Delhi High Court
Sandeep Kumar vs Sh Tarun Arora And Anr on 20 May, 2026
Author: Subramonium Prasad
Bench: Subramonium Prasad
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20th MAY, 2026
IN THE MATTER OF:
+ I.A. 38753/2024
IN
CS(COMM) 826/2023
SANDEEP KUMAR .....Plaintiff
Through: Mr Sandeep Kumar (Plaintiff in
person) and Ms Vishruti and Mr Anil
Kumar Bakshi, Advs.
versus
SH TARUN ARORA AND ANR .....Defendants
Through: Mr. Sanjeev Mahajan, Ms Simran
Rao, Advs. for D-1 and D-2
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
I.A. 38753/2024
1. The present application under Order XIIIA of the CPC has been filed
by the Plaintiff for passing a summary judgment.
2. The present Suit has been filed by the Plaintiff seeking recovery of
Rs.2.60 crores from the Defendants.
3. The averments, in brief, as made in the Plaint read as under:
a. The Plaintiff is a practising Advocate and Cost and Management
Accountant (CMA) who has worked for more than twelve years in theSignature Not Verified
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field of finance and accounts in various Public Sector Undertaking
and also enrolled as an advocate since 2005.
b. The Defendant Nos. 1 and 2 are real brothers who along with their
mother Smt. Santosh Arora were party to various litigation
proceedings initiated at the instance of them and their uncle Sh. M. L.
Arora since the year 1998.
c. It is stated that in March 2002, Defendant No.1 approached the
Plaintiff to avail his services on a recommendation given by one Mr.
Adarsh Bedi who is also a friend of the Plaintiff. It is further stated
that the Defendant No.1 came to the Plaintiff qua several disputes and
litigation proceedings going on between the Defendants and their
uncle.
d. It is stated that the Plaintiff agreed to provide the professional services
on the fees of Rs. 2,000/- per hour towards consultation, Rs. 15,000/-
per appearance, Rs. 5,00,000/- if the Defendants would want the
Plaintiff to prepare the written arguments, and 10% of the aggregate
amount of fees for all other services rendered by the Plaintiff during
the course of the professional engagement and the same was duly
accepted by the Defendants.
e. It is stated that the services rendered by the Plaintiff also includes
police related issues, electricity connection, issues pertaining to Shop
No. 99 etc., administrative and quasi-judicial proceedings etc. It is
further stated that during the professional engagement between the
Plaintiff and the Defendants, the Defendants were continuously
replacing the advocates at different stages of proceedings of the suitsSignature Not Verified
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and changed about ten advocates, however, the Defendants kept
ascertaining that it is the Plaintiff whom they are relying on.
f. It is stated that the Defendants engaged different advocates who
charged their fees as deemed appropriate by them. It is further stated
that Defendants engaged some Advocate for final arguments who
charged Rs. 1,00,000/- towards the final arguments only. It is stated
that, however, it was the Plaintiff who drafted the written arguments
which formed the basis of oral arguments and filed the same in Court.
It is further stated that the Defendants took divergent opinions from
several advocate, however, the Defendants placed reliance upon
opinion and advice of the Plaintiff with regard to the approach to be
followed in case involving Shop No. 128. It is the contention of the
Plaintiff that it was the Plaintiff who formulated the arguments in
rebuttal, defence of maintainability.
g. The Plaintiff delivered wide ranging services to the Defendants and
continued to deliver the same for more than 18 years from March
2002 to January 2021 with regard to numerous issues and problems
faced by the Defendants inside and outside the Court. It is further
stated that the Plaintiff even after suffering heart attack in 2010 and
during the COVID time has put a lot of hard work, his deep
professional knowledge and precious productive time of life as per the
terms agreed between the Plaintiff and the Defendants. It is the
contention of the Plaintiff that on the conclusion of suits in January
2021, the Defendants became liable to pay the accumulated amount of
fees/professional charges for the quantum of work done, the Plaintiff
called upon Defendant No.1 who was acting on behalf of theSignature Not Verified
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Defendants to make payment of Rs. 2.65 crores towards the
professional charges as per the terms of fees agreed.
h. It is stated by the Plaintiff that the Defendant No.1 paid only
Rs.5,00,000/- towards the professional charges incurred during the
period of 18 years of professional engagement. It is further stated that
when the Plaintiff called upon the Defendants to pay the balance
amount, instead of paying and telling the time within which the
balance amount will be paid, the Defendant No.1 on 28.02.2021
issued an e-mail stating that since the Plaintiff knew the case of their
uncle was mala fide, therefore, the Plaintiff offered to provide
services by help i.e., pro bono. It is further stated that the Defendants
accepted the offer and that Rs. 5,00,000/- were paid out of morality
and charity. It is further stated that the Defendants, instead of taking
steps to pay the balance amount of Rs. 2.6 crores resorted to sending
the fraudulent e-mail dated 28.02.2021 in complete disregard to law
and ethics.
i. It is stated that the Plaintiff was extremely shocked and disturbed by
the conduct of the Defendants as even after putting all his efforts in
resolving the issues and problems faced by the Defendants, the
Defendants failed to pay the outstanding amount due to the Plaintiff.
