A summary judgment may be passed, without recording evidence, if it appears that the defendant has no real prospect of defending the claim or has failed to file written statement

The Delhi High Court relying on Order XIII-A of the Commercial Courts Act, 2015 held that where the defendant has no real prospect of defending the claim, a summary judgement may be passed without any recording of evidence if it appears that the defendant has no real prospect of defending the claim.

The said ratio was delivered by the Delhi High Court in the matter of Impresario Entertainment & Hospitality Pvt. Ltd. Vs. Mocha Blu Coffee Shop, CS(COMM) 733/2017 decided on 30.10.2018.

Challenge

A suit was filed by the Plaintiff seeking permanent and mandatory injunction restraining infringement of trade mark MOCHA against the defendant. Despite service by way of publication in the newspapers, the defendant failed to appear or file its written statement. In the said backdrop, the Court was called upon to decide an application under Order VIII Rule 10 read with Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.

Held

In the process of adjudicating the above application, the Delhi High court reiterated the law with respect to Order VIII Rule 10 of CPC. Referring to a judgement of the same Court in CS(OS) 873/2015 titled “Samsung Electronics Company Limited & Anr. Vs. Mohammed Zaheeer Trading As M/s. Gujarat Mobiles & Ors.” the Court observed that in a case where written statement has not been filed, the court should be a little more cautious in proceeding under Order VIII Rule 10 CPC and before passing a judgment, it must ensure that even if the facts set out in the plaint are treated to have been admitted, a judgment and decree could not possibly be passed without requiring him to prove the facts pleaded in the plaint.

It is only when the court for recorded reasons is fully satisfied that there is no fact which needs to be proved at the instance of the plaintiff in view of the deemed admission by the defendant, the court can conveniently pass a judgment and decree against the defendant who has not filed the written statement. But, if the plaint itself indicates that there are disputed questions of fact involved in the case arising from the plaint itself giving rise to two versions, it would not be safe for the court to record an ex parte judgment without directing the plaintiff to prove the facts so as to settle the factual controversy.

Thus, the Delhi High Court took a view that the plaintiff was entitled to a decree under Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015, as the said provision empowers this Court to pass a summary judgment, without recording evidence, if it appears that the defendant has no real prospect of defending the claim.