This article is written by Priyanka Kumar. The article elucidates the provision of Order XIII-A in the Indian Code of Civil Procedure, 1908, inserted by way of the amendment brought out by the Commercial Courts Act, 2015. The article also provides an overview of judgements on the subject matter by various Indian High Courts. 

This article has been published by Shashwat Kaushik.

Table of Contents

Introduction 

Ideally, civil suits are required to be decided quickly; however, due to the way in which Indian courts function, commercial suits have a tendency to go on for years before they can be finally decided. Under the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”), unlike any other suit, the stages of adjudicating a commercial suit involve the submission of pleadings and disclosure of facts and documents, framing of issues, the conduct of a trial, i.e., leading evidence, and then the final arguments. The most time-consuming of all could be the stage of leading evidence, wherein the respective witnesses of both parties, the plaintiff as well as the defendant, take the stand and, on oath, answer questions of examination and cross-examination. Leading evidence in a suit becomes pertinent in order to get certain admissions and/or denials on a point of fact, which may favour a party in proving their case. To summarise, completing the entire process of adjudication of a commercial suit can take years, despite sometimes having clear evidence in favour of one party. 

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In an attempt to remedy the prolonged nature of commercial suits, the introduction of “summary judgement” was brought out in the year 2015, whereby parties to a commercial suit became entitled to make an application for disposing off the suit summarily, or briefly, without leading oral evidence, by substantiating their claim for it with mere appropriate documentary evidence. This article explores the provision pertaining to summary judgement introduced under Order XIII-A of the CPC. By traversing into the various aspects related to summary judgement and the judgements passed by various courts on the subject, the author, through this article, is attempting to give a clear and exhaustive understanding of the practice of summary judgements in India. 

Introduction of summary judgement under the Commercial Courts Act, 2015

In 2015, the 20th Law Commission was set up to prepare its report and give recommendations. As an outcome of these recommendations, the Commercial Courts Act, 2015, was enacted, which sought to amend the CPC and introduce the provision of summary judgement, especially for creating a streamlined procedure for the disposal of commercial suits. The recommendations made in the 253rd Law Commission Report were based on a study between the courts of Singapore, Ireland, France, Kenya, the United Kingdom (UK) and the United States of America (USA). It was felt rather prudent to adopt the functioning of the courts in the UK, USA and Singapore. Based on this, the amendments in the CPC were recommended, which came to be finalised as present day Order XIII-A. 

First and foremost, the amendment sought to set up commercial courts and fast-track procedures. It was deliberated that a streamlined procedure for enabling the disposal of commercial suits in a time-bound manner is essentially required. The intention behind the said amendment was clear, to enhance efficiency in the disposal of commercial cases, as provided clearly in the ‘Statement of Object and Reasons of the Commercial Courts Act, 2015’. Along with the inception of summary judgement, this amendment also introduced the provision for case management hearings under Order XV-A to accelerate the common agenda. 

Provision of summary judgement under Order XIII-A CPC

The provision of summary judgement under Order XIII-A of the CPC stands on various limbs that bring out the scope and circumstances under which a party can make an application for disposal of a commercial suit summarily and the manner in which the court can allow it. When one talks about the grant of summary judgement, all the rules provided under Order XIII-A have to be seen together. These are precisely categorised as follows:

Scope of Order XIII-A CPC

Rule 1 of Order XIII-A sets out that the court may decide a ‘claim’ relating to any commercial dispute without leading oral evidence for the same. The most important and primary aspect that this Rule lays down is the scope and ambit of the term ‘claim’. It is defined explicitly under this Rule that ‘claim’ shall include a part of a claim, or any particular question on which the claim depends, whether in part or in whole, or a counterclaim, as the case may be. Thus, according to this Rule, a party making an application for summary judgement can do so with respect to an entire claim or any part thereof. Additionally, a defendant participating in a commercial suit and making a counterclaim, can also make an application for disposal of the same summarily under this Rule. Largely, the intention of the legislature has been to include every sort of claim involved in a commercial suit within this Rule. 

Rule 1 further postulates a negative covenant restricting the suits filed under the category of ‘summary suits’ to be covered under the ambit of Order XIII-A. The objective behind this restriction appears to be that summary suits are already summary in nature and for the very direct purpose of recovering an admitted amount from the defendant. It comes from a legislative intent that summary judgement under Order XIII-A of the CPC be introduced to provide a remedy independent, separate, and distinct from judgement on admissions and summary suits under Order XXXVII of the CPC. However, when a suit filed as a summary suit gets converted into a commercial suit, then a party can very well utilise the provision under Order XIII-A and apply for summary disposal, provided all other conditions under the provision are met. 

