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2025 Supreme(SC) 1839

SUPREME COURT OF INDIA
SANJAY KUMAR, ALOK ARADHE, JJ.
Novenco Building And Industry A/S – Appellant
Versus
Xero Energy Engineering Solutions Private Ltd. & Anr. – Respondents
Civil Appeal No. 13019 of 2025 (@ Out of S.L.P. (C) No. 2753 of 2025)
Decided On : 27-10-2025

Advocates appeared:
For the Petitioner(s): Mr. Gaurav Pachnanda, Sr. Adv. Mr. Pankaj Soni, Adv. Mr. Vineet Rohilla, Adv. Ms. Shradha Karol, Adv. Mr. Rohit Rangi, Adv. Mr. Debashish Banerjee, Adv. Mr. Ankush Verma, Adv. Mr. Tanveer Malhotra, Adv. Ms. Vaishali Joshi, Adv. Ms. Gurneet Kaur, Adv. Mr. Udbhau Gady, ADv. Mr. Rohit Lochav, Adv. Mr. Vikrant Narayan Vasudeva, AOR
For the Respondent(s): Mr. Shadan Farasat, Sr. Adv. Mr. Abhishek Babbar, Adv. Mr. Harshit Anand, Adv. Mr. Yash S. Vijay, AOR Mr. Shikhar Aggarwal, Adv.

IMPORTANT POINTS(1) Before a commercial dispute is filed before court, alternative means of resolution of dispute are adopted, so that only the most trying cases come before courts.(2) Court must look beyond time lag and evaluate substance of plea for interim protection – Insistence of pre-institution mediation in a situation of ongoing infringement, in effect, would render plaintiff remediless.

Headnote:

(A) Commercial Courts Act, 2015 – Section 12A – Urgent interim relief – Action for infringement of Intellectual Property Rights – Rejection of plaint for non-compliance with Section 12A – Before a commercial dispute is filed before court, alternative means of resolution of dispute are adopted, so that only the most trying cases come before courts – Plaintiff can be exempted from requirement of Section 12A only when plaint and documents attached with it clearly show a real need for urgent interim intervention – A proforma or anticipatory prayer for urgent relief used as a device to skip mediation will be ignored and court can require parties to comply with Section 12A of Act – Court is not concerned with merits of urgent relief, but if relief sought seems to be plausibly urgent from standpoint of plaintiff court can dispense with requirement under Section 12A of Act. (Paras 16 and 20)

(B) Commercial Courts Act, 2015 – Section 12A – Interim Inunction – Suit alleging continuing infringement of patent and design rights – In actions alleging continuing infringement of intellectual property rights, urgency must be assessed in context of ongoing injury and public interest in preventing deception – Mere delay in institution of a suit by itself, does not negate urgency when infringement is continuing – Mere delay in bringing an action does not legalise an infringement and same cannot defeat right of proprietor to seek injunctive relief against dishonest user – Accompanying material demonstrates that such infringing activity is continuing and causing immediate and irreparable harm to appellant’s business reputation, goodwill and proprietary rights – Urgency is inherent in nature of wrong and does not lie in age of cause but in persistence of peril – Intellectual property disputes are not confined to private realm – When imitation masquerades as innovation, it sows confusion among consumers, taints market place and diminishes faith in sanctity of trade – Public interest becomes moral axis upon which urgency turns – Public interest element, need to prevent confusion in market and to protect consumers from deception further imparts colour of immediacy to reliefs sought – Appellant’s prayer for injunction cannot be characterised as mere camouflage to evade mediation – It is a real grievance founded on continuing nature of infringement and irreparable prejudice likely to be caused by delay – Court must look beyond time lag and evaluate substance of plea for interim protection – Insistence of pre-institution mediation in a situation of ongoing infringement, in effect, would render plaintiff remediless allowing infringer to continue to profit under protection of procedural formality – Section 12A of Act was not intended to achieve such kind of anomalous result – Impugned judgments quashed and set aside and Commercial Suit restored to file of High Court to be proceeded with on merits in accordance with law. (Paras 21, 22, 24, 26 and 27)

Facts of the case:
Present appeal calls for determination of expression ‘contemplates any urgent interim relief’ in Section 12A of Commercial Courts Act, 2015 in its application to an action for infringement of intellectual property rights.
Issue which arises for consideration in this appeal is whether a suit alleging continuing infringement of patent and design rights, accompanied by a prayer for interim injunction, can be said to contemplate urgent relief within meaning of Section 12A of the Act, notwithstanding certain delay in its institution.