It is further stated that the Plaintiff even after being a heart patient
since 2010, had to take medicines to overcome the shock and trauma
suffered and it was also very traumatic for the family of the Plaintiff
to see the Plaintiff suffer. It is further stated that the Plaintiff
thereafter made a great amount of bona fide efforts to persuade the
Defendants to give up the path of dishonesty and to settle the matterSignature Not Verified
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amicably, however, the Defendants chose to persist with their
dishonest course and refuse the settle the matter amicably and thus,
the Plaintiff has filed the instant Suit for recovery of principle amount,
interest, and the cost of litigation.
j. Written statement has been filed by the Defendants. In the written
statement, the Defendants have raised the following arguments:
i. The present Suit filed by the Plaintiff is nothing but an attempt
to extort money from the Defendants.
ii. No documents have been filed by the Plaintiff showing the
nature of understanding, schedule of fees or any kind of
arrangement entered into between the Plaintiff and the
Defendants which gives rise to any cause of action for filing the
present Suit.
iii. The Plaintiff has also not filed any documents which indicates
that the Defendants have agreed that the Plaintiff would be paid
a sum of Rs.2,000/- per hour for consultation, Rs. 15,000/- per
appearance or Rs.5,00,000/- for drafting written submissions.
iv. The Plaintiff has not rendered services as claimed by him from
the year 2002. The Defendants have also denied the claim of
the Plaintiff that more than 18 years have been spent by the
Plaintiff in rendering services to the Defendants. It is contended
that the Plaintiff got enrolled as an Advocate only in the year
2005 and, therefore, the claim of the Plaintiff that he has been
rendering services from the year 2002 is incorrect.
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v. It is the specific case of the Defendants that the Plaintiff did not
draft the main pleadings and only helped in filing 3 or 4 small
applications. The Plaintiff has neither conducted any cross-
examination nor has he addressed final arguments. It is
contended that the Plaintiff was like a junior counsel who was
eager to learn the act of advocacy by being associated and
engaged in ongoing matters.
4. After completion of pleadings, the present application under Order
XIIIA of the CPC has been filed by the Plaintiff for passing a summary
judgment on the ground that the Defendants have no real prospect of
successsfully defending the claims.
5. A written note has also been filed by the Plaintiff. In the written note,
it is stated that the Plaintiff rendered professional services to the Defendants
from March, 2002 to 2021 and during the said period the Plaintiff suffered a
heart attack in 2010 and during COVID-19 also the Plaintiff who has
continuously working hard in providing legal assistance to the Defendants. It
is further stated that professional services could not have been given without
agreeing to the terms of fees as the same is based on various components
involved in professional services including time and complexity of task. It is
the contention of the Plaintiff that the Defendants failed to deny the rationale
of the fees stated and has only denied the fact that there was no agreement
qua terms of fees. It is further stated that the claim of the Plaintiff in the
present Suit is in line with the amount of work done and, therefore, the terms
of the fee as agreed between the Parties does not suffer from any error.
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6. It is further stated by the Plaintiff that the defence set up by the
Defendants in their written statement is not only a moonshine defence but
the same is nothing but a contumacious and impudent lies only. It is further
stated that the present application being I.A. 38753/2024 satisfies the
conditions prescribed under Rule 3 of Order XIIIA of CPC as the said Rule
mandates that defence raised by the Defendants must be real and in the
instant Suit, the same is not only unreal but also a moonshine defence which
is based on bald assertions without any evidence and, therefore, the same
requires to be disposed of before recording of evidence. It is further stated
that the said application also satisfies the requirement under Order XII Rule
6 of CPC as the denial are evasive in nature and based on contumacious and
impudent lies only.
7. Per contra, learned Counsel for the Defendants in its written
statement have taken various objections qua the maintainability of the
present Suit and on the merits of the present case. It is the contention of the
Defendants that there was a professional arrangement and understanding
between the Plaintiff and the Defendants is that of an Advocate and a Client.
There was no arrangement or agreement neither oral nor written executed
between the Plaintiff and the Defendants, the Plaintiff was supposed to act
professionally in the capacity of an Advocate. It is further stated by the
Defendants that the Plaintiff failed to comply with his professional duties
required to be performed as an Advocate.
8. It is further stated by the Defendants that Plaintiff has failed to
produce a single document or any shred of evidence which would
demonstrate that there was any kind of understanding or arrangement
between the Plaintiff and the Defendants whereby the Defendants were
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supposed or agreed to pay an amount of Rs.2,000/- per hour for consultation,
Rs.15.000/- per appearance and Rs.5,00,000/- for drafting and written
submissions. It is further stated that the Plaintiff has also failed to show that
at any point of time of their professional engagement the Defendants had
agreed to be charged for the professional legal service as alleged by the
Plaintiff. Defendants in their written statement have taken a stand that it is
only in the year 2021 when the Defendants succeeded in Suits filed in 2000,
2002 & 2003 contrary to the Plaintiff’s submission that that Plaintiff was
rendering professional services from March, 2002. It is further stated that
there was never an arrangement between the Plaintiff and the Defendants
and that the Defendants are liable to pay any amount to the Plaintiff in
capacity of an Advocate. It is the contention of the Defendants that the
Plaintiff failed to raise bills during the period from March, 2002 to 2021 and
the Plaintiff is now claiming money from the Defendants by allegedly and
purportedly showing his services as an Advocate. The Defendants have
further stated that the Plaintiff has failed to furnish any reason whatsoever
for waiting for 20 years i.e., from March, 2002 to 2021 in raising the
outstanding amount towards alleged professional services provided in
capacity of an Advocate.