Stages of making the application 

After having clarity on the kind of claims that can be determined by way of summary judgement, as per Rule 1, Rule 2 enunciates the stage at which a party can make an application for seeking summary judgement. As stated earlier, the stages of a suit involve pleadings, framing of issues, leading evidence and final arguments. Rule 2 of this provision states that an application for summary judgement can be made at any point in time after the summons for appearing in court has been served on the defendant, and at the latest before the stage of ‘framing of issues’. 

This particular rule comprises two parts. The first part speaks of the entitlement to make an application for summary judgement, whereas the second part provides the time limit till such an application can be made. The requirement of serving the summons on the defendant has been retained since it is only fair that both parties to the dispute are aware of the existence of a suit between them. Without the summons being served on the defendant, it is the plaintiff alone who is aware of the suit being filed in court. Such a scenario does not qualify for fairness and equity. Further, when the provision says that the application can be made no later than the stage of framing of issues, it clarifies that the stage of framing of issues finalises the questions for determination before the court in the respective suit. Once this is done and the issues have been framed and taken note of by the court, the case becomes a subject of trial by the court. The evidence that a party would have otherwise wished to produce in a summary judgement application can then be produced as evidence at the trial stage. 

Grounds for granting a summary judgement 

The most important aspect to know before making an application for summary judgement is whether there are any grounds for a party to make such an application. To find the grounds for the grant of a summary judgement, one has to look at Rule 3 of Order XIII-A. The said Rule states two grounds on the basis of which the court may give a summary judgement against the plaintiff or defendant on a claim so made, which are as follows-

A.  First, that there is no real prospect for the plaintiff or defendant to succeed in the claim;

B.  Second, there is no other compelling reason why the claim should not be disposed of before the recording of oral evidence. 

Thus, it is clear that the application for summary judgement can be made either by the plaintiff or by the defendant. The party making the application, however, should provide the essential facts, the point of law, and the appropriate documentary evidence, if any, as proof and word the application in a manner to show that there is no real prospect of the other party succeeding in the claim if the case were to go to trial. Additionally, the applicant is also required to confirm that, with the help of the evidence so produced, there is no compelling reason as to why the claim should not be disposed of before taking the case to trial and recording oral evidence. It is important here to note that the two grounds stated in Rule 3 are mandatory and cannot be chosen individually as one over the other. 

This careful and limited wording of the grounds provided in Rule 3, Order XIII-A of the Indian CPC is an adoption of similarly placed provisions under various jurisdictions. An overview of the perspective adopted by international courts can be looked at to better understand the exact connotation of the phrase “no real prospect.” The Court of Appeals (Civil Division), based in the United Kingdom, in the case of Terence Paul Swain vs. T Hillman (Male) and T C Gay, (1999), took to distinguish between “real” and “fanciful” prospects of success, holding that, while considering the words “no real prospect,”  the courts should look to see the outcome at the trial, and if the case is so weak that it has no actual reasonable prospect of success, then it should be stopped right there before great expenses are incurred.  On the other hand, the Ontario Court, following the Ontario Rules of Civil Procedure, prescribes that summary judgement may be granted if the court is satisfied that there is no “genuine issue” requiring a trial with respect to the claim or defence. The Canadian Courts, through the case of Robert Hryniak vs. Fred Mauldin, (2014) elaborated on the phrase “real prospect of successfully defending the claim” to mean when the court is able to reach a “fair and just determination” on the merits of the application for summary judgement. Since the provision for summary judgement is fairly new for the Indian system, the international laws and precedents cited above play an important role in assisting Indian courts in deciding summary judgement cases. 

Procedure for granting a summary judgement 

In addition to the existence of the required grounds for allowing a summary judgement, an application under Order XIII-A must include a few criteria as provided under R. 4 of Order XIII-A. In the absence of even one of these criteria, the application will suffer from technical objections and will not be entertained by the courts. These criteria are briefly listed below:

Statement of the application being one for summary judgement

First and foremost, the application filed under Order XIII-A must explicitly contain a statement that the same has been filed under Order XIII-A of the CPC, 1908. It is pertinent to understand that the reliefs sought in a summary judgement application may speak for dismissal of the suit. In such a scenario, it is likely that the application may be confused with any other application filed in a suit. In order for it to give a clear indication that the objective of filing the application is to consider the case on merit and dismiss it summarily without leading oral evidence, it is essential that the application submitted to the court expressly state so at the beginning of the application itself. 

