Provisional Sentence Summons
Where by law any person may be summoned to answer a claim made for provisional sentence, proceedings shall be instituted by way of a summons as near as may be in accordance with Form 3 of the First Schedule of the Uniform Rules of Court in High Court matters, and Form 2A of Annexure 1 of the Magistrates’ Court Rules in
Magistrates’ Court matters, calling upon such person to pay the amount claimed or, failing such payment, to appear personally or by counsel or by an attorney upon a day named in such summons, not being less than 10 days after the service upon him/her of such summons, to admit or deny his liability.
This process provides a creditor with a liquid document with a speedy and less expensive remedy for the recovery of money owed to him/her by the debtor. The purpose of provisional sentence proceedings is to enable the plaintiff to receive prompt payment without having to wait for the final determination of the dispute between the parties.
As already mentioned previously a liquid document may be generally defined as a written instrument signed by the defendant or his agent evidencing an unconditional acknowledgement of indebtedness in a fixed sum of money. A more detailed definition defines it as a document in which the debtor acknowledges, over his signature or that of a duly authorise agent or is in law regarded as having acknowledged without his signature being actually affixed to the document, his indebtedness in a fixed and determinate sum of money.
Examples of liquid documents are cheques, promissory notes, mortgage bonds, acknowledgement of debt and deeds of sale. A letter containing an unambiguous promise to pay a fixed monthly amount was held to be a liquid document but the minutes of a company’s directors acknowledging the company’s indebtedness was held not to be a liquid document. A liquid document sounds in money and if the obligation to which the defendant may have bound him/herself is something other than money the claim is illiquid and provisional sentence will be refused. The amount of the debt must also be fixed and definite and apparent on the face of the document. If extrinsic evidence is necessary to prove or ascertain the amount that is payable the document is not a liquid document. Different considerations may apply to adjunct claims.
For more go to Notes on action (trial) proceedings
