 12A mediation was needed.

How it plays out for different kinds of business

Suppliers and traders usually have the easiest time at this stage. Invoices, delivery challans and ledgers line up into a clear account. The fight tends to be over quality complaints and discounts, so the affidavit should get ahead of both. Service firms and IT vendors are in a weaker spot unless they have a written contract or signed statements of work. Without those, the defendant can argue the amount isn't a liquidated demand at all.

Lenders suing on a loan agreement or promissory note meet a different defence. The money was an investment, the borrower says, or the note was signed blank. So the affidavit should attach the bank transfer and any interest payments. Registered micro and small enterprises should claim MSMED Act interest and explain it in the affidavit. Defendants often attack the rate rather than the principal.

Big companies, as defendants, often lose the 10-day window to internal approvals, with legal, finance and the business head each waiting for the other to sign off. We see it a lot. A startup or MSME plaintiff with its papers ready, serving promptly, gains a real edge here just by following the rule on time.

What to do this week

Plaintiffs, look at the order sheet today. If the defendant is on record and the summons for judgment still hasn't been filed, get the Form 4A and the affidavit ready, tally every number with the plaint, and file. If the suit itself is still unfiled, prepare the affidavit together with the plaint. Get Section 12A mediation out of the way first, too, unless you genuinely need urgent relief. Our page on pre-institution mediation explains the process.

If you're the defendant, count your 10 days from service of the summons for judgment and start on the leave application now. Not on day nine. Our summary suit page sets out what each side can expect after this stage.

If you'd like a second pair of eyes on your summons, affidavit or leave application before the deadline, or want updates as courts shift their approach, send the papers to Advocate B.K. Singh's team through the contact page.