Disclosure of all material facts and law

All the prevailing circumstances that led to the applicant filing the application for summary judgement must then be disclosed in the application. It is likely that the circumstances leading to the Order XIII-A application may be slightly different or more specific than the ones disclosed in the complaint. In addition to this, the application must also state the point of law, if any, that may be pertinent to show how the applicant clearly deserves the order in his favour. 

In the event that the applicant seeks to rely upon any documentary evidence, those specific documents must be included in the application and annexed to it and their exact relevance must be identified in the application. By doing so, it becomes easier to showcase the case of the applicant. 

Disclosure of ‘no real prospect of success’

A very important factor in an application for summary judgement is the disclosure of the very reason, which shows that there is actually no real prospect of the respondent succeeding in the case. This disclosure must be clearly and specifically worded, as it forms the very basis of the claim made in the application. 

Disclosure of the reliefs sought

Like every plaint and application, that contains the reliefs sought by the plaintiff/ applicant, it is only imperative for the applicant to state the reliefs the applicant is seeking through the application for summary judgement. In other words, while it is obvious that the primary relief is to dismiss and dispose of the suit, there may also be additional reliefs sought in the nature of claiming monetary damages, injunctions, etc. that cannot be granted until and unless prayed for by the applicant. 

In addition to the criteria listed above, Rule 4 of Order XIII-A also provides a requirement that after the said application is filed before the court and before it comes up for hearing, the respondent has to be given at least 30 days notice of hearing of the case by the applicant, along with the information of the claim proposed to be decided by the court at such hearing. This Rule is based on the principle of fairness and equity, giving a chance to both parties to present their respective cases, before the court can pass an order on them. In this period of 30 days, the respondent gets an opportunity to file a reply, thereby disclosing the material facts and point of law, if any, and stating the reasons as to why the application for summary judgement should not be allowed. Similar to the opportunity given to the applicant, the respondent under this Rule also gets the opportunity to rely upon documentary evidence, if need be, and include the same in their reply. In a direct attempt to oppose the application, the reply of the respondent must also specify the reasons as to why there are real prospects of the respondent succeeding on the claim or defending on the claim (as the case may be). The reply of the respondent must also state the issues the respondent would rather propose to be framed for the case in the trial, the evidence it deems fit to produce in the trial that cannot be recorded at the stage of summary judgement and the reasons why, in light of the evidence or material on record, the court should disallow the summary judgement. 

Rule 4 of Order XIII-A is basically a portrayal of the strict procedure laid down for the conduct of a summary judgement proceeding. Keeping the procedure very crisp and time-bound is the underlying principle of this Rule. In light of such an exhaustive and self-explanatory provision, it becomes rather easy for any party to file an application for summary judgement. 

Required evidence for hearing a summary judgement case

As per Rule 5 of Order XIII-A, when a respondent files its reply to the application for summary judgement and provides certain additional documentary evidence to support its defence, there are certain requirements that must be followed. Firstly, when relying on any additional documentary evidence, the same must be filed with the reply, and a copy of the same must be served upon every other party to the application at least 15 days prior to the date of hearing of the application, as set by the court. Similarly, if the applicant, in response, wishes to rely on some documentary evidence, the applicant must also file it and serve a copy of it to the respondent atleast 5 days in advance from the date of hearing of the case.  

In a nutshell, the rules pertaining to evidence in summary judgement under Order XIII-A make it coherent that if a new piece of documentary evidence is to be relied upon by either of the parties, the same must be filed before the court and served on the other party in advance, before the date of the hearing, but at the same time, if the same has been filed already and served, it need not be so repeated. 

Kind of orders the court can pass 

As seen so far, Rule 1 to Rule 5 of Order XIII-A provided for the rules and requirements to be put forth by the parties involved in a summary judgement application. As against these, Rules 6 and 7 of Order XIII-A of the CPC list the kinds of orders the court can pass in an application for summary judgement. These orders can be conditional or unconditional in nature, as stated below: 

Conditional

Where the court finds that a party to the suit may succeed in it, but the probability of it seems next to impossible, the court may grant the summary judgement and make an order that may be conditional with certain specific terms and conditions. It is then for such conditional order to become unconditional upon finally deciding the case on its merits. The court shall then also communicate to the party against whom such a condition has been imposed in the consequence of failure to comply with such conditional order.

In case, the court makes a conditional order, it may do so under four conditions/ requirements, namely-

  • With the requirement of either of the parties to deposit a certain sum of money in court;
  • With the requirement of either of the parties to take a specific step in relation to their case, claim or defence, as the case may be;
  • With a requirement to provide to the court, an amount towards security or a person as surety for restitution of costs;
  • Any such other condition, as the court may deem fit in its discretion. 

