Affidavit for Security under Order XXXVII Rule 3(6)(b) CPC

This page provides a sample affidavit format for an interlocutory application concerning security in a summary suit under Order XXXVII Rule 3(6)(b) of the Code of Civil Procedure, 1908 (CPC), together with an explanation of the relevant procedure and an important distinction from attachment before judgment under Order XXXVIII Rule 5.

What Order XXXVII Rule 3(6)(b) CPC Provides

Order XXXVII is the CPC summary procedure for specified suits, including certain claims based on bills of exchange, hundies, promissory notes, written contracts, enactments and guarantees where the relief falls within the scope of the Order.

Under Rule 3, a defendant who has entered appearance may apply for leave to defend after service of summons for judgment. At the hearing of the summons for judgment, Rule 3(6)(b) permits the Court, where the defendant is allowed to defend the whole or any part of the claim, to direct the defendant to furnish security within the time fixed by the Court. Failure to comply with the security requirement or other directions may entitle the plaintiff to judgment forthwith.

Current legal position: Security under Order XXXVII may be imposed as an appropriate condition in cases where conditional leave to defend is justified. Courts must, however, avoid conditions so severe that genuine triable issues are effectively shut out.

For the statutory text, refer to the official India Code portal. You may also see the site's Code of Civil Procedure, 1908 page.

Security under Order XXXVII and Attachment before Judgment are Different

Important: A request that the defendant furnish security because assets are allegedly being removed or disposed of to defeat a future decree may separately fall under Order XXXVIII Rule 5 CPC. That is a protective remedy distinct from security imposed as a condition of leave to defend under Order XXXVII Rule 3.

Order XXXVIII Rule 5 is an extraordinary protective remedy. A plaintiff ordinarily has to place material before the Court showing the statutory basis for apprehending that the defendant is about to dispose of, or remove, property with the object of obstructing or delaying execution of a decree. It should not be used merely to convert an unsecured claim into a secured claim.

The sample below retains the substance of the original format, including averments concerning threatened disposal of assets. Depending on the facts and the relief actually sought, the application and prayer should be adapted to the correct CPC provision and the applicable High Court or local civil rules.

Sample Affidavit Format

Adapt party descriptions, court nomenclature, facts, exhibits, reliefs and verification requirements to the particular case and local court rules.

IN THE COURT OF THE _____________ JUDGE AT _________

INTERLOCUTORY APPLICATION NO. _____ OF 20___

IN

ORIGINAL SUIT NO. _______ OF 20__

MR. __________________________ APPLICANT / PLAINTIFF VS.   MR. __________________________ RESPONDENT / DEFENDANT

AFFIDAVIT

I, __________________, son of __________________, aged ______ years, resident of ______________________________, do solemnly affirm and state as follows:

1. I am the Accounts Manager and authorised signatory of the applicant in the accompanying application and the plaintiff in the suit referred to above. I am fully conversant with the facts and circumstances of the case and am competent and authorised to swear this affidavit on behalf of the applicant.

2. The suit has been filed for recovery of an amount of Rs. __________ together with future interest from the defendant. The amount became due in connection with the sale of generator sets to the defendant. The cheque issued by the defendant was returned for insufficiency of funds. A copy of the cheque relied upon by the plaintiff is produced with the plaint as Exhibit ______.

3. In spite of repeated demands made by the applicant, the defendant failed to pay the amount or settle the account, which necessitated filing of the suit.

4. Before filing the suit, the applicant caused a legal notice to be issued to the defendant through counsel, Mr. __________________. The defendant sent a reply disputing the claim but did not remit the amount. The applicant has further learnt that the defendant is taking steps to dispose of stock and other movable assets in the business premises with the intention of placing the proceeds beyond the reach of creditors and thereby frustrating enforcement of any decree that may ultimately be passed. The source and particulars of this information are: ________________________________________________.

5. The applicant states that, if the defendant is permitted to remove or dispose of the identified assets with the object of defeating execution of a decree, the applicant may suffer serious prejudice. The particulars of the assets and the material supporting this apprehension are set out in the accompanying application and schedule.

6. It is therefore just and necessary, subject to the provision of law invoked in the accompanying application and the satisfaction of this Hon'ble Court, that appropriate directions be issued regarding security and such other protective relief as this Hon'ble Court considers lawful and necessary. If relief of attachment before judgment is sought, the applicant relies upon the specific facts pleaded in support of the statutory requirements governing that remedy.

DEPONENT

VERIFICATION

I, __________________, the above-named deponent, verify that the contents of paragraphs 1 to _____ of this affidavit are true to my personal knowledge and/or based on records and information believed by me to be true, and that nothing material has been concealed therefrom.

Verified at __________________ on this _____ day of __________________, 20_____.

DEPONENT

Solemnly affirmed and signed before me by the deponent on this _____ day of __________________, 20_____.

COUNSEL / AUTHORISED OFFICER, AS APPLICABLE

Order XXXVII Rule 3 CPC: Procedure in Brief

  1. The plaintiff serves the summons together with a copy of the plaint and annexures, and the defendant may enter appearance within the period prescribed by Rule 3.
  2. After appearance, the plaintiff serves summons for judgment, supported by an affidavit verifying the cause of action and amount claimed and stating the plaintiff's belief that there is no defence to the suit.
  3. The defendant may apply for leave to defend by affidavit or otherwise, disclosing facts considered sufficient to entitle the defendant to defend.
  4. Leave to defend may be unconditional or subject to terms that are just. If part of the claimed amount is admitted to be due, the statutory proviso requires deposit of that admitted amount before leave is granted.
  5. If leave is not sought or is refused, the plaintiff may be entitled to judgment forthwith. If leave is granted subject to security or another direction under Rule 3(6)(b), non-compliance may result in judgment forthwith.
  6. The Court may excuse delay in entering appearance or applying for leave to defend where sufficient cause is shown.

Conditional Leave and Security

Supreme Court authority on Order XXXVII recognises that unconditional leave is appropriate where a substantial defence or genuine fair and reasonable triable issue is shown. Where the Court has doubts about good faith or the genuineness of the triable issue, conditions including payment into Court or furnishing security may be imposed, but the conditions should not be unduly severe.

Practical Drafting Points

Identify the exact relief sought and the provision supporting it. If the request concerns a condition attached to leave to defend, plead the circumstances relevant to Order XXXVII Rule 3. If the request concerns preservation of assets before judgment, plead the separate factual requirements relevant to Order XXXVIII Rule 5 and describe the property with sufficient precision. Avoid generic allegations of asset disposal without supporting particulars.

This specimen is intended as a drafting reference. Court practice, amendments, state or High Court modifications and the facts of the case should be checked before filing.