9. Learned Counsel for the Defendants states that in the written
statement, the Defendants have taken a stand that the present Suit for
recovery is otherwise is also misconceived for the reason that the present
Suit is against the letter and spirit of Advocates Act, 1961. According to the
Defendants, it is an established principle of law that the profession of a
lawyer is a noble profession whereby the legal services rendered by an
Advocate towards the welfare of the society and to ensure justice. The
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Plaintiff’s conduct is contrary to the heart and soul of the Advocates Act,
1961 as the Plaintiff is not only threatening the Defendants of dire
consequences but also compelling the Defendants to pay the money by
harassing the Defendants and extorting monies out of the Defendants by
threat of embroiling them in litigation. It is further stated that the conduct of
the Plaintiff towards Defendants is contrary to the noble profession and the
same is done to compel the Defendants for payment of purported legal fees.
10. It is further stated by the Defendants that there is no provision in the
Advocates Act, 1961 which entitles an Advocate to charge fees in an
arbitrary or random manner bereft of any prior mutual understanding. The
conduct of the Plaintiff in raising bills towards legal services after the
culmination of the Suits without there being any Agreement between the
Plaintiff and the Defendants is an absolute violation of the provisions of the
Advocates Act, 1961. It is further stated by the Defendants that the
Plaintiff’s conduct shows that there is scant respect for law and professional
ethics as is mandatorily required to be maintained by an Advocate as the
Plaintiff had demanded payment towards legal services for the period when
by his own admission, the Plaintiff was not even enrolled as an Advocate. It
is further stated that the Plaintiff has claimed amount in the present Suit for
the period between 2002 and 2005 contrary to his own statement in Plaint
wherein it is stated that the Plaintiff was enrolled as an Advocate in the year
2005, therefore, the claims of the Plaintiff are misconceived and fraudulent
in nature.
11. It is the contention of the Defendants that the present Suit filed by the
Plaintiff is based on frivolous claims as the engagement of the Plaintiff by
the Defendants was limited to a very narrow role in litigation of the
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Defendants against their uncle Sh. M. L. Arora, therefore, the claim of
Rs.2,60,00,000/- towards professional legal services is entirely
misconceived and false. It is further stated that the Plaintiff did not even
drafted the main pleadings and the only service of the Plaintiff availed by
the Defendants was in filing 3 to 4 small applications, replies and initial
draft of written submissions. It is also the submission of the Defendants that
the Plaintiff neither conducted cross-examination nor addressed any final
arguments. It is further stated that the role of the Plaintiff was like that of a
Junior Advocate was either to learn the art of Advocacy by being associated
and engaged in an ongoing matter with a main Advocate who had been
handling the Defendants matters at various point of time. It is further stated
that the Plaintiff learnt the art of advocacy at the cost of the Defendants by
engaging in Defendants’ several litigations wherein the Plaintiff primary
task was to watch the proceedings and only in the absence of the main
Advocate take adjournments in the matter. It is further stated that the
Plaintiff throughout the course of litigation proceedings told the Defendants
that the Plaintiff was acting as a friend/elder brother and not as an Advocate
because the Plaintiff himself was learning the nuances of advocacy by
attending and assisting the main Advocate or experienced Advocate engaged
by the Defendants during the course of hearing the Suits. It is for this reason,
the Plaintiff never appeared as a main or arguing Counsel in Suit
proceedings initiated at the instance of the Defendants and their uncle before
the District Court. It is further stated that the Plaintiff is trying to misguide
this Hon’ble Court by stating that a fee of Rs.2,000/- per hour was fixed as a
legal fee towards professional legal services in March, 2002 for studying of
documents, judgments, and consultation as the Defendants would not agree
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to pay the Plaintiff such an exponential fee as the Plaintiff was not even a
qualified Advocate with no legal experience. It is further stated by the
Defendants that the allegations enumerated in the present Suit would depict
that the Plaintiff is raising claims based on contingent fee i.e., percentage of
the value of claim in the litigation depending upon the outcome of the
litigation against Defendants’ uncle, however, such claims based on
contingent fee raised by an Advocate is barred under law and as such the
present Suit is itself barred. It is further stated that the litigation against
Defendants’ uncle involved several intricate questions involving question of
law and question of fact and, therefore, the allegation of the Plaintiff that
despite changing many Advocates the Defendants primarily relied upon the
Plaintiff does not hold any merit.
12. Heard learned Counsel appearing for the Parties and perused the
material on record.