Unconditional 

Where the court finds absolute merit in the application made under Order XIII-A, the court may grant an unconditional order, allowing the summary judgement and thereby dismissing the commercial suit. 

Power to impose costs 

Rule 8, being the last rule under Order XIII-A of the CPC, specifies the power of the courts to impose costs upon the parties, in addition to the one stated under Rule 7. According to Rule 8, the court may make an order for payment of costs to a party, as per the provisions of Sections 35 and 35A of the CPC. Sections 35 and 35A of the Code of Civil Procedure bestow a discretionary power upon the courts to impose costs on any party. According to Section 35A, “costs” shall include reasonable costs, including, the fees and expenses of the witnesses, legal fees and expenses, and any other expenses incurred in the proceedings. Thus, even if a party to the summary judgement proceedings does not specifically pray for costs, it can still be granted by the court while passing the order, if the court deems fit. The inclusion of this rule in Order XIII-A is a rather disciplinary one, to discourage bogus applications and suits from being initiated. 

Summary judgement and ordinary judgement under CPC 

Under the CPC, the provision elaborating on the concept of “judgement and decree” passed in a suit is Order XX. Normally, a judgement in a suit is passed after the court goes through the pleadings, evidence, arguments, points of facts and law. It is the culmination of all material produced by the parties in a particular case. A judgement, ideally, contains the facts, the issues raised, the judge’s findings on each issue, the reasoning behind each finding (ratio decidendi) and the reliefs granted. What thereafter follows from the judgement is a decree, which is the court’s statement on the monetary liability imposed on the losing party. Both of these are collectively provided under Order XX. Every suit coming under the purview of the CPC, goes through the procedural hurdles described under the CPC and finally concludes with a judgement passed under Order XX. A judgement forms the most important part of a suit, since it summarises the entire case of the parties, as put before the court, and declares the Judge’s verdict along with reasons supporting such a verdict. It is on the basis of this judgement and the reasoning given therein that a party, not satisfied with the judgement, may approach a higher court in appeal. 

When comparing summary judgement under Order XIII-A to the traditional provision of judgement under Order XX, it is interesting to note that there is a slight difference in the manner of framing the judgement in both cases. That is to say, while the traditional manner of framing a judgement entails the consideration of facts, framing of issues, and thereafter the judgement with adequate reasoning, a summary judgement is limited to the facts, the evidence supporting the cause of summary judgement and thereafter the final verdict. The element of framing issues and answering each issue with a reasoning is missing in a summary judgement. This is so, since a summary judgement application can be made and accepted only before the stage of framing of issues, therefore, the question of listing the issues does not arise. Another point of difference between the two provisions of judgement is that, as seen above, the application for summary judgement can be made for the entire claim or any part of it, however, the part for which the application is made, if accepted by the court, will be entirely dismissed or allowed, subject to the accurate evidence provided. On the other hand, in the case of a judgement provided under Order XX, the judgement, being the final conclusion of a case, considers the case entirely and it can result in the case being allowed or dismissed either in part or entirely. Thus, while summary judgement can be for a part of the claim, judgement under Order XX considers the entire case. 

Interestingly, in both cases, judgements are required to be in detail because the reasoning behind the verdict must be spelt out clearly; however, what essentially differentiates the two is the evidence that leads to the judgement and the stage at which such evidence is provided. If the evidence is accurate to pursue a court towards passing a judgement and it is produced before the stage of framing of issues, by way of an application, it qualifies for a summary judgement under Order XIII-A, whereas, any evidence, however accurate, provided after the framing of issues, is subject to trial and thereby falling under the judgement provision as provided under Order XX. 

Comparing Order XIII-A to other summary procedures

Civil procedure

Before the introduction of Order XIII-A, the only other summary procedure that the parties coming to court could resort to was “summary suits” under Order XXXVII of the CPC. Order XXXVII was applicable only in cases where the suit was initiated against an admitted liability. To some extent, an application made under Order VIII Rule 11, for rejection of the plaint on technical objections was also looked at as a summary procedure whereby an irrelevant claim could be tossed off before the trial stage. 

Differentiating Order XIII-A from Order XXXVII

Summary suit or summary procedure under Order XXXVII was the first of its kind to be introduced under the CPC, which provided a way for the plaintiffs to avail themselves of a speedy trial and disposal of the case. The goal of this provision was to curtail prolonged litigation and give speedy judgements, in order to make the litigation process less expensive for the complainants. 

