IMPORTANT POINTS FOR CONSIDERATION
Order XXXVII of the Code of Civil Procedure provides for Summary Suits. The objective of Order XXXVII is to recover the crystallized dues, which are principally based upon a written document executed in the course of business.
Order XIIIA provides for Summary Judgment and the said order was inserted vide Commercial Courts Act, 2015 w.e.f. 23.10.2015 and was made applicable to Commercial Disputes of a Specified Value.
Section 2(c) of the Commercial Courts Act, 2015 provides for Commercial Disputes.
Section 16 of the Commercial Courts Act, 205 provides for the amendment to the CPC in its application to commercial disputes.
Section 21 of the Commercial Courts Act, 2015 provides that the act has an overriding effect.
MOOT QUESTION
Can a Commercial Suit be filed as a Summary Suit under the Provisions of Order XXXVII of the Code of Civil Procedure, 1908 after the establishment of the Commercial Court under the provisions of the Commercial Courts Act, 2015?
ARGUMENT IN FAVOR OF THE PROPOSITION
That there is no provision either in the Code or the Commercial Court Act which prohibits the applicability and continued application of Order XXXVII to the Commercial Court constituted under the Commercial Court Act and after the enactment of the Commercial Court Act, 2015, the same has resulted only in a partial amendment of the CPC and the list of amendments carried out in the code does not provide for repeal or commission of Order XXXVII of CPC.
Moreover, the purpose behind the enactment of the Act and insertion of Order XIII-A CPC proves that the provisions of Order XXXVII are and shall remain coextensively applicable and remain in force for all effective and comprehensive purposes.
Thus, whenever the Act desires the deletion, commission or repeal of any of the provisions of the Code, it has expressly or specifically repealed and omitted the provisions of the CPC, which ultimately cannot be applied but the provisions which are not deleted and though the new provisions are simultaneously added that by itself cannot distinguish rather result in the inapplicability of a particular provision especially when the new Order XIII-A stipulates a simultaneously new and different procedure and yield additional power to the other provisions of the Code.
In view of the above submissions, the Summary Procedure as envisaged under the provision of Order XXXVII of the CPC is applicable to the Commercial Suits filed before the Commercial Courts established under the Commercial Courts Act, 2015.
ARGUMENT AGAINST THE PROPOSITION
Summary suit as contemplated under Order 37 of CPC and its specific provisions are governed by the original provisions of CPC. The amended CPC in view of section 16 of the Commercial Courts Act, 2015 inserted the provision of summary judgement through Order XIII-A which is made applicable to suits of commercial nature which are required to be decided by the Commercial Courts. Order XIII-A CPC also prescribes the procedure and stages of application of Summary Judgment and provides for the powers of a Commercial Courts to pass conditional order including evidence for hearing of Summary Judgment.
Further, Order XIII-A also specifies that before the enactment of Order XIII-A CPC, if a suit of commercial nature was filed under Order XXXVII CPC, the provisions of Order XIII-A would not have any application Moreover, section 21 of the Commercial Courts Act carries weightage which says that the Commercial Courts Act, 2015 will heaven overwriting effect notwithstanding anything inconsistent therewith in any other law for time being in force. Thus the conjoint reading of section 2(1) c of the Commercial Courts Act, 2015 which defines commercial dispute and specific value, and as summary suits of commercial nature fall under the definition of the commercial dispute as provided under the provisions of the Commercial Courts Act, 2015 the provisions of Commercial Courts Act, 2015 would be made applicable to such suits petitions and applications and appeal in question.
Therefore all the suits relating to a commercial dispute as defined under the provisions of section 2(1) c of the Commercial Courts Act, 2015 will have to be tried as per the provisions of the Commercial Courts Act, 2015 and therefore all the applications and petitions pending or fresh apart from those which were originally filed under Order XXXVII will have to be governed by the Commercial Courts Act, 2015. The object behind the enactment of the Commercial Courts Act, 2015 was an account of rapid economic developments, and due to considerable increase in commercial activities and also to create a positive image among the stakeholders. The intention of the legislature behind the insertion of Order XIII-A was very clear and therefore after the 2015 amendment any suit of commercial nature relating to the commercial dispute would fall under the provision of the Commercial Courts Act, 2015 and would be governed by the provisions of this act and not by Order XXXVII of the CPC. Thus, if a summary suit of commercial nature is allowed to be filed under Order XXXVII instead of the provisions of the Commercial Courts Act, 2015, it would only negate the very purpose of the Act but also frustrate rather it would create chaos in the minds of the stakeholders with regard to the implementation and compliance of the Commercial Courts Act, 2015.
In view of the above submissions, the Summary Procedure as envisaged under the provision of Order XXXVII of the CPC cannot be made applicable to the Commercial Suits filed before the Commercial Courts established under the Commercial Courts Act, 2015.
OPINION OF THE AUTHOR
It is submitted that a commercial suit originally filed as a Summary Suit under the provisions of Order XXXVII CPC would be governed by the provisions of the said order. However, suits relating to disputes of commercial nature, after the 2015 amendment, will have to be filed and governed by the provisions of the Commercial Courts Act, 2015 which provides a summary procedure in alternative to the procedure as envisaged in Order XXXVII by way of insertion of Order XIII-A CPC which provides for Summary Judgment. Thus the provisions of Order XIII-A and the Commercial Courts Act, 2015 will have to be made applicable to all the suits of commercial nature filed under the Commercial Courts Act, 2015 and the same cannot be filed as a summary suit under Order XXXVII of CPC as Commercial Courts Act, 2015 has an overriding effect over the provisions of the Order XXXVII of CPC and thus all commercial suits relating to commercial disputes will have to be filed under the provisions of the Commercial Couts Act, 2015 and not Order XXXVII of CPC.
AUTHOR: HITESH P VACHHANI
DISCLAIMER
The above article is for educational purposes only. It is a result of the author’s own intellect and ideas and proper references and citations have been mentioned in the article for a deeper understanding of the issue discussed above. The matter embodied has been properly referenced and acknowledged to avoid any kind of copyright issues.
JURISTIC LEGAL 