13. The Apex Court in Reliance Eminent Trading and Commercial
Private Limited vs. Delhi Development Authority vide Judgment dated
29.04.2026 passed in Special Leave Petition (C) No. 22100 of 2025, has
explained the scope of Order XIIIA of CPC which reads as under:
“52. The question then arises regarding the scope of
enquiry under Order XIII-A of the CPC. At one end of
spectrum, it is to follow the test laid out in Wenlock v.
Moloney, [1965] 1 WLR 1238, wherein the English
Court of Appeal adopted rigid standard to state that: –
“…this summary jurisdiction of the court
was never intended to be exercised by a
minute and protracted examination of the
documents and facts of the case, in order to
see whether the plaintiff really has a cause ofSignature Not Verified
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action. To do that is to usurp the position of
the trial judge, and to produce a trial of the
case is chambers, on affidavits only, without
discovery and without oral evidence tested
by cross-examination in the ordinary way.
This seems to me to be an abuse of the
inherent power of the court and not a proper
exercise of that power.”
53. A less stringent standard was adopted in William
and Humbert Ltd. v. W & H Trade Marks (Jersey) Ltd.,
[1986] AC 368, wherein the U.S. Court of Appeals for
the District of Columbia Circuit observed that a Court
should, as a general rule, decline to proceed with the
argument unless it not only harbours doubts about the
soundness of the pleadings but, in addition, is satisfied
that striking out will obviate the necessity for a trial or
will substantially reduce the burden of preparing for
the trial or the burden of the trial itself.
54. In Three Rivers District Council v. Governor and
company of the Bank of England, [2001] UKHL 16, the
House of Lords was considering a suit for damages
against the Bank of England for misfeasance in public
office arising from collapse of Bank of Credit and
Commerce International SA. While considering the
application of the defendant for summary judgement, it
was held that: –
“95. I would approach that further question
in this way. The method by which issues of
fact are tried in our courts is well settled.
After the normal processes of discovery and
interrogatories have been completed, the
parties are allowed to lead their evidence so
that the trial judge can determine where the
truth lies in the light of that evidence. To that
rule there are some well-recognised
exceptions. For example, it may be clear as a
matter of law at the outset that even if aSignature Not Verified
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party were to succeed in proving all the facts
that he offers to prove he will not be entitled
to the remedy that he seeks. In that event a
trial of the facts would be a waste of time
and money, and it is proper that the action
should be taken out of court as soon as
possible. In other cases it may be possible to
say with confidence before trial that the
factual basis for the claim is fanciful because
it is entirely without substance. It may be
clear beyond question that the statement of
facts is contradicted by all the documents or
other material on which it is based. The
simpler the case the easier it is likely to be
take that view and resort to what is properly
called summary judgment. But more complex
cases are unlikely to be capable of being
resolved in that way without conducting a
mini-trial on the documents without
discovery and without oral evidence. As Lord
Woolf said in Swain v Hillman, at p 95, that
is not the object of the rule. It is designed to
deal with cases that are not fit for trial at
all.”
55. Closer to the home, various High Courts have
rendered their opinions primarily on a cautionary note
in adjudicating summary judgments, which have been
held to be applicable in exceptional cases. Reference in
this regard can be made to Bright Enterprises Pvt. Ltd.
v. MJ Bizcraft LLP & Anr., 2017 SCC Online Del 6394
and Su-kam Power Systems Ltd. v. Mr. Kunwer
Sachdev & Anr., 2019 SCC Online Del 10764.
56. If a case before the Court gives rise to a neat point
of law or construction, and if the Court is satisfied that
it has all evidences necessary for the proper
determination of the question and that the parties have
had an adequate opportunity to address their
arguments; it should grasp the nettle and decide the
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same. While it is simply not enough for the defendant
to argue that something may come up in trial, at the
same time the defendant has to show from the
documents available on record, or portray that such
evidence likely exists and can be expected to be made
available during the trial.
57. There is no gainsaying that the Court ought not to
conduct a mini-trial in this regard, rather take the
statements and facts on the face, until any
contemporaneous document indicates otherwise. In
doing so, the Court ought to not only take into account
the evidence actually available on the record, but also
the evidence that can be reasonably be expected to be
available in the process of trial.
58. It may not be out of context to note that the use of
summary judgment will not be against the interest of
justice if it will lead to a fair and just result, and serve
the goals of timeliness, affordability and
proportionality in light of the litigation as a whole.
59. Therefore, while considering an application for
summary judgment under Order XIII-A of the CPC, the
following nonexhaustive guidelines have to be
complied –
(i) That the procedural mandate under Order XIII-A,
CPC be strictly complied.
(ii) The Court should consider,
(a) Whether Plaintiff has no real prospect of
succeeding on the claim or issue; or
(b) Whether the defendant has no real prospect of
successfully defending the claim or issue; and
(iii) The Court should also consider whether there is
no other reason why the case or issue(s) should be
allowed to go to trial.
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(iv) While ascertaining above, the Court does not have
to take everything on the face value, but it must also
not conduct a mini trial at the same time.
(v) That the Court has to differentiate between a cause
of action/defence respectively, which is real as opposed
to fanciful prospect.
