Section 12A of the Act of 2015 is mandatory, and a commercial suit of specified value which does not contemplate any urgent interim relief under the Act of 2015, cannot not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

JUDGMENT

Nitin Jamdar, J. - The Respondent filed a commercial summary suit in the Commercial Division of this Court for a decree against the Appellant for Rs.5.54 crores with accrued interest. In this suit, the Respondent took out a summons for judgment. By the impugned order, the learned Single Judge, as Commercial Division, disposed of the summons for judgment granting leave to defend to the Appellant but upon a condition of depositing Rs.5.54 crores. Being aggrieved, the Appellant has filed this Commercial Appeal.

2. The Appellant-Defendant requested the Respondent-Plaintiff for rendering financial assistance and a business loan. The Respondent advanced a sum of Rs.5.00 crores to the Appellant. The loan was to be paid along with interest at 19