Adithya Narayana Vojja and Ayushmaan Ashutosh Singh
Abstract
This article examines the structural vulnerabilities of the Supreme Court’s nine non-exhaustive guidelines for summary judgment laid down by the apex court. It argues that the guidelines produce an irreconcilable tension between evidentiary scrutiny and the prohibition on mini-trials, compounded by the absence of a documentary authentication mechanism, exposed by the rise of AI-fabricated evidence. The framework also conspicuously omits the existing middle ground present in the CPC and the conditions under Guideline (ix) for a full trial are present in almost every commercial suit, making it inconsistent with the English precedents and Rule 4(3)(e) of Order XIII-A. The article proposes targeted remedies to address these doctrinal and procedural gaps.
Introduction
Between the perennial tension of the twin sayings ‘justice delayed is justice denied’ and ‘justice hurried is justice buried’ stands a question Indian commercial courts have consistently grappled with. When does a case require the full machinery of a trial, and who decides?
Recently, the Hon’ble Supreme Court (SC) addressed this in Reliance Eminent Trading and Commercial Private Limited v. Delhi Development Authority (Reliance Eminent Trading), granting summary judgment under Order XIII-A of the Code of Civil Procedure, 1908 (CPC), and laid down nine non-exhaustive guidelines to govern the use of summary judgment jurisdiction.
While the decision is sound on its facts, the guidelines are not confined to them. They regulate how commercial courts exercise power under Order XIII-A on documentary evidence alone, without the pre-trial safeguards that the English Civil Procedure Rules, 1998 (CPR) built to accompany the procedure that India transplanted as Order XIII-A. This article examines how the guidelines leave that power structurally vulnerable.
The Reliance V. DDA Precedent And The Standard Of Rule 3
In the instant case, the appellant, a bona fide purchaser, paid a sum of ₹164.91crore for a commercial plot and subsequently discovered that the title was rendered void ab initio after the underlying land acquisition lapsed owing to the respondent’s admitted failure in defaulting payment to the original landowner.
The Delhi High Court (DHC) rejected the appellant’s application for summary judgment under Order XIII-A on the ground that possession constituted a triable issue requiring oral evidence. Reversing this decision, the SC found the respondent’s defence on limitation, non-joinder, and possession to be unsustainable in law, and laid down the nine non-exhaustive guidelines, anchored in the twin conjunctive tests of Rule 3 of Order XIII-A. One asks whether the opposing party has any real prospect of success, and the other asks whether any compelling reason exists to proceed to a full trial.
The Evolution And Anatomy Of Order XIII-A
Summary judgment was crafted to prevent commercial litigation from being paralysed by prolonged trials, when the documentary clarity renders oral evidence redundant. Summary judgment under Order XIII-A of the CPC empowers both parties in commercial disputes of specified value to seek resolution on documentary evidence alone. The exercise, as the Court recognised, is inherently exceptional.
Its lineage traces directly to Part 24 of the CPR 1998, where Swain v. Hillman crystallised the governing standard. A ‘real prospect of success’ requires a realistic, rather than fanciful, prospect of success. In the case of Three Rivers District Council v. Bank of England, the Court held that complex factual disputes resist summary judgment because resolving them would require the Court to conduct a mini-trial, which is prohibited. Order XIII-A inherits this caution principle but does not procedurally enforce it.
India had a narrower antecedent in Order XXXVII of the CPC, confined to liquidated claims on negotiable instruments and available only to plaintiffs. Order XIII-A extends to any commercial dispute of specified value and is available to both parties. However, when it comes to practice, there is a stark difference between the two jurisdictions. Indian courts have historically treated summary judgement as an exceptional tool, as is evident from precedents like Bright Enterprises Pvt.Ltd. v. MJ Bizcraft LLP (Bizcraft) where it was established that summary judgement is available only for exceptional circumstances and must be exercised with great caution. The guidelines represent the only attempt at liberalising the provision, yet reverts it back to its exceptional nature.
The English courts use summary judgment as a routine commercial tool. In Swain v. Hillman, Lord Harry Woolf held that this power should be exercised wherever it is just and expedient to do so. Also, the Court established strict burden on the defendants to demonstrate substantive merit in proceeding with trial, superficial reasoning is untenable. In Easyair Ltd v. Opal Telecom Ltd, the Court held that the defendant cannot merely assert that more evidence will emerge once the trial starts, to dismiss the application for summary judgment. The party must specify what evidence would emerge at trial, why it is not currently on record, and how it would change the outcome and why it is not on record presently. English courts place a burden on the defendant to earn a trial, rather than the claimant to justify avoiding the one.