Findings of Court:
Single Judge as well as Division Bench of High Court erred in construing test for urgent relief enumerated in Section 12A of Act, in as much as courts have proceeded to examine entitlement of appellant to urgent relief based on merits of the case rather than looking at the urgency as is evident from the plaint and documents annexed thereto from standpoint of plaintiff.
Impugned judgment dated 28.08.2024 of Single Judge in Commercial Suit No. 13 of 2024 and judgment dated 13.11.2024 of Division Bench of High Court in Commercial Appeal No.1 of 2024 are quashed and set aside. Commercial Suit No. 13 of 2024 is restored to file of High Court to be proceeded with on merits in accordance with law.

Result : Appeal allowed.

Legal Category Hierarchy

  • practice and procedure
    • commercial courts act, 2015
  • intellectual property
    • infringement

Table of Contents

1. Suit for infringement of patent and design rights — rejection of plaint for non-compliance with pre-institution mediation under Section 12A, Commercial Courts Act, 2015. (Para 4 , 5 , 6 , 7 , 8 , 9 )

2. Whether continuing infringement of intellectual property rights justifies exemption from mandatory pre-institution mediation under Section 12A, Commercial Courts Act, 2015, despite delays in filing. (Para 13 , 14 )

3. Urgency in intellectual property disputes is inherent in continuing infringement and public interest in preventing consumer deception, regardless of the time elapsed since the cause of action. (Para 21 , 22 , 23 , 24 , 25 )

4. In continuing intellectual property infringement actions, urgency is assessed by ongoing injury and public interest; mere delay in institution does not negate the need for urgent relief. (Para 26 )

5. Impugned judgments set aside and commercial suit restored to the High Court for adjudication on merits. (Para 27 , 28 )

6. Does the requirement for pre-institution mediation under Section 12A of the Commercial Courts Act, 2015, apply to all commercial suits?

Yes, Section 12A makes pre-institution mediation mandatory for commercial suits unless the suit contemplates urgent interim relief. Non-compliance generally renders the plaint institutionally defective and may lead to its rejection. (Para 15 , 16 , 17 , 20 )

7. How is the urgency for interim relief determined to exempt a plaintiff from pre-institution mediation under Section 12A?

The court examines the plaint, pleadings, and documents from the plaintiff's standpoint to see if urgent relief is plausibly contemplated. The test is not whether the relief is ultimately granted, but if the need for it is genuine and not a device to bypass mediation. (Para 18 , 19 , 20 )

8. Does a delay in filing a suit for intellectual property infringement negate the urgency required to bypass pre-institution mediation?

No. In cases of continuing infringement, urgency is inherent in the ongoing injury and the public interest in preventing market deception. Mere delay in instituting the suit does not negate urgency when the infringement persists. (Para 22 , 23 , 24 , 25 , 26 )

JUDGMENT

ALOK ARADHE, J.

Leave granted.

2. The appeal calls for determination of the expression ‘contemplates any urgent interim relief’ in Section 12A of the Commercial Courts Act, 2015 (hereinafter, referred to as ‘the Act’) in its application to an action for infringement of intellectual property rights.

3. This appeal is directed against the judgment dated 13.11.2024 in Commercial Appeal No. 1 of 2024 passed by Division Bench of the High Court of Himachal Pradesh, by which it has dismissed the appeal of the appellant and has affirmed the order dated 28.08.2024 in Commercial Suit No. 13 of 2024 by a learned Single Judge, rejecting the plaint of the appellant for non-compliance with Section 12A of the Act.

FACTUAL MATRIX:-

4. Facts giving rise to filing of this appeal can be summarised as under :-

The appellant is a Danish company incorporated under the laws of Denmark. The appellant is engaged in manufacture of highly efficient industrial fans, marketed under the Brand ‘Novenco ZerAx’. According to the appellant, the said brand was developed after an investment of approximately 3.66 million euros between 2007 and 2015. The appellant secured several patents and design registrations to secure its innovation in India and abroad.

5. A dealership agreement was executed on 01.09.2017 between the appellant and respondent No.1, Xero Energy Engineering Solutions Pvt. Ltd., Hyderabad (hereinafter, referred to as ‘Xero Energy’), for marketing and sale of Novenco ZerAx fans across India. According to the appellant, Xero Energy’s Director, in violation of distribution agreement, incorporated respondent No.2, Aeronaut Fans Industry Pvt. Ltd. (hereinafter, referred to as ‘Aeronaut Fans’), for manufacture and sale of identical fans under deceptively similar name and appearance. The appellant discovered sometime in July, 2022 that Xero Energy started marketing competing products.

6. The appellant sent multiple communications to Xero Energy on 22.08.2022, 30.08.2022 and 14.10.2022 seeking clarification. However, no explanation was offered by Xero Energy. The appellant on 14.10.2022 terminated the dealership. Thereafter, it sent a cease-and-desist notice dated 23.12.2022 to Aeronaut Fans, who sent replies dated 01.02.2023 and 03.03.2023 to the notice. Aeronaut Fans filed a petition under Section 148A CPC before the Madras High Court and an email was sent on 15.05.2023 by counsel of Aeronaut Fans.

7. The technical expert of the appellant on 06.12.2023 inspected the fans installed by Aeronaut Fans at Cavendish Industries and Hero Moto Corp, Uttarakhand, and submitted his affidavit on 06.02.2024 confirming the infringement by Aeronaut Fans. The appellant thereafter obtained patent and design certificates in March-May, 2024.

8. The appellant on 04.06.2024 filed a commercial suit, namely, COMS No. 13 of 2024, before the High Court alleging infringement of its patent and design by the respondent. The appellant along with the plaint also filed an application under Order XXXIX Rules 1 and 2 seeking an ad interim injunction, and an application under Section 151 of the CPC seeking exemption from pre-institution mediation as mandated under Section 12A of the Act.

9. The respondents filed an application under Order VII Rule 10 of the CPC for return of the plaint and an application under Order VII Rule 11 for rejection of the plaint, inter alia, on the ground that no urgency was involved in the matter and non-compliance with Section 12A of the Act was fatal to the suit. The respondents also filed a reply to the application seeking injunction.

VIEWS OF HIGH COURT:-

10. The learned Single Judge of the High Court passed two separate orders on 28.08.2024. By the first order, the learned Single Judge rejected the plea for return of plaint. However, by the second order, the learned Single Judge held that (i) there was a delay of six months between the inspection of fans installed by Aeronaut Fans, in December 2023 and the filing of the suit in June, 2024, (ii) the plea of

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Judicial Analysis

No cases in the provided list are identified as overruled, reversed, or otherwise treated as bad law. The source material does not contain any language indicating that any of the listed precedents have been invalidated or repudiated by subsequent decisions.

Patil Automation Private Limited VS Rakheja Engineers Private Limited - 2022 7 Supreme 607: This case is categorized based on its articulation of a mandatory statutory rule. It states that "Section 12A of Commercial Courts Act, 2015 is mandatory – Any suit instituted violating mandate of Section 12A must be visited with rejection of plaint under Order VII Rule 11 – This power can be exercised even suo motu by court." The language "must be visited with rejection" and "power can be exercised even suo motu" establishes a strict, mandatory procedural standard. The additional note on "Alternate Dispute Resolution – There is need to have a dedicated bar for mediation" further indicates its role in defining procedural infrastructure.

Dhanbad Fuels Private Limited VS Union Of India - 2025 0 Supreme(SC) 835: This case is categorized based on its treatment of temporal applicability. It provides that "The Commercial Courts Act mandates pre-institution mediation under Section 12A, which is to be enforced prospectively from 20.08.2022, allowing suits filed before this date to proceed without dismissal for non-compliance." The explicit use of "prospectively" and the allowance for pre-existing suits to proceed indicates a savings or transitional construction, distinguishing it from the mandatory rejection rule in Patil Automation Private Limited VS Rakheja Engineers Private Limited - 2022 7 Supreme 607.

Asian Hotels North Limited vs Exclusive Capital Limited - 2026 Supreme(Online)(Del) 16526: This entry is categorized as uncertain because it is a fragmented reference to judicial decisions (a Single Judge and a Division Bench) in *Novenco Building & Industry A/S v. Xero Energy Engg. ... Solutions (P) Ltd., 2024 SCC OnLine HP 4266*. The text does not explicitly state the treatment of the precedent (e.g., followed, distinguished, overruled). It merely cites the case name and date without any indicia of judicial treatment such as "overruled," "reversed," or "followed." Therefore, its specific treatment pattern cannot be determined from the provided context.

Asian Hotels North Limited vs Exclusive Capital Limited - 2026 Supreme(Online)(Del) 16526: The treatment of this case is unclear because the provided text is a partial citation referencing *Novenco Building & Industry A/S v. Xero Energy Engg. ... Solutions (P) Ltd., 2024 SCC OnLine HP 4266* and its Division Bench treatment, but it contains no explicit language (such as "overruled," "reversed," "followed," or "distinguished") that would indicate how the precedent has been treated in subsequent decisions. The fragmentary nature of the entry prevents definitive categorization.

**Source :** Asian Hotels North Limited vs Exclusive Capital Limited - Delhi Dhanbad Fuels Private Limited VS Union Of India - Supreme Court MIDAS HYGIENE INDUSTRIES (P) LTD. VS SUDHIR BHATIA - Supreme Court Yamini Manohar VS T. K. D. Keerthi - Supreme Court Patil Automation Private Limited VS Rakheja Engineers Private Limited - Supreme Court

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