Under the CPC, a summary suit under Order XXXVII begins with the plaintiff filing a suit in the appropriate civil court. In a summary suit, it is essential to make a specific assertion that the suit is being filed in accordance with Order XXXVII, right under the suit number itself. The plaintiff is thereafter required to serve a copy of the complaint and summons (as per the format provided under CPC) to the defendant. Within ten days of receiving the complaint and summons, the defendant is required to appear before the court and file his defence, which is called as “the Application for leave to defend”. In this application, the defendant is required to state all the reasons favouring him, stating that the case has triable issues and the defendant should be allowed to produce his defence. If the defendant does not make any such application, or his application gets rejected by the court, then the court can entitle the plaintiff to judgement immediately. However, if the court is satisfied with the application of the defendant that there exists a prima facie case for the defendant, then the court can allow the defendant to provide his evidence and the summary judgement can be converted into an ordinary suit under Order VI of the CPC.  If, in its defense, the defendant makes any admission, then the application of the defendant gets cancelled to that extent only. 

While this summary procedure is available and used widely, it is also pertinent to note that it is not always allowed. In the landmark judgement of B.L. Kashyap and Sons Limited vs. JMS Steels and Power Corporation and Anr, (2022), the Apex Court held that granting of leave to defend is the ordinary rule and denial of leave to defend is an exception. In other words, when the defendant makes an application for leave to defend, the court usually allows it and gives a chance to the defendant to lead evidence, whereas, it is only in rare scenarios that one gets to witness the rejection of leave to defend and the suit proceeding on the evidence of the plaintiff alone. Thus, despite the summary nature of the suit, the principle of equity is given more weightage. In the said case, the Hon’ble Supreme Court laid down four principles to be follows, when allowing the application for leave to defend, which are as follows:

  • If the defendant succeeds in satisfying the court that he has substantial defence, he is entitled to unconditional leave to defend;
  • Where the defendant raises triable issues indicating that he has a bona fide case, he is entitled to unconditional leave to defend;
  •  Where the defendant raises triable issues but the court is doubtful of the actual intent of the defendant, then the court can allow speedy disposal of the commercial causes and at the same time not shut out tribale issues by passing stringent orders;
  • Where the defendant raises a defense which appears to be plausible but improbable, he can be entitled to conditional leave to defend, subject to payment of costs in the court or furnishing security or both. 

Being summary procedures in nature, both Order XIII-A and Order XXXVII assure speedy disposal of the case. In both cases, the plaintiff and the applicant, respectively, have the burden to provide strong evidence which will prima facie convince the court that the suit should be allowed in their favour. In both procedures, the plaint/ application is required to be served to the defendant/ respondent in advance and if the court is not satisfied with the defense of the defendant, it can immediately proceed with passing the judgement, without going through the tedious process of trial. 

When distinguishing summary suits under Order XXXVII from summary judgement under Order XIII-A, it can be clearly understood that summary suits are initiated by those complainants who have specific monetary recovery claims, or have any specific claims against the defendant who has not been complying with his contractual obligations, specifically being “commercial” in nature. The burden lies on the plaintiff to establish his case. In contravention to this, summary judgement established under Order XIII-A of the CPC is a procedure which can come to light only upon making an application specifically to that effect and can be initiated in support of the main suit to show that the claim in the suit (or any part thereof) can be allowed solely in favour of the applicant, since the respondent has no real prospect of succeeding. While summary suit is a procedure to be adopted at the beginning of filing a suit, summary judgement can be filed as an application in any suit, any time before the stage of framing of issues. Thus, despite being summary procedures in nature, the circumstances under which both procedures can be opted for are completely different.  

Differentiating Order XIII-A from Order VII Rule 11

In practicality, an application for summary judgement under Order XIII-A may be made after filing the suit, either by the plaintiff or the defendant. It is based on a clear finding of fact seen from the pleadings of the case or from subsequent evidence filed. When, due to a subsequent development, there is a change in the factual position of the case, a party may apply for disposal of the case. It is here that the party can opt for either an Order VII Rule 11 application or an Order XIII-A application. 