(vi) That the Court ought to grasp the nettle, when
dealing with the summary judgment applications to
decide short points of law and interpretations.
(vii) The Court must take into account not only the
evidence before it but also the evidence that can
reasonably be expected to be led/available at the trial.
(viii) That the Court‟s usage of power under Order
XIII-A, CPC is exceptional as it cuts short the process
of trial and ought to be exercised where oral evidence
and full trial is not required.
(ix) In order to ascertain the need for full trial over
summary judgment, the Court has to see whether, in
the interest of justice, it is more suited to conduct trial
to –
(a) Weigh the evidence,
(b) Evaluate the credibility of a deponents,
(c) Draw reasonable inferences from the
evidence.”
14. A perusal of the above judgment indicates that the Court cannot take
every averment made in the Plaint on its face value and the Court must take
into account not only the evidence before it but also the evidence that can
reasonably be expected to be led at the trial. Order XIIIA of CPC is an
exceptional power and must exercise only in the interest of justice.
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15. A Co-ordinate Bench of this Court in Su-Kam Power Systems Ltd. vs.
Kunwer Sachdev and Another, 2019 SCC OnLine Del 10764 has observed
as under:
“49. Consequently, this Court is of the view that
when a summary judgment application allows the
Court to find the necessary facts and resolve the
dispute, proceeding to trial would generally not be
proportionate, timely or cost effective. It bears
reiteration that the standard for fairness is not whether
the procedure is as exhaustive as a trial, but whether it
gives the Court the confidence that it can find the
necessary facts and apply the relevant legal principles
so as to resolve the dispute as held in Robert
Hryniak (supra).
50. In fact, the legislative intent behind introducing
summary judgment under Order XIIIA of CPC is to
provide a remedy independent, separate and distinct
from judgment on admissions and summary judgment
under Order XXXVII of CPC.
51. This Court clarifies that in its earlier judgment
in Venezia Mobili (India) Pvt. Ltd. v. Ramprastha
Promoters & Developers Pvt. Ltd., 2019 SCC OnLine
Del 7761 while deciding two applications, both filed by
the plaintiff in the said case (one under Order XII Rule
6 and other under Order XIIIA) it had applied the
lowest common denominator test under both the
provisions of the Code of Civil Procedure and held that
the suit could be decreed by way of a summary
judgment.
52. Consequently, this Court is of the opinion that
there will be „no real prospect of successfully
defending the claim‟ when the Court is able to reach a
fair and just determination on the merits of the
application for summary judgment. This will be the
case when the process allows the court to make theSignature Not Verified
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necessary finding of fact, apply the law to the facts,
and the same is a proportionate, more expeditious and
less expensive means to achieve a fair and just result.”
16. Similarly, another Co-ordinate Bench of this Court in Sun Parma
Laboratories Ltd. vs. Mylan Laboratories Limited and Another, 2023 SCC
OnLine Del 4661 has observed as under:
“10. The Court has considered the matter. The
present application under Order XIII-A Rule 3 CPC is
one seeking summary judgment. This Court has
in Rockwool International A/S v. Thermocare
Rockwool (India) Pvt. Ltd., 2018 : DHC : 6774,
considered the necessary conditions for passing
summary judgment. The kind of cases that can be
decided in a summary manner have to be those cases
where a party has no real prospect of succeeding in the
claim. A perusal of Order XIII A Rule 3 as amended by
the Commercial Courts Act, 2005 reads as under:
“Order XIII-A Summary Judgment
1………2……… 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 not 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.”
11. The pre-conditions for passing of a summary
judgment under Order XIIIA Rule 3 CPC, as
elucidated in Rockwool International (supra) are:
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i) that there is no real prospect of a party succeeding
in a claim;
ii) that no oral evidence would be required to
adjudicate the matter;
iii) there is a compelling reason for allowing or
disallowing the claim without oral evidence.”
17. A Division Bench of this Court in Bright Enterprises Private Ltd. &
Anr. vs. MJ Bizcraft LLP & Anr., 2017 SCC OnLine Del 6394 has observed
as under:
“20. 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.
21. 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 powerSignature Not Verified
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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 issues in the
suit.”
18. Another Co-ordinate Bench of this Court in Kamdhenu Limited vs.
Aashiana Rolling Mills Ltd., 2021 SCC OnLine Del 2426 has analysed
Order XIII-A as under:
“VI. Analysis
A. Principles of Order XIII-A of the CPC
28. Before dealing with the arguments of the parties on
merits, it is necessary to appreciate the principles
applicable to adjudication of an application under
Order XIII-A of the CPC.
29. This Court has had occasion to deal with this in
several judgments. Mr. Rao referred me to the
decisions of coordinate benches in Jindal Saw
Ltd. (supra), Venezia Mobili (supra), Mallcom
(India) (supra), K.R. Impex (supra), Su-kam (supra)
and Elder Projects Ltd. (supra). Mr. Bansal, on the
other hand, relied upon the Division Bench decision
in Bright Enterprises (supra), Clues
Network (supra), Rockwool (supra), and CFA
Institute (supra).
