The court ruled that substantial compliance with pre-litigation mediation is sufficient under Section 12A of the Commercial Courts Act, 2015, allowing a case to proceed without re-initiating mediation when prior attempts have been unsuccessful.

ORDER :

(M. NAGAPRASANNA, J.)

The petitioners are before this Court calling in question an order dated 28-02-2025 passed by the IV Additional District and Sessions Judge, Mangalore in Commercial O.S.No.302 of 2024 whereby application filed by the petitioners/defendants under Order VII Rule 11 of the CPC comes to be dismissed.

2. Facts, in brief, germane are as follows: -

The petitioners are the defendants/tenants and respondent is the plaintiff/owner. The plaintiff institutes a suit in O.S.No.245 of 2023 seeking delivery of vacant possession of the suit schedule property and clearance of arrears of rent. In the suit, for about 6 months, the matter was adjourned for settlement between the parties. An application comes to be filed for return of the plaint on the ground that the issue in the lis has to be adjudicated before the Commercial Court under the COMMERCIAL COURTS ACT , 2015. The application is answered and the plaint is returned to be presented before the Commercial Court. It then becomes a commercial original suit in Commercial O.S.No.302 of 2024. Once the plaint is returned and presented before the Commercial Court, an application comes to be filed by the defendants under Order VII Rule 11 of the CPC seeking rejection of the plaint on the score it is barred by law, as the mandate of the COMMERCIAL COURTS ACT insofar as it concerns Section 12A is not followed. The concerned Court, by the impugned order, rejects the said application and holds that there was no infirmity in the entertainment of the suit, notwithstanding the fact of non-compliance with Section 12A of the COMMERCIAL COURTS ACT . The rejection of the application filed by the defendants is what has driven them to this Court in the subject petition.

3. Heard Sri Vigneshwar S. Shastri, learned senior counsel appearing for the petitioners and Sri Dhananjay V. Joshi, learned senior counsel appearing for the respondent.

4. The learned senior counsel Sri Vigneshwar S. Shastri appearing for petitioners would vehemently contend that the mandate of law is that pre-institution mediation and settlement as per Section 12A is mandatory. It is immaterial if settlement talks were on before the plaint was presented before the Commercial Court. He would contend that unless Section 12A is preceded before entertainment of the suit, the commercial O.S. is not maintainable. He would seek to place reliance upon plethora of judgments on the issue.

5. Per contra, the learned senior counsel Sri Dhananjay V. Joshi would refute the submissions in contending that Section 12A though depicts that no commercial O.S. shall be initiated prior to compliance with Section 12A, he would submit that all nuances of pre-institution mediation and settlement has already taken place before the concerned Court when it was at the stage of original suit. Today to send it back again for nothing would become a travesty. He would, therefore, submit that there is nothing wrong in the order passed by the concerned Court. He would seek dismissal of the petition. To buttress his submission, he would also place reliance upon several judgments of the Apex Court and constitutional Courts. The judgments so relied on by each of the parties would be considered qua their relevance in the course of the order.

6. I have given my anxious consideration to the submissions made by the respective learned senior counsel and have perused the material on record.

7. The issue in the lis