TaxTMI 
TaxTMI 
2017 (1) TMI 1858
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....lants/plaintiffs had instituted the suit against the respondents/defendants for permanent injunction restraining infringement of trade mark, passing off, dilution of goodwill, unfair competition, rendition of accounts etc.. Essentially, the claim of the appellants/plaintiffs was that the respondents were using the trade mark 'PRIVEE' which was identical to or deceptively similar to the trade mark of the plaintiffs - MBD PRIVE and PRIVE. The plaintiffs are, inter alia, in the hotel business. 3. The appellants/plaintiffs had filed the said suit as a commercial suit because the damages claimed by them were to the extent of Rs 1 crore which satisfied the definition of 'specified value' as contained in Section 2(1)(i) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter referred to as 'the Commercial Courts Act'). The plaint contained the following prayers:- "(i) Decree for permanent injunction restraining the Defendants, its directors, partners or proprietors as the case may be, its assigns in business, franchisees, store owners, licencees, distributors, affiliates, subsidiaries, and agents from using for any ....
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....s to the defendants/respondents, dismissed the suit, after going into the merits of the claims raised by the plaintiffs. The suit was dismissed in limine by the learned Single Judge by apparently following a decision of a Division Bench of this Court in Dr Zubair Ul Abidin v. Sameena Abidin @ sameena Khan: 214 (2014) DLT 240 (DB). It was observed by the learned Single Judge that suits which are doomed to fail and of which there is no chance of success should be dismissed at whatever stage the court finds it to be so. Another decision relied upon by the learned Single Judge was of an earlier Single Bench in the case of Camlin Private Limited v. National Pencil Industries: (1986) VI PTC 1. At the outset, we may state that the reliance by the learned Single Judge on these judgments was misplaced. The case of Dr Zubair Ul Abidin (supra) was one under Order VII Rule 11 CPC and in that case also both parties were represented and the case was heard by the learned Single Judge after issuance of summons. The decision in the case of Camlin Private Limited (supra) is of a learned Single Judge of this Court and does not, in any event, bind the Division Bench. That case, too, was decided after ....
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....dgment at any time after summons has been served on the defendant: Provided that, no application for summary judgment may be made by such applicant after the Court has framed the issues in respect of the suit. 3. Grounds for summary judgment.- The Court may give a summary judgment against a plaintiff or defendant on a claim if it considers that-- (a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and (b) there is no other compelling reason why the claim should not be disposed of before recording of oral evidence. 4. Procedure. - (1) An application for summary judgment to a Court shall, in addition to any other matters the applicant may deem relevant, include the matters set forth in sub-clauses (a) to (f) mentioned hereunder:- (a) the application must contain a statement that it is an application for summary judgment made under this Order; (b) the application must precisely disclose all material facts and identify the point of law, if any; (c) in the event the applicant seeks to rely upon any d....
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.... (a) file such documentary evidence; and (b) serve copies of such documentary evidence on every other party to the application at least fifteen days prior to the date of the hearing. (2) Notwithstanding anything in this Order, if the applicant for summary judgment wishes to rely on documentary evidence in reply to the defendant's documentary evidence, the applicant must:- (a) file such documentary evidence in reply; and (b) serve a copy of such documentary evidence on the respondent at least five days prior to the date of the hearing. (3) Notwithstanding anything to the contrary, sub-rules (1) and (2) shall not require documentary evidence to be:- (a) filed if such documentary evidence has already been filed; or (b) served on a party on whom it has already been served. 6. Orders that may be made by Court.- (1) On an application made under this Order, the Court may make such orders that it may deem fit in its discretion including the following:- (a) judgment on the claim; (b) conditional order in accordance with Rule 7 mentioned hereunder; (c) dismissing the application; ....
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....ary judgment cannot be delivered by the Court. It was also contended that in view of Rule 2 of Order XIIIA CPC, not only was an application for summary judgment necessary, but such application could only be made at any time after summons had been served on the defendant. It was, therefore, contended that the impugned judgment was liable to be set aside on, inter alia, the ground that it had been delivered at a stage prior to the issuance of summons and without there being any application for summary judgment. Rules 4(2) and 4(3) of Order XIIIA CPC were also referred to by the learned counsel for the appellants to submit that in a case where hearing for summary judgment is fixed, the respondent must be given notice of the hearing and the respondent may file a reply to the application for summary judgment. According to the learned counsel for the appellants, this provision makes it clear that apart from an application being made for summary judgment, the Court cannot make a summary judgment without the other side being heard or in other words there cannot be a summary dismissal of a suit under Order XIII A without the other side being present. 9. It was also contended that the obs....