30. In Bright Enterprises, the Division Bench allowed
the plaintiff’s appeal against dismissal in limine of a
suit for injunction against infringement of trademark,
passing off, etc. The Division Bench held that, upon the
institution of a suit, the issuance of summons to theSignature Not Verified
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defendant is mandatory, and that the power under
Order XIII-A can be exercised only upon an
application being made after the service of summons
and prior to framing of issues. In Rockwool, the
learned Single Judge applied the judgment in Bright
Enterprises and came to the conclusion that several of
the issues arising in that case could not be decided
without trial.
31. After the publication of the Delhi High Court
(Original Side) Rules, 2018 [“the Rules”], a view has
been taken in K.R. Impex (supra), Mallcom
(India) (supra) and Jindal Saw Ltd. (supra), that
Chapter XV-A of the Rules (which would override the
provisions of the CPC by virtue of Section 129 thereof)
permits disposal of a suit by summary judgment on any
date of hearing. However, it is not necessary in the
facts of the present case to enter into this controversy,
as summons have indeed been issued in the present
suit, and a formal application invoking the provisions
of Order XIII-A has been filed by the defendant prior to
framing of issues.
32. Mr. Bansal relied upon the judgment in Clues
Network (supra), wherein the Division Bench cited the
judgment in Bright Enterprises (supra), to hold that the
procedure laid down therein has to be followed.
In Clues Network, earlier applications filed under
Order XIII-A of CPC had already been dismissed and
there was no pending application for this purpose. It is
in these circumstances that the Division Bench set
aside an order of the learned Single Judge disposing of
the suit under Order XIII-A, albeit after recording that
counsel for the parties had consented to such disposal.
The circumstances of the present application are
entirely different. It has been instituted in writing after
service of summons and prior to framing of issues, as
contemplated by Order XIII-A Rule 2. No argument
has been raised by Mr. Bansal regarding the proper
constitution or presentation of the present application,
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and the judgment in Clues Network is, in my view, of
no assistance to him.
33. The circumstances in which an application under
Order XIII-A ought to be allowed have been dealt with
in Su-Kam (supra). The Court considered the English
Law pertaining to Rule 24 of Civil Procedure Rules,
which is in pari materia to Order XIII-A of the CPC.
34. Rule 3 of Order XIII-A lays down the tests which
must be satisfied in order to enter judgment under the
said provision. With regard to the „real prospect of
success‟ limb of the test, the judgment of the Chancery
Division in Easyair Ltd. v. Opal Telecom Ltd., [2009]
EWHC 339 (Ch) was cited before the Court in Su-
Kam. In Easyair, the Chancery Court distilled the
principles thus:
“i) The court must consider whether the claimant
has a “realistic” as opposed to a “fanciful”
prospect of success: Swain v. Hillman (2001) 1
All ER 91;
ii) A “realistic” claim is one that carries some
degree of conviction. This means a claim that is
more than merely arguable : ED & F Man Liquid
Products v. Patel (2001) 1 All ER 91 at [8];
iii) In reaching its conclusion the court must not
conduct a “mini-trial”: Swain v. Hillman;
iv) This does not mean that the court must take at
face value and without analysis everything that a
claimant says in his statements before the
court. In some cases it may be clear that there is
no real substance in factual assertions made,
particularly if contradicted by contemporaneous
documents : ED & F Man Liquid
Products v. Patel at [10];
v) However, in reaching its conclusion the court
must take into account not only the evidence
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actually placed before it on the application for
summary judgment, but also the evidence that
can reasonably be expected to be available at
trial : Royal Brompton Hospital NHS
Trust v. Hammond (No 5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be
really complicated, it does not follow that it
should be decided without the fuller investigation
into the facts at trial than is possible or
permissible on summary judgment. Thus the court
should hesitate about making a final decision
without a trial, even where there is no obvious
conflict of fact at the time of the application,
where reasonable grounds exist for believing that
a fuller investigation into the facts of the case
would add to or alter the evidence available to a
trial judge and so affect the outcome of the case :
Doncaster Pharmaceuticals Group Ltd. v. Bolton
Pharmaceutical Co. 100 Ltd. [2007] FSR 63;
vii) On the other hand it is not uncommon for an
application under Part 24 to give rise to a short
point of law or construction and, if the court is
satisfied that it has before it all the evidence
necessary for the proper determination of the
question and that the parties have had an
adequate opportunity to address it in argument,
it should grasp the nettle and decide it. The
reason is quite simple : if the respondent’s case is
bad in law, he will in truth have no real prospect
of succeeding on his claim or successfully
defending the claim against him, as the case may
be. Similarly, if the applicant’s case is bad in law,
the sooner that is determined, the better. If it is
possible to show by evidence that although
material in the form of documents or oral
evidence that would put the documents in another
light is not currently before the court, such
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be available at trial, it would be wrong to give
summary judgment because there would be a real,
as opposed to a fanciful, prospect of success.
However, it is not enough simply to argue that the
case should be allowed to go to trial because
something may turn up which would have a
bearing on the question of construction : ICI
Chemicals & Polymers Ltd. v. TTE Training
Ltd. [2007] EWCA Civ 725.”