As stated above, prior to Order XIII-A of CPC, one of the easier remedies available to a party, specifically the defendant in the suit, was to make an application under Order VII Rule 11 of CPC for rejection of the plaint for the categories that fell under the provisions of Order VII Rule 11. The said provision is applied even today, however, it is a remedy available only to the defendant in the suit. With the introduction of Order XIII-A, there may be a dilemma as to what is the difference between the two provisions and the outcome they may hold. To clarify this, while Order XIII-A is introduced to cut short a meritless claim made in a commercial suit, Order VII Rule 11 is applicable to all suits and not just commercial suits, unlike Order XIII-A. Additionally, the criteria for an application under Order VII Rule 11 to be successful is the presence of technical objections in the suit, such as the plaint not disclosing a cause of action, undervaluation of the claim, insufficient payment of stamp duty or the suit being barred by law. The outcome of an Order VII Rule 11 application is rejection of the plaint, meaning it can be filed again once the technical objections are rectified. However, in order for a party to succeed in an application under Order XIII-A, the documentary evidence provided by the applicant is to be looked into and the outcome of such an application is dismissal of the suit, on merit, such that, it is barred from being filed again. The same was reiterated in the judgement of Bright Enterprises (P) Ltd. vs. MJ Bizcraft LLP (2017), wherein the Ld. Judges, while making a distinction between ‘return of plaint’, ‘rejection of a plaint’ and ‘dismissal of a suit’ held that these three concepts have different consequences; while 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’. 

Criminal procedure

Much like the civil procedure, in the criminal front too, there exists a summary procedure to dispose of criminal trials at an earlier stage, which are expressly provided under Section 260 to Section 265 of the Code of Criminal Procedure, 1973. Summary procedures are applied in less serious offences carrying a punishment of maximum two-years of imprisonment or fine or both. If found guilty, the criminal can be punished for a maximum of three months imprisonment. In the case of a criminal summary trial,  judgement does not contain the charges against the accused in detail, apart from the accusation put on him. The Judge is likely to record the evidence and pass the judgement, in brief, along with his reasons supporting the judgement. The objective behind summary trials as laid down in the landmark judgement of State of Bihar vs. Deokaran Nenshi and Others (1972) is that the trial must be speedy and inexpensive for the accused and it shall not be turned into mini-trials by allowing unnecessary adjournment and lengthy cross-examination. 

To state the obvious point of difference, while summary judgements pertain to civil commercial suits, criminal summary procedures are meant for summary disposal of criminal trials. Because of this basic difference in the nature of disputes, one cannot compare summary procedure under Order XIII-A to criminal summary procedures but can definitely comprehend the intent of the legislature to have summary procedures introduced for civil as well as criminal cases. 

Relevant case laws 

Marco Polo Restaurant (P) Ltd. vs. Amit Tiwari (2017)

Facts of the case

A suit was initiated by the Respondent, Amit Tiwari, for recovery of possession under the Transfer of Property Act, 1882 and claiming the arrears of rent over Rs. 1 crore. 

A property situated at premise no. 24, Park Street, Kolkata, belonged to one Magma Leasing Ltd. Magma leased out the property to twenty private trusts by way of twenty registered lease deeds for 99 years. Subsequently, the twenty trusts, by way of a single unregistered document, inducted the defendant as a tenant in respect of a distinct portion of 136.5 sq. ft., each aggregating to 2731 sq. ft., i.e., the entire area of the property. 

By way of a notice to quit, the plaintiffs had demanded that the suit premises be vacated by the defendant and handed over the plaintiff. The defendant neither vacated the place nor paid the rent for it and ultimately, the arrears of rent reached over Rs. 1 crore. This led to the plaintiff filing the present suit for the eviction of the defendant. In this suit, the plaintiff also made an application under Order. XIII-A of CPC, which was allowed by the Ld. Single Judge, ordering that the defendant had no defence against the plaint case. However, in doing so, no justification was given by the Judge, except on the merits of the case. In an appeal before the Division Bench, the order of the Single Judge was set aside on the ground that the issue involved in the case was a triable one and needed to be decided at the time of trial, and therefore the Defendant was given an opportunity to give his defence. 

Issues 

  • Whether the decree passed by the Ld. Single Judge under Order XIII-A of CPC in evicting the tenant was sustainable or not?
  • Whether the appellant/defendant had a substantial defence for an arguable case in case of trial being conducted in the suit?

Judgement

The primary question before the Calcutta High Court was whether the Ld. Judge was right in dismissing the suit without categorically holding that the defendant had no defence and therefore no real prospect of succeeding in the case. The impugned judgement here did not clearly state that the defendant had no good defence, and yet, the Ld. Judge decided the case on merits and on the basis of preponderance of probability. In order to decide the case on merit, the Ld. Judge was ideally required to go into the evidence of the case, which falls completely contrary to the concept of a successful summary judgement application. Accordingly, the judgement and decree passed by the Ld. Single Judge were set aside. 