Institutional Vulnerability And The Evidentiary Crisis Of Summary Procedure
The absence is not merely historical but produces fractures in the guidelines laid down. The vulnerability of the guidelines is internal to the standard itself. Guideline (iv) of paragraph 59 imposes two mandatory and irreconcilable commands on courts: to not accept documents on face value, and to avoid conducting a mini-trial. The tension is worsened by the SC at paragraph 57, which directs that facts be taken at face value “until any contemporaneous document indicates otherwise.” The clause creates a blind spot. Where fabricated evidence is the only documentation available, no contemporaneous document exists to contradict it, then the literal application of the standard would convert such fabrication into procedural advantage. As Indranil Deshmukh et al. observed that the test in Su-Kam Power Systems Ltd. v. Kunwer Sachdev (2019) (Su-Kam), required the courts to have “confidence that they can find the necessary facts” before they could proceed summarily, a threshold that has been eroded by the Court’s “grasp the nettle” directive in paragraph 56 of Reliance Eminent Trading. The nine guidelines fail to provide confidence in documentary authenticity, a prerequisite for confidence in documentary findings.
Order XIII-A was enacted in 2015, at a time when AI tools capable of generating synthetic contracts and altered invoices did not exist at commercial scale. However, the evidentiary landscape has transformed. In March 2026, the SC issued notices to the Attorney General, after the trial court dismissed objections by relying on four non-existent AI-generated judgments in a civil commercial proceeding. Directing courts to decide on documents alone without detailed investigation in the absence of mandatory authentication framework, leaves the guidelines exposed to exploitation they were designed to prevent.
Order XIII-A’s judicial trajectory reveals a trend of increasing liberalisation unaccompanied by commensurate procedural development. The Court in Bizcraft adopted a cautious use of the provision, confining it to genuinely exceptional cases, Su-Kam liberalised this, and Reliance Eminent Trading instructs courts to ‘grasp the nettle’ turning a discretionary exception into a near-mandate to dismiss defences characterised as fanciful. Judicial confidence in the provision expanded at each step without a commensurate increase in procedural safeguards. In the instant case the DHC and the SC arrived at divergent outcomes based on the same facts.
A problem arises when Rule 4(2) of Order XIII-A gives the respondent a period of thirty days after applicant files an application for a summary judgment. For example, if the applicant files fabricated evidence, the same could be contested by the respondent within the same thirty-day period through a reply under Rule 4(3). It escalates when the judge begins assessing the documentary evidence, followed by the “respondent’s” submission of documentary evidence in their reply under Rule 4(3)(b) to contest applicant’s summary judgement request. In this situation, applicant does not get an opportunity to contest the evidence. The judge makes the final decision based on a preliminary assessment of evidence, without cross-examination or forensic analysis to avoid a mini trial. An evidentiary gap emerges at the stage the provision was meant to be conclusive.
The obvious counter is that safeguards already exist, under Order VII Rule 14 or Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA). But the argument does not address the problem at hand, as they contain mere filing obligations and a certification that an electronic record was a genuine output produced by a computer system. A digitally manipulated contract carries a valid Section 63 certificate. Order XIII-A Rule 5, which permits a party to rely on additional documentary evidence before the summary hearing, is devoid of verification mechanism. Applying the law and economics framework, the provision optimises for direct costs like time and litigation costs but remains indifferent to the error costs a party bears due to decisions based on incomplete knowledge. Define “X” as the probability that the documents are authentic and “D” as average direct costs avoided. “Y” as the probability that the documents are fabricated or false and “E” as the average error cost of a wrong judgment. To optimise costs the product of “X” and “D” must be greater than the product of “Y” and “E” (X.D > Y.E), but with the rise in probability of “Y” as documented reports illustrate, and with no real mechanism to verify, the assumption of the legal system in the authenticity of the documents produced as a given rather than a variable is wrong. Such assumptions lead to a reduction of direct costs but massively increase the error costs. The consequences include loss of contractual rights, assets, and clients and are irreversible in many situations. Let us take an illustrative example, where the probability of “X” is 70 percent (0.7) and “Y” is 30 percent (0.3) and the average direct costs and error costs are Rs.30,000 and Rs.1,00,000 respectively. Error costs would be greater than direct costs due to the magnitude of losses they impose on the affected party. Across ten cases where a court exercises the summary provision, seven would yield the right outcome and three would not, so the total cost saved is seven multiplied by 30,000, which equals Rs.2,10,000, while the error costs would amount to three multiplied by 1,00,000, which equals Rs.3,00,000. In pursuit of saving Rs.2,10,000 the courts are making a trade off with Rs.3,00,000 (here X.D < Y.E) in error costs which outweigh the direct costs saved making it both an economic and procedural failure.