(Emphasis supplied.)
35. With regard to the second limb of the test,
[corresponding to Order XIII-A Rule 3(b) of the CPC],
this Court in Su-kam has recorded the submission
based upon the following observations in Blackstone’s
Civil Practice : The Commentary with regard to
„compelling reasons‟, thus:
“(a) The respondent is unable to contact a
material witness who may provide material for a
defence.
(b) The case is highly complicated such that
judgment should only be given after mature
consideration at trial.
(c) The facts are wholly within the applicant’s
hands. In such a case it may be unjust to enter
judgment without giving the respondent an
opportunity of establishing a defence in the light
of disclosure or after serving a request for further
information. However, summary judgment will not
necessarily be refused in cases where the evidence
for any possible defence could only lie with the
applicant if there is nothing devious or artificial
in the claim.
(d) The applicant has acted harshly or
unconscionably, or the facts disclose a suspicion
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applicant such that judgment should only be
obtained in the light of publicity at trial.”
36. After a consideration of the Statement of Objects
and Reasons of the 2015 Act and the English and
Canadian judgments relating to similar provisions for
summary judgment, this Court has held as follows:
“42. Consequently, the new Rule, applicable to
commercial disputes, demonstrates that trial is
no longer the default procedure/norm.
xxxx xxxx xxxx
44. While deciding the test for summary judgment
under Rule 24.2, House of Lords in Three Rivers
District Council v. Governor and Company of the
Bank of England, [2003] 2 A.C. 1, reiterated the
observation in Swain v. Hillman, (2001) 1 All ER
91 that the word „real‟ distinguishes „fanciful‟
prospects of success and it directs the Court to
examine whether there is a „realistic‟ as opposed
to a „fanciful‟ prospect of success. The House of
Lords in Three Rivers District Council (supra)
also held that the Court while considering the
words „no real prospect‟ should look to see what
will happen at the trial and that if the case is so
weak that it has no reasonable prospect of
success, it should be stopped before great
expenses are incurred…
xxxx xxxx xxxx
45. The Supreme Court of Canada in Robert
Hryniak v. Fred Mauldin, 2014 SCC OnLine Can
SC 53 has also held that trial should not be the
default procedure. In the said case, which was an
action for civil fraud against the appellant and a
corporate lawyer, who acted for the appellant, the
allegation was that the appellant, through that
company, had transferred more than US $10
million to an offshore bank following which heSignature Not Verified
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claimed that the money had been stolen. That
money had initially been transferred to the
appellant’s company, by the respondents therein,
in respect of an investment opportunity.
xxxx xxxx xxxx
47. The Supreme Court of Canada, despite
allegation of fraud, did not exercise the power to
record oral evidence. Instead, the Court granted
summary judgment in favour of the
respondents/plaintiff on the basis of the
material/pleadings already available with it. The
Court held that there is no genuine issue
requiring a trial when the judge is able to reach a
fair and just determination on the merits on a
motion for summary judgment. The Court further
held that that is the case when the process allows
the judge to make necessary findings of fact,
allows the judge to apply the law to such facts and
when such a process is proportionate, more
expeditious and a less expensive means of
achieving a just result. Consequently, when a
summary judgment motion allows the judge to
find the necessary facts and resolve the dispute, it
would not be necessary to proceed to trial. In this
regard the standard for fairness is whether or not
the procedure involved in a summary judgment
would give the judge the confidence to find
necessary facts and apply the relevant legal
principles to resolve the dispute…
xxxx xxxx xxxx
49. Consequently, this Court is of the view that
when a summary judgment application allows
the Court to find the necessary facts and resolve
the dispute, proceeding to trial would generally
not be proportionate, timely or cost effective. It
bears reiteration that the standard for fairness is
not whether the procedure is as exhaustive as aSignature Not Verified
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trial, but whether it gives the Court the
confidence that it can find the necessary facts
and apply the relevant legal principles so as to
resolve the dispute as held in Robert
Hryniak (supra).
50. In fact, the legislative intent behind
introducing summary judgment under Order
XIIIA of CPC is to provide a remedy independent,
separate and distinct from judgment on
admissions and summary judgment under Order
XXXVII of CPC.
xxxx xxxx xxxx
52. Consequently, this Court is of the opinion that
there will be „no real prospect of successfully
defending the claim‟ when the Court is able to
reach a fair and just determination on the merits
of the application for summary judgment. This
will be the case when the process allows the court
to make the necessary finding of fact, apply the
law to the facts, and the same is a proportionate,
more expeditious and less expensive means to
achieve a fair and just result.”
(Emphasis supplied.)
37. In Su-Kam, the Court also explained an earlier
judgment of the learned Single Judge
in Venezia (supra), wherein it was held that the
principles under Order XII Rule 6 and Order XIII-A
are similar, inasmuch as the Court is required to
consider whether the defences raised by the defendants
are a moonshine and sham. Under both provisions,
judgment may be entered without trial, if the Court
comes to the conclusion that the suit raises no genuine
triable issues. This was clarified in Su-Kam to the
extent that the remedies are independent, separate and
distinct, but were considered in a composite manner
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in Venezia as the plaintiffs therein had filed separate
applications under the two provisions.