Impressario Entertainment and Hospitality Private Limited vs. Mocha Blu Coffee Shop (2018)

Facts of the case 

Plaintiff had filed the present suit seeking a permanent and mandatory injunction restraining infringement of the trade mark “MOCHA” against the defendant, under Order VIII Rule 10 read with Section 151 and Order XIII-A of the CPC. On 14.07.2015, the Hon’ble Delhi High Court granted an ex parte ad interim injunction in favour of the plaintiff. In the same suit, the plaintiff also filed an application for summary judgement for disposing of the case in their favour without going to trial. Despite serving notices on defendant and publishing them in the newspapers, defendant neither appeared nor filed a written statement. For the default of the defendant in appearing in the matter, the Court proceeded to hear the matter ex parte. 

Judgement

It was held that the plaintiff, under Order XIII-A of the Commercial Courts Act, 2015, was entitled to a decree, and the court was empowered to pass a summary judgement without recording evidence if it appears that the defendant does not have any real prospect of defending the claim. The Court, ex parte, held that the plaintiff was the registered owner of the trade mark “MOCHA”, and the failure of defendant was indicative of the fact that defendant had no justification for the adoption and use of the said trade name. The application was allowed against the defendant. 

Su-Kam Power Systems Ltd. vs. Mr. Kunwer Sachdev & Anr. (2019) 

Facts of the case

In the present case, plaintiff was the proprietor and user of the Su-Kam Marks in respect of goods covered under Class 9 of the Nice Classification, by way of a Trade Mark Licence Agreement (TMLA) dated 07.07.1995. The said mark had been registered when defendant No. 1 was the Managing Director of the plaintiff company and held more than 80% of the shares of the company. By way of a deed of assignment dated 16.03.2006, entered into between the plaintiff and defendant No. 1, defendant No. 1 made a claim that the trade mark had been assigned to him individually and no longer belonged to Su-Kam. There arose a dispute between the parties wherein the plaintiff brought a suit (through its resolution professional) against the defendants for declaration, permanent injunction, damages, and incidental reliefs pertaining to the trade mark of “Su-Kam”. 

It was the case of the plaintiff that the defendant No. 1 had, over the years and by his conduct, agreed that the trade mark belonged to the plaintiff company and not to defendant No. 1 individually. On this basis, the plaintiff filed an application for summary judgement claiming that defendant No. 1 had no real prospect of defending its claim, there was no compelling reason for the case to go to trial, and that the defense of the defendant No. 1 was an abuse of the process of law. Defendant No. 1, on the other hand, claimed that oral evidence was required to be led as the deed of assignment was fabricated and the TMLA had stood terminated. 

Issue raised

Whether the application for summary judgement ought to be allowed?

Judgement

It was held that, based on the representations made by the defendant No. 1, as a Managing Director of the plaintiff company, he was clearly prevented from now claiming that he was the owner of the trade mark “Su-Kam”. Ultimately, the plaintiff’s application for summary judgement was allowed, holding that the defendants had no real prospect of defending the allegations made by the plaintiff and that there was no compelling reason for trial. 

The Delhi High Court, while considering this case, reiterated the intent behind incorporating the summary judgement procedure in the Commercial Courts Act, 2015, which was to ensure that the disposal of commercial disputes happened in a time-bound manner. It was stated that with the introduction of Order XIII-A, trial in a dispute was no longer the default procedure. Rule 3 of Order XIII-A was also elaborated on by the Court, highlighting a difference between the expressions “realistic” as opposed to “fanciful” prospects of succeeding in a case, the more expeditious and less expensive means of achieving a fair and just trial were harped upon while explaining the provision of Order XIII-A. It was in this case that the interpretation was clearly made that having “no real prospect of success” is a pre-requisite or sine qua non to passing a summary judgement under Order XIII-A of the CPC. 

Bright Enterprises (P) Ltd. vs. MJ Bizcraft LLP (2017)

Facts of the case

In this case, a suit had been filed by the plaintiff against the defendant for its trade mark infringement. The Ld. Single Judge, at the stage of admission of the case, without giving an opportunity for the defendant to be heard, invoked the provisions of summary judgement under Order XIII-A of the CPC and dismissed the suit. An appeal was brought before the Delhi High Court challenging the said dismissal.  

Issues raised

Whether Order XIII-A of the CPC can be invoked by Judge suo motu, without an application made by the plaintiff or defendant?  

Judgement

The order passed by the Ld. Single Judge was set aside, and a few observations were made in this regard, which are as follows:

  • Even though Rule 2 of Order XIII-A gives the court the power to give a summary judgement against a plaintiff or defendant on a claim of the other party, the same could be exercised only when there is an application made by a party;
  • The application for summary judgement can be made any time after the defendant has received a summons but not after the court sets out issues of the case;
  • Going by the principles of audi alteram partem, it is not an option for the court to dismiss the suit at its own instance, without knowing the say of the defendant.