Another concern with the guidelines is the omission of middle ground, under Rule 7 of Order XIII-A, which empowers the court to pass a conditional order of continuing with trial, imposing any condition, deposit or security on party whose claim is possible but improbable. By omitting this middle-ground the court has collapsed a tripartite spectrum into an on-off switch between summary dismissal and full trial. Courts bound by the apex court’s framework are left with no guidance in cases where defences are weak but not entirely fanciful.
A further vulnerability lies in Guideline (ix), which directs courts to refer to a full trial in cases where there is a need to (a) evaluate the credibility of deponents, (b) weigh the evidence, or (c) draw reasonable inferences. These elements are nearly present in every commercial suit, making it a loophole for parties to delay a legitimate summary judgment. In Doncaster Pharmaceuticals v. Bolton Pharmaceutical (Doncaster) the Court, in paragraph 18, held that even when there is no conflict of facts in evidence, the aspect a judge has to analyse is “whether a fuller investigation into facts of case would add or alter the evidence available to trial judge and so affect the outcome”. In Foglia v. Family Officer Ltd the Court has explicitly held that weighing of evidence cannot be the sole ground for full trial in summary judgment. The provision internally contradicts Order XIII-A Rule 4(3)(e), which requires the defendant’s reply to identify “what further evidence shall be brought on record at trial that could not be brought on record at the stage of summary judgment.” Rule 4(3)(e) only makes sense if the court evaluates whether the defendant’s claimed future evidence is real or speculative, which in itself is a credibility assessment at the summary stage. Guideline (ix)(b) prohibits such an assessment at the summary stage, yet Rule 4(3)(e) implicitly demands it.
How To Bridge The Gap Within The Existing Architecture?
The structural gaps identified above can be remedied within the existing architecture of the Commercial Courts Act, 2015 (CCA) without any legislative overhaul. The evidentiary gap in Rule 5 can be closed by practice directions issued by the High Courts under Section 18 of the CCA, requiring parties to furnish a Forensic Report from an authorised body of the Court. Any party that wants to contest the authenticity of the documentary evidence must provide concrete technical grounds through a submission, rather than making unsubstantiated assertions. The party must provide technical anchors, such as file structure anomalies, altered cryptographic hashes, patterns indicative of serial generation, inconsistencies in cloud storage metadata, lack of watermarks, discrepancies in peripheral system logs, and other plausible grounds. If the Court is satisfied that a defence is legally possible based on the submissions, but needs further examination, then it can ensure balance by invoking middle ground under Rule 7. Rather than completely dismissing the application, the Court gives a conditional order, mandating the contesting party to deposit a security sum into the court, and then proceeds with a full trial. In this way parties trying to stall commercial proceedings will be penalised and at the same time a fair opportunity is provided to both parties to contest the authenticity.
To address the unpredictability gap, the SC should issue a practice direction, requiring every commercial court to address each of the nine guidelines laid down in Reliance Eminent Trading in its written order while granting or refusing a summary judgment. Judicial discretion is preserved by not codifying the guidelines as exhaustive conditions, while creating structured appellate reviewability. A court that ignores the guidelines can be corrected on appeal, and a court that addresses all grounds cannot be reversed merely for arriving at a different conclusion.
The problem identified under Guideline (ix) can be addressed by replacing the existing grounds with the English standard used in Doncaster. The question must change from whether the evidence need to be weighed, to whether a fuller investigation through trial would produce evidence materially different from what is currently on record. The standard must be read alongside Rule 4(3)(e) which already places a similar burden on the contesting party, and referral to a full trial must only be made when the Doncaster and the other English standards discussed have not been met.
Conclusion
The Court in Reliance Eminent Trading struck the balance its opening paragraph sought, at least on its particular facts. The nine guidelines are analytically sound, and the difficulty is not with what they say, but with what surrounds them. The absence of documentary verification mechanism, the use of the tripartite framework as a binary choice and the conditions under Guideline (ix) defeat the purpose of the provision. The fractures identified in the provision and guidelines can be addressed with the targeted remedies proposed, within the existing architecture through the CCA, without the need for legislative intervention. Only by adopting such a dynamic and robust system can the Courts “grasp the nettle” without falling prey to technological advancements. A provision that decides commercial disputes with finality, on documents alone, without using sufficient safeguards, is not a faster path to justice. It is a faster path to a decision. The two are not always the same thing.
Adithya Narayana Vojja and Ayushmaan Ashutosh Singh are both B.A. LL.B. (Hons.) students at Hidayatullah National Law University, Raipur.
NUALS Law Journal 