38. Although the judgment of the learned Single Judge
in Su-Kam (supra) has been carried in appeal
[RFA(OS)(COMM) 1/2020], the Division Bench has
not stayed the operation of the judgment.
39. The judgment of a coordinate bench in Mehra
Cosmetics (supra) is also instructive as to the
approach to be applied. The Court noticed that under
the 2015 Act, a suit is supposed to be disposed of
without trial, in the absence of any real prospect of
success of either of the parties. In the context of a suit
alleging infringement of trademark and design, the
Court held as follows:
“15. This Court, in the interim order/judgment, on
a perusal of the registered design, has already
returned a finding, again though prima facie, that
there is no novelty in the design of the container
of the Petroleum Jelly, against copying of which
infringement is claimed, inasmuch as a large
number of other products are available in the
market in similar containers.
16. I have thus asked the counsel for the plaintiff,
how the decision on the said aspect can be any
different today and or what evidence would be led
by the plaintiff to establish the novelty in the
design, even if put to trial. The decision is unlikely
to be before the expiry of the period of validity of
the design.
17. The counsel for the plaintiff has contended
that since the plaintiff has a certificate of
registration of design, the same will be shown to
establish novelty. It is also contended that the
defendant no. 4 has since also obtained
registration of a similar design and the same will
be proved in evidence.
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18. The process of registration of a design is
materially different from that of a trade mark,
where an opportunity is given to others to object.
Merely because registration has been obtained, is
no proof, even prima facie, of the validity of the
design. Reference, if any required, in this regard
can be made to observations in Mohan Lal,
Proprietor of Mourya Industries v. Sona Paint &
Hardwares (2013) 200 DLT 322, Aashiana
Rolling Mills Ltd. v. Kamdhenu Ltd. (2018) 253
DLT 359 and Vega Auto Accessories (P)
Ltd. v. S.K. Jain Bros Helmet (I) Pvt. Ltd. 2018
SCC OnLine Del 9381. Similarly, merely because
the defendant no. 4 may have obtained
registration of the same design would not make
the design of the plaintiff novel.
19. A perusal of the certificate of registration of
design at Pages 17 to 22 of Part IIIA File also
shows the plaintiff to have claimed novelty “in the
shape and configuration of container” without
any particulars and the counsel for the plaintiff on
enquiry has only contended that the novelty is in
the ring at the centre of the container to handhold
the same. To say the least, the same is not even
claimed in the registration, particularly in respect
of the front side, back side, left side and right side
view of the container.
20. Thus, no purpose will be served in putting the
claim of the plaintiff for infringement of design
also to trial and the same can be summarily
dismissed.”
(emphasis supplied)
19. Applying the aforesaid law laid down to the facts of the present case,
it can be seen that the case of the Plaintiff is that he has rendered services to
the Defendants for more than 18 years and he has not been paid for the
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same. On the other hand, it is the case of the Defendants that there is no
written document to substantiate that case of the Plaintiff.
20. The Plaintiff is basing his case on Whatsapp chats between the Parties
and a chart filed by the Plaintiff indicating the number of hours and time
spent on the cases of the Defendants. In the opinion of this Court these
materials have to be proved in the Court of law by leading evidence by
cross-examining the Defendants. The documents filed by the Plaintiff unless
proved by leading evidence cannot be accepted as it is only an ipse dixit of
the Plaintiff. All the averments made by the Plaintiff in course of the
proceedings, would have to be tested in cross-examination of the Defendants
in order to ascertain its veracity and cannot be accepted merely on its face
value. Similarly, Whatsapp chats and the context in which the chats were
made etc., also would have to be tested at time of leading oral evidence.
21. The case of the Defendants is that the Plaintiff was not rendering
services for more than 18 years and he was only a junior Counsel assisting
senior Counsels and in the absence of any document to show that the
Defendants have admitted the terms of engagement and any acceptance
regarding hours put in by the Plaintiff in rendering services to the
Defendants, the claim of the Plaintiff is completely misconceived.
22. In the opinion of this Court, the Plaintiff has miserably failed to
substantiate that the Defendants have no defence at all. The case of the
Plaintiff has to be proved by substantiating documents in the course of trial.
23. Another question which has been raised is whether the present Suit is
a commercial Suit or not. A Co-ordinate Bench of this Court in Atmastco
Ltd. Vs. Mandeep Kalra, 2024 SCC OnLine Del 4467 has held that services
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rendered by an Advocate does not fall within the ambit of Commercial
Courts Act, 2015. This Court is not going into this question at this juncture,
in the present application filed by the Plaintiff under Order XIIIA of CPC
and the same shall be adjudicated upon at an appropriate stage.
24. Resultantly, the present application stands dismissed.
CS(COMM) 826/2023 & I.A. 22823/2023
List before the Ld. Joint Registrar on 23.07.2026.
SUBRAMONIUM PRASAD, J
MAY 20, 2026
Prateek/KG
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