Bright Enterprises Private Ltd. and Ors. v. MJ Bizcraft LLP and Ors.

Bright Enterprises Private Ltd. and Ors. v. MJ Bizcraft LLP and Ors.

Decided On: 04.01.2017

Division Bench

Delhi High Court

Appellants/Plaintiffs, Bright Enterprises Pvt. Ltd. and M/s. AKM Enterprises filed a civil suit for infringement of trade mark and passing off against the Defendants/Respondents MJ Bizcraft LLP and Shangri-La’s Eros Hotel. Appellants claimed proprietorship of the mark ‘MBD PRIVE’. The same was being used by the Appellants for luxury wing of their hotels. Respondents were using the mark ‘PRIVEE’ for a night club in their hotel.

The matter was listed before a Learned Single Judge of the Hon’ble High Court of Delhi. After perusing the plaint and the documents along with the plaint, the Learned Single Judge opined that in the plaint the Appellants have not claimed use of the mark in respect of which the Appellants have secured registration of the mark ‘MBD PRIVE’.

The Learned Single Judge observed as follows:

• Counsel for the Appellants claimed that his case is premised on passing off and Appellants are not claiming any relief for infringement.
• The word ‘PRIVE’ is a French word that means ‘private’ or ‘a private place’ and is hence generic.
• As I recollect, erstwhile Hotel Lalit’s business centre was called PRIVE.
• Business Centre of Dusit Devarana is called ‘PRIVE’.
• Nightclub of the Respondents is not a stand along night club but is inside Shangri-La’s Eros.
• There is another hotel PICASSO PRIVE in Delhi.
• There is nothing to show that ‘PRIVE’ category of rooms were launched in 2009, continued till now.
• No turnover figures have been provided by Appellants for luxury wing of rooms under the name ‘PRIVE’.
• Radisson/MBD and Shangri-La/EROS are two separate brands and there is no scope of association.
• Without the Plaintiffs establishing a case of such generic word having acquired a secondary or special meaning so as to denote only the Plaintiffs, the Plaintiffs cannot maintan an action for passing off.
• It is also not as if the said generic word has no relationship to the hotel industry for it to be said that the application thereof by the Plaintiffs in the hotel industry is a ‘first’.
• A suit can be dismissed in limine.
• The Plaintiffs having chosen to file the suit as a commercial suit have taken a chance of the suit being summarily dismissed. Even otherwise, today, when the Courts are facing the problem of docket explosion, unless the Courts weed out such suits which on the reading of the plaint and the documents filed therewith do not show any right in favour of the Plaintiffs, the trial of such suits would be at the cost of expeditious disposal of deserving suits.

With these observations, the Appellants suit was dismissed.

Appellants filed an appeal before the Division Bench of the Hon’ble High Court of Delhi.

Appellants’ Arguments:

• Before a summary judgment can be made, there has to be an application. In case no such application is made, summary judgment cannot be delivered.
• In view of Rule 2 of Order XIIIA CPC, not only an application for summary judgment necessary, but such application could only be made at any time after summons had been served.
• A suit cannot be dismissed at the admission stage without the issuance of summons.
• If the plaint is neither returned under Order VII Rule 10 or rejected under Order VII Rule 11 CPC, the same would have to be registered and summons would have to be served.
• Observation of the learned Single Judge that the claim for infringement had been given up is wrong.
• Certain Findings in the impugned judgment have been arrived at by carrying out independent research without affording an opportunity to the Appellants/Plaintiffs to rebut the same.

Respondents’ Arguments:

• Court had jurisdiction to issue a summary judgment against the Plaintiffs in view of the provisions of Rule 3 of Order XIIIA CPC.
• 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.
• 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.
• In order to expeditiously dispose commercial matters and also having regard to the fact that there was no requirement of recording oral evidence in order to pass a judgment in proceedings where there was no real prospect of success, it was open to Court to pass a summary judgment without notice to the Defendants.
• Order V Rule 1 deals with the issuance of summons and uses the word ‘may’ as opposed to ‘shall’. Therefore, it was not incumbent upon the Court to issue summons in every suit which has been duly instituted.

Division Bench’s Observations:

• 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.
• Learned Single Judge has gone wrong in invoking the powers under Order XIIIA CPC. This power can only be exercised upon an application.
• The window for summary judgment is after the service of summons and prior to the Court framing issues in the suit.
• The provisions relating to summary judgment are exceptional in nature. Thus, it is essential that the stipulations are followed scrupulously otherwise it may result in gross injustice.
• 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.
• Since no summons had been issued and obviously no application had been filed by the Respondents for a summary judgment, the Learned Single Judge could not have dismissed the suit invoking the provisions of Order XIIIA CPC.
• Learned Single Judge has indeed made certain observations and returned certain findings based on his own research without any opportunity of rebuttal having been given to the Appellants/Plaintiffs.
• Learned Single Judge could not himself become a witness in a case before him and that, too, without any opportunity of rebuttal (or cross-examination) to the Plaintiffs/Appellants. At the stage of admission of a suit, it has only to be seen as to whether it has been duly instituted or not. The statements contained in the plaint are to be taken by way of demurrer and they can only be proved or disproved through evidence based on issues that may be struck. A Court may feel that the case of a Plaintiff is weak but that is no ground whatsoever for throwing out the suit log, stock and barrel without giving the Plaintiff an opportunity of proving and establishing its case.
• Before concluding, we would like to make a brief comment on the court’s concern with ‘docket explosion’. No doubt, it is a problem for the judicial system to contend with. But, that does not concern the individual litigant who comes to court seeking justice. Our endeavour must never be to deny justice to anyone in our over zealousness to dispose cases. As Benjamin Franklin said – great haste makes great waste, courts while endeavoring to deliver speedy justice, must not hand out hasty decisions without any concern for justice.

The Appeal was allowed.