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....ummary judgment against the plaintiffs in view of the provisions of Rule 3 of Order XIIIA CPC. It was submitted that the power of a court to pass a summary judgment in a commercial matter is quite distinct from the procedure to be adopted/invoked by parties to the suit to seek a summary judgment. It was contended that the provisions of Order XIIIA Rule 3 of the CPC vest the court with wide powers and the mechanism for invoking such powers which have been provided to a party under Rule 2 could not be treated as a condition precedent to the exercise of that power. It was also submitted that a provision has to be interpreted in such a manner that every procedure is to be regarded as permitted to the Court unless it is expressly prohibited and not the other way round that every procedure is prohibited unless expressly permitted. Reliance was placed on the Supreme Court decision in the case of Rajendra Prasad Gupta v. Prakash Chandra Mishra and Others: (2011) 2 SCC 2 SCC 705. 11. Reliance was also placed on a Full Bench decision of the Allahabad High Court in Narsingh Das v. Mangal Dubey: ILR 5 All 163 (FB) (1882). 12. It was contended by the learned counsel for the said responden....
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....deal with certain provisions of the CPC. Section 9 of the CPC makes it clear that Courts, subject to the other provisions of the CPC, shall have jurisdiction to try all suits of a civil nature except those suits whose cognizance is either expressly or impliedly barred. Section 26 CPC deals with the institution of suits and sub-Section (1) thereof stipulates that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Furthermore, in every plaint, the facts shall be proved by affidavit as provided in sub-Section (2) of Section 26. With regard to commercial disputes of a specified value, a proviso has also been added which stipulates that such affidavit has to be in the form and manner as prescribed under Order VI Rule 15 A. 15. Section 27 CPC deals with the issuance of summons to defendants. It stipulates that where a suit has been 'duly instituted', a summons may be issued to the defendant to appear and answer the claim and may be served in the manner prescribed etc. Section 33 of the CPC stipulates that the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow. 16. Order....
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.... Order V Rule 1 sub-rule (1) read with Section 27 CPC. 19. We may also point out that there is a clear distinction between 'return of a plaint', 'rejection of a plaint' and 'dismissal of a suit'. These three concepts have different consequences. A dismissal of a suit would necessarily result in a subsequent suit being barred by the principles of res judicata, whereas this would not be the case involving 'return of a plaint' or 'rejection of a plaint'. What the learned Single Judge has done is to have dismissed the suit of the appellants/plaintiffs at the admission stage itself without issuance of summons and this, we are afraid, is contrary to the provisions of the statute. 20. Apart from this, we are of the view that the learned Single Judge has gone wrong in invoking the provisions of Order XIIIA CPC for rendering a summary judgment. It is true that Rule 3 of Order XIIIA CPC empowers the Court to give a summary judgment against a plaintiff or defendant on a claim if it considers that - (a) the plaintiff has no real prospect of succeeding on the claim or the defendant has no real prospect of successfully defending the claim, as the case may be; and (b) there is no other comp....
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....e of the date fixed for the hearing and the claim that is proposed to be decided by the Court at such hearing. Rule 4(3) of Order XIIIA makes provision which enables the respondents to file a reply within the stipulated time addressing the matters set forth in clauses (a) to (f) of the said sub-rule. In particular, the reply of the respondent ought to precisely disclose all the material facts and identify the point of law, if any, and the reasons why the relief sought by the applicant for summary judgment should not be granted. Just as in the case of the applicant, the respondent is also given the opportunity to rely upon documentary evidence in its reply which must be included in the reply and the relevant content identified. The respondent's reply is also required to give reason as to why there are real prospects of succeeding on the claim or defending the claim, as the case may be. Importantly, the reply must also concisely state the issues that should be framed for trial and that it must identify what further evidence would be brought on record at trial that could not be brought on record at the stage of summary judgment. The reply should also state as to why in the light of th....
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.... 11. Not only so, a 'Google' search of the word "PRIVE" throws up use of the said word in "CLUB PRIVE" at hotel Dusit Devarana, New Delhi and "PRIVEE" at Shangri-La's Eros Hotel, New Delhi and "MBD PRIVE" appears much much later, even after hotel "PICASSO PRIVE" at A-14, Naraina Vihar, New Delhi and a host of other hotels providing services or having restaurant or spa with the name "PRIVE". 12. The plaintiffs, along with their documents at page 34 have filed the download from Google website of the search result "MBD PRIVE" and the counsel for the plaintiffs argued that the plaintiffs are prior user of the word "PRIVE" with the defendants having commenced used thereof only in January, 2016. In support thereof, the counsel for the plaintiff drew attention to the news reports of May, June and July, 2009 of introduction of the new room category "PRIVE" in the Radisson Blue MBD Hotel. However not only does a Google search again so disclose but the plaintiffs also along with their documents at page 76 have filed news reports of 18th May, 2016 of launch of "all new MBD PRIVE COLLECTION" at the plaintiffs' hotels. There is nothing to show that the "PRIVE" category ....