On these grounds, the appeal of the appellant was allowed and the order of the Ld. Singe Judge was set aside on the basis that he was wrong in invoking the provisions of summary judgement without first serving a summons to the defendant, especially when the defendants had, not even once, appeared in the case ever since the suit had been filed and had therefore not admitted the claim of the plaintiff. Thus, there was no prima facie basis for the Ld. Single Judge to dismiss the suit without giving an opportunity to the defendant to be heard. The original suit was restored. 

Jayant Industries vs. Indian Tobacco Co. (2022)

Facts of the case

In this case, the present suit was filed before the Bombay High Court, seeking perpetual injunction restraining ITC (the defendant) from using the plaintiff’s trademark and copyright “CLASSIC” for the manufacturing and sale of cigarettes. It was the case of the plaintiff that the defendant had been using the plaintiff’s trade name and trade mark, which they had been using since 1968, without any consent, authority, or licence from the plaintiff, and this was an infringement of the plaintiff’s copyright and trademark. The defendant made an application for summary judgement on the ground that the plaintiff’s suit was based on a false and fabricated claim. 

Issues raised

In light of the aforementioned facts, it was for the Court to determine whether the summary judgement was to be granted or not. 

Judgement

The Hon’ble High Court held that since the artistic work “CLASSIC” had been in use since 1987, the plaintiff’s claim that the same had been in use since 1968 was considered to be incorrect. The Bombay High Court exercised its power under Order XIII-A of the CPC and dismissed the suit of plaintiff on the ground that plaintiff had initiated the suit on false and fabricated documents and only with a view to extort money from the defendant. Thereby, it was concluded that plaintiff had no real prospect of succeeding in the litigation, and defendant’s application for summary judgement was allowed, and plaintiff was directed to pay a sum of Rs. 60,00,000 to defendant.

Conclusion 

While the procedural laws pertaining to civil disputes in India may be as old as 1908, they are nevertheless open to improvements and amendments. The advent of Order XIII-A into the CPC was done with the object of curtailing the otherwise prolonged nature of commercial suits. Today, the way the Order XIII-A provision has been seen to work in the system, it has served a dual purpose, while it has given confidence to the parties, who are in a position to provide direct evidence and cut short the procedures, to in fact be able to do so, it has also been sought to empower the courts to easily dispense with heavy commercial suits, thereby reducing the burden of cases. In practice, it has been observed that very few cases of summary judgements have actually reached the Apex Court, either in appeal or otherwise. This shows how efficiently the lower courts are able to tackle the concept and give exhaustive outcomes. The courts have allowed the applications for summary judgement wherever sufficient proof has been provided and, at the same time, discarded and condemned the frivolous applications brought by parties in an attempt to play mischief, whenever the need arose. It has been a rather balanced practice. 

We know that not every aspect adopted from foreign jurisdictions has been seen to work out for the Indian framework. However, Order XIII-A has emerged as an antidote brought into the system to abridge the gap between heavy commercial claims and prolonged proceedings. In its way forward, summary judgement appears to be a promising tool for putting an end to the problem of long pending commercial cases before the Indian courts. 

Frequently Asked Questions

Is summary judgement the same as summary suits?

No, a summary suit is a suit filed under Order XXXVII of the CPC for the specific purpose of recovering an amount from the defendant, that he has at some point admitted to. Whereas, in summary judgement, as explained above, there need not always be an amount to be recovered, it can be for any specific reason that makes the case of the applicant so clear that the case need not proceed to trial. 

Why can’t an application for summary judgement be made after the framing of issues?

Once the issues are framed in a case by the court, it is as though the court has found relevance in deciding the case on its merit. Thereafter, any evidence that a party may feel is direct to their case and useful to dismiss the case can be produced during the trial itself.

Is it necessary to produce documentary evidence along with an application for summary judgement?

If the documentary evidence is pertinent to the case of the applicant and it can show how there is no real prospect of the respondent succeeding in the case, it is required that the same be attached to the application for summary judgement. However, it may not always be required, and therefore it is not a mandatory criterion under Order XIII-A of the CPC. 

Can the courts impose costs even if they have not been prayed for in an Order XIII-A application?

Costs are usually claimed by a party, and the courts assess whether it is reasonable to grant them or not. However, the provision for grant of costs is provided under Rules 7 and 8 of Order XIII-A; therefore, even at their own instance, if the courts wish to levy costs on a party, based on certain facts and findings, they can do so, even in the absence of a specific application. 

 Reference

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