TaxTMI 
TaxTMI 
2017 (1) TMI 1858
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....ainst 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 or all business activities the Infringing Trade Mark....
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.... 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 the appearance of the defendant and, therefore, stands on a different footing altog....
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.... 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 documentary evidence, the applicant must,-- (i) include such documentary evidence in its application, and (ii) identify the relevant content of such documentary evidence on which the applicant relies....
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....he 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; (d) dismissing part of the claim and a judgment on part of the claim that is not dismissed; (e) striking out the pleadings (whether in whole or in part); or (f) further directions to proceed for case management under Order XV-A. (2) Where the Court makes any of the orders as set forth in sub-rule (1) (a) to (f), the Court shall record its reasons for making such order. 7. Conditional or....
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.... 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 observation made by the learned Single Judge with regard to the appellants/plaintiffs not making out even a prima facie case and that suits which are doomed to fail and of which there is no chance of any success ought to be dismissed in limine does not take into account the averments contained in the plaint. It was contended that whether a plaintiff makes out a prima facie case or not, may be a consideration for the grant or non-grant of an interim order, but, insofar as the suit is concerned, it....
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....t 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 respondent that where the legislature intended to prohibit or put a restriction or limitation on issuance of summary judgment, it had done so by specifically prohibiting it such as in Rule 2 of Order XIIIA, where it is provided that no application for summary judgment may be made by such applicant after the Court has framed issues in the suit. It was submitted that in contradistinction to Rule 2, the legislature, in its wisdom, did not think it proper to out any limitation on the ability of the Court to issu....
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....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 V Rule 1 CPC stipulates that when a suit has been 'duly instituted', a summons 'may' be issued to the defendant to appear and answer the claim and to file the written statement of his defence etc. It is clear that the provisions of Order V Rule 1(1) reflect the substantive provision contained in Section 27 CPC. 17. From the above and particularly upon examining the provisions of Section 27 and Order V Rule 1(1) CPC, it is evident that when a suit is regarded as having been 'duly instituted', a summons may....
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.... 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 compelling reason why the claim should not be disposed of before recording of oral evidence. But, in our view, this power can only be exercised upon an application at any date only after summons have been served on the defendant and not after the Court has framed issues in the suit. In other words, Order XIIIA Rule 2 makes a clear stipulation with regard to the stage for application for summary judgment. The window for summary judgment is after the service of summons on the defendant and prior to the Court framing issu....
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.... 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 the evidence or material on record, if any, the Court should not proceed to summary judgment. 23. From the provisions laid out in Order XIIIA, it is evident that the proceedings before Court are adversarial in nature and not inquisitorial. It follows, therefore, that summary judgment under Order XIIIA cannot be rendered in the absence of an adversary and merely upon the inquisition by the Court. The Court is never an adversary in a dispute between parties. Unfortunately, the learned Single Judge has not considered the p....
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.... 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 of rooms which were launched in the plaintiffs' hotel in May and June, 2009 continued till now." (underlining added) 26. From the paragraphs extracted above, we find that the learned Single Judge has based his conclusions on, inter alia, on what he could "recollect" about a certain state of facts. Moreover, he has used the expression that it is only for 'this reason' that he entertained doubts as to the maintainability of the case made out by the plaintiffs. We are of the view that the learned Single Judge could not himself become a w....