The Important Finding of the case:
Case Title: Surya Food and Agro Limited Vs Om Traders and another
- In India, adversarial system of judicial system is adopted and not
- The Court can not decide the case of party, which were not raised by the
- The Hon'ble Court can not pass a Summary Judgement under Order 13 A of
the Commercial Court Act suo moto. For that application is required to be
Neutral Citation No.2023/DHC/000445
Commercial Appeal No. RFA(OS)(COMM) 28/2019
Name of Court: High Court of Delhi
Name of Hon'ble Justice: Vibhu Bakhru and Amit Mahajan, JJ
The Partiee in the Appeal:
Appellant is the Plaintiff while Respondent is the Defendant in the subject
matter Suit bearing CS(COMM) 10/2019 titled as Surya Food and Agro Limited v. Om
Traders & Anr.
The Judgement Assailed:
- The Appellant filed the subject matter Suit on the basis of proprietary
rights in Trademark/ Trade Dess BUTTER DELITE.
- The Appellant sought relief of inter alia the permanent injunction
against user of Trademark/ Trade Dress BUTTER KRUNCH.
The Hon'ble Singh Judge was pleased to dismiss the Suit itself vide Judgement
dated 26.03.2019 on the grounds inter alia that the subject matter Trade Dress
is common to trade.
Brief Note on Judgement Assialed:
The unique fact of the Judgement was that the ground of the subject matter Trade
Dress, being common to trade, was even not raised by the Respondent.
Application of Adversarial system of adjudication by the Hon'ble Single
However, the Hon'ble Single Judge was pleased to dismissed the said suit after
recalling from his memory that the biscuits sold under the trademark s
"Britannia Tiger Biscuits" and "Britannia Vita Marie Gold" were also packaged in
Thus it was on the basis of its own recollection, the Hon'ble Court relied upon
a fact, which was neither relied upon by the Respondent nor forming part of the
The Judgement of the Hon'ble Division Bench:
The Hon'ble Division Bench was pleased to allow the Appeal and the subject
matter Suit was restored.
The Important Finding of the Hon'ble Division Bench:
Written By: Ajay Amitabh Suman,
- The Hon'ble Single Judge was wrong in dismissing the suit of the
Appellant summarily without the Respondent filing application under Order 13
A of the Commercial Court Act 2015.
- Filing of Application under Order 13 A of the Commercial Court Act 2015
is must for dismissal of the Suit under Order 13 A of the Commercial Court
- The Hon'ble Single was wrong in deciding the issue not raised by the
Respondent. It was not the case of the Respondent that subject matter Trade
Dress was common to trade. However not only discussed the isuue of the
subject matter Trade Dress being common to trade but also dismissed the suit
on that ground.
- The Hon'ble Single could have decided only those issues , at which
parties are at variance. The court can not picked up those issues and decide
the same, which have not been alleged by the Respondent.
- The Hon'ble Division Bench also observed that the Hon'ble Single Judge
was pleased to dismissed the said suit after recalling from his memory
that।the biscuits sold under the trademark s "Britannia Tiger Biscuits" and
"Britannia Vita Marie Gold" were also packaged in red colour.
- This observation made by the Hon'ble Single Judge was based on his own
recollection of the facts. These observations were not made on the basis of
facts alleged or put on record by the Respondent. The Hon'ble Division Bench
dismissed the Appeal on this ground also.
- While dismissing the Appeal, the Hon'ble Division Bench referred Bright
Enterprises Private Limited Anr.: 2017 SCC OnLine Del 6394 , wherein the
Division Bench therein had faulted the Trial Court f or rendering a decision
based on impressions and recollections of facts, which were not part of the
- In Bright Electrical Case , the distinction between adversarial system
and inquisitorial system has been explained that In India, proceedings
before a civil court are adversarial in nature and not inquisitorial. It
follows that the court is required to adjudicate matters at which the
parties are at variance.
- Thus in India, a court is supposed to decide the issues , ser up by one
party and denied by the another one.
- In the present case, though the Respondent set up its case by alleging
the competing trade dress are different. The issue of the Trade Dress being
common to trade was not set up by the Respondent.
- Hence the Hon'ble Single Judge was wrong in taking that issue himselves
and deciding the suit summarily on that ground.
IPR Advocate - Hon'ble High Court of
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treated as substitute for legal advise as there may be possibility of error in
perception, presentation and interpretation of facts and law involved therein
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