Suit For Recovery Of Money

Often we come across circumstances where the opposite party fails to return the money or repay the amount within the stipulated period. Hence, there are various legal resources that can be taken by the aggrieved party against the defaulter party.

One of the legal actions an individual can take is to file a civil suit for recovery of money under the Code of Civil Procedure within a stipulated time period. In this article, a clear understanding of what a money recovery suit is, what are the documents required to file the suit for recovery, and the process of filing the suit has been discussed.

A Suit for recovery of money is a civil relief and acts as an effective remedy to recover money from the delinquent. The suit can be filed under Order IV of the Code of Civil Procedure 1908 (CPC). It is a summary suit (Order 37, Code of Civil Procedure) that offers speedy disposal of the suit as here the defendant is not required to defend as a matter of right.

Documents For Filing Recovery Suit

A document that acts as proof for the grant of money from a person to the defaulter is enough to prove the debt.

Promissory notes, Bank account transactions, a contract or other payments so made act as evidence of the lending of money. Also, any document, message, contract, mail, telephonic conversation, or post can serve as proper evidence in the Court to prove the debt.

Process:
What is the procedure for filing a money recovery suit?
Every suit has to be instituted as a plaint. Plaint is narration of facts of the case and the amount that is claimed including the interest if any. In every plaint, an affidavit has to be filed proving the facts.

The following particulars of a plaint:

• Court Name
• Name, description of the plaintiff, and place of residence of the plaintiff
• Name, description of the defendant, and place of residence of the defendant
• Cause of action
• Establishing the jurisdiction of the Court
• Relief that the plaintiff is seeking;
• Any set-off or relinquishment of claim by plaintiff
• Subject matter value for the purposes of jurisdiction and court fees
• Signature and verification. Money recovery is a specific case, and in such cases, the amount claimed must be mentioned in the suit.

Prayag Deb vs. Rama Roy, AIR 1977 CAL I (FB):
The Provisions of Order 37 are merely rules of procedure. They do not alter the nature of the suit or jurisdiction of Courts.

Milkhiram India (P) Ltd. vs. Chamanlal Bros., AIR 1965 SC 1698:
The object underlying the summary procedure is to ensure an expeditious hearing and disposal of suit and to prevent unreasonable obstruction by the defendant who has no defence and to assist the expeditious disposal of cases.

Santosh Kumar v/s. Bhai Mool Singh, AIR 1958 SC 321

Application For Temporary Injunction Under Order 39 Rule 1 OF CPC, 1908
If a person moves to the Competent Court for seeking an Injunction Order does the Court grant all the claims of that person as granted by the Court? However, the process of granting an Injunction is to alter or maintain the "status quo" which completely depends upon the circumstance or grievances of the case. Parties to the case can grant Temporary, Permanent, or Mandatory Injunction.

However, it is not a right of the parties but Injunction is one of the remedies which can be granted by the Competent Court on the equitable principle and the decision is discretionary one. Let us check what exactly the word Injunction means under the Specific Relief Act and procedure to be followed under Civil Procedure Code.

An Injunction is an equitable remedy which is "a judicial process that compels a party to refrain from doing or to do a particular act or thing". If any person disobeys the Order of Injunction passed by the Competent Court then there can be stiff monetary penalties and even imprisonment in certain instances.

The primary purpose of granting interim relief is the preservation of property in dispute till legal rights and conflicting claims of the parties before the court are adjudicated. However, Injunction can also be modified or dissolved if circumstances change in future. Section 94, 95 and Order 39 of the Civil Procedure Code precisely talks about the Injunctions and whereas, the temporary and perpetual injunctions are defined under section 36 to 42 of the Specific Relief Act.

Temporary Injunction:

The temporary Injunction is been granted by the Court when the Defendant is about to the make some injury to the property of the Plaintiff or threatens the Plaintiff to dispossess the property or creates a thirty party interest in the property, then in such situation, the Court may grant a temporary injunction to restrain the Defendant to do such an act or make other order to prevent the dispossession of the plaintiff or prevent the causing of injury to the plaintiff in relation to any property in dispute or creating any thirty party rights in the property.

Temporary injunction is an interim remedy that is raised to reserve the subject matter in its existing condition and which may be granted on an interlocutory application at any stay of the suit. Its purpose is to prevent the suspension of the plaintiff's rights. Section 94 of the CPC provides the supplemental proceeding so that Plaintiff can prevent this right, wherein Section 94 (c) and (e) of Code of Civil Procedure, the Court may grant a temporary injunction or make such other interlocutory orders. These are temporary injunction because its validity is until the further order passed by the court or until the final decree of the case.

What Are The Basic Principles Of Temporary Injunction?

Granting the temporary injunction is the exercise of the discretion which should be in judicial manner. No hard and fast rule can be laid down for guidance of the court to that effect. Therefore it is well settled that, before granting the Temporary Injunction, the Judge has to consider whether the Application is falling into below-mentioned categories/ has Plaintiff shown following points:

1. Prima Facie Case
2. Irreparable Injury
3. Balance of Inconvenience
4. Other Factor

Is it a Prima Facie case: In every application, the Applicant/Plaintiff must make out a prima facie case in support of the right claimed by the Plaintiff? The Court should be pleased that there is a bona fide dispute between the parties wherein the investigation is needed.

The Plaintiff is given the burden to prove and satisfy the court by leading evidence or witness that he has a prima facie case in his favour. The plaintiff should come to Court with clean Any material facts are suppressed by the Plaintiff then, in that case, the Plaintiff is not liable for any relief.

Is there any Irreparable Injury: Further, the applicant must satisfy the court that he will suffer irreparable injury if the injunction is not granted. The Court is satisfied that the Plaintiff needs to be protected from the consequences of apprehended injury. An injury will be viewed as irreparable wherein there exists no certain monetary standard for calculating damages.

The expression irreparable injury however does not mean that there should be no possibility of repairing the injury. It only means that the injury must be a material one. i.e. which cannot be adequately compensated by damages. An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring damages.

Is there any Balance of Convenience:
The Applicant must prove in this application that there is the balance of convenience must be in favour of the applicant i.e. the comparative mischief, hardship or inconvenience which is likely to be caused to the Applicant if the injunction is been refused. The balance of convenience comes into the picture when there is doubt as to the adequate remedies in damages available to either party or both.

Other factors:
The Court also considers some other factors before granting injunction. The relief of injunction may be refused on the ground of delay, laches or acquiescence or whether the applicant has not come with the clean hands or has suppressed material facts, or where monetary compensation is adequate relief.

Section 95 R/W Order 39 Rule 1 And 2 Empowers The Court To Pass Temporary Injunction

• When there is a reasonable apprehension and danger of alienation or disposal of property by any party to the suit or by wrongful waste of the property; or
• When there is an apprehension of alienation or disposal of the property to defraud creditors; or
• Where Defendant threatens to dispossess the Plaintiff or otherwise causes injury to the interest of the Plaintiff or otherwise causes injury to the interest of Plaintiff in relation to the disputed property; or
• When the Defendant is about to commit a breach of contract; or
• Any other injury is likely to be caused or likely to be repeated; or
• Where the Court is of the opinion that for protection of interest of any party to the suit or in the interest of justice injunction or stay is required and necessary.

Manohar Lal Chopra vs. Seth Hiralal, AIR 1962 SC 527

The underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit. It is in the nature of protective relief granted in favour of a party to prevent future possible injury.