( Collection Attorneys India)
We at Leges Juris Associates, are specialized in filing the money recovery suit against the creditors. Our lawyers and attorneys have filed numerous huge money recovery/debt collection suit before the district court and high court on behalf of individuals, Companies and financial institution to recover there debt etc. We use to file the recovery suit on the following 2 modes**:
If this too fails, either by way of the debtor not responding or refusing to make the payments, it may be necessary to institute legal proceedings against the debtor. Relevant papers in one’s possession that are related to the amount due (debt)debt or any documents of a similar sort including a copy of the correspondence between oneself and the debtor should be kept.
The limitation period for filing a civil recovery suit in India is 3 years. After that the claim is barred by time. It is imperative to decide which Court of law one should file their suit for recovery. In India, according to the Civil Procedure Jurisdiction, the pecuniary or monetary jurisdiction of the Courts depends on the state in which the cause of action arises. The pecuniary jurisdiction of the Court divides the Court on a vertical basis, which means that depending on the valuation of the suit filed, there are different levels of Courts with different monetary jurisdictions, and the suit will have to be instituted in the Court which has the required jurisdiction. For example, the pecuniary jurisdiction of the Courts in Delhi areas follows:
-Civil Judge before District Courts.
– Senior Civil Judge ,District Courts
-Addl. Districts Judge, Districts Courts.
-Delhi High Court.
What is the Debt Recovery Suit/Money Suit under order XXXVII of C.P.C.(Suit Under Order 37 CPC)
A summary suit is instituted by presenting a plaint in the court containing the following specification ;
It must mention that the suit is filed under summary procedure and below the title of the suit it should be inscribed “Under Order XXXVII of code of Civil Procedure, 1908”.
It must state that no relief, which does not fall within the ambit of this rule, has been claimed.
Then the summons of the suit are to be issued to the defendant, which should be in prescribed from no. 4, accompanied with a copy of plaint and Annexures.
When the defendant appears, he is required to enter his appearance within 10 days of receipt of summons. On default of his appearance it is assumed that he has admitted the allegations made in the plaint and the plaintiff gets entitled to a final order granting him the sum as mentioned in the plaint along with interest at the specified date and costs if the Court thinks it appropriate. (Rule 2)
Where the defendant enters an appearance, the plaintiff is required to serve on him the summons for judgment in Form no. “4A) accompanied with an affidavit verifying the cause of action and the amount which is claimed in the plaint, and a statement to the effect that there is no defence to the suit.
Then, the defendant may apply for leave to defend the suit within 10 days from the date of service of summons, disclosing by way of an affidavit, such facts which he believes to be sufficient to entitle him of the right to defend himself.
The Court shall not refuse permission to the defendant to defend the suit unless it believes that the disclosure by the defendant does not show that he has any substantial defence to raise or that it is frivolous.
Also, where the defendant admits part of the amount claimed by the plaintiff, then the court shall permit the defendant to defend only, when such admitted amount is deposited by the defendant in the court.
The court may also require the plaintiff or the Defendant to deposit some security amount by way of costs, depending on the facts, i.e. to ensure the Bonafide of plaintiff or Defendant.
winding up petition against companies due to non payment of dues or debt.
A winding up petition is, therefore, not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. The court is competent, in consideration of circumstances to refuse to pass an order of winding up even if the company is unable to pay its debts
Winding up is a process by which the affairs of the company come to an end. It has been described as “…a process whereby its life is ended and its property administered for the benefit of its creditors and members. An administrator, called liquidator, is appointed and he takes control of the company, collects its assets, pays its dues and finally distributes any surplus among the members in accordance with their rights”
The jurisdiction of the High Court under Section 433 is not that of a court which is essentially meant for settling money disputes between parties, but is to subserve the object of winding up of companies which have not paid their debts or which are unable to pay their debts3. Thus, the object of Section 433 is to provide a summary remedy and save the shareholders or creditors of a company, where a company is unable to meet its admitted liabilities.
Proceedings under Section 433 are not a substitute for a civil suit by a creditor against the company. The mere filing of a civil suit need not be an impediment to proceed with the company petition for winding up
Inability to Pay Debts by Companies(New Page)
Section 433(e) of the Companies Act, 1956 provides that in cases where the company is unable to pay its debts the court can order winding up. The expression ‘unable to pay its debts’ has to be taken in the commercial sense of being unable to meet current demands though the company may be otherwise solvent. The fact that the liabilities exceed the assets does not necessarily mean that the company is unable to pay its debts. It may still be in a position to meet the demands of the creditor when made. However, where the court is satisfied upon a general perusal of the balance sheet that the company cannot pay its debts i.e., its assets are not sufficient to satisfy its liabilities, the court may order the winding up of the company.
The inability to pay debts primarily arise under three circumstances,
- Where the company fails to clear the debt of the creditor (a sum exceeding five hundred rupees) within three weeks immediately preceding the date of demand for payment being made
- Where execution or other process issued on a decree or order of any court in favour of the company is returned unsatisfied in whole or part and
- Where it is proved to the satisfaction of the court that the company is unable to pay its debts.
– The attorney firm used to file order xxxvii CPC for recovery of money /debt in the cases where there are any written contract, dishonored, cheque ,bill of exchange,hundies and promissory notes, in which the parties/client seeks only to recover a debt or liquidated demand in money payable by the opposite party/defendant with or without interest, arising.
-The attorney of the firm also file on the basis of on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of debt other than a penalty.
– winding up petition against companies due to non payment of dues or debt.
-Simple Money Suit on basis of Invoices and bills
-Money Recovery Suit on basis of Dishonored of Cheque.
-Money Recovery Suit on basis of Letter of Credit.
-Suit for damages due to Business Loss by parties
-Debt Recovery Arbitration
-Suit related to Banking Cases or DRT Cases
-Foreign or International Commercial debt recovery Law Suit
-Foreign Award related to arbitration award of execution in India.
-Foreign money recovery decree execution under Indian Laws.
-Dealer or Distributors damages suit or money recovery suit.
-Importers financial loss civil compensation suit
-Exporters/National of International Firms/Companies Commercial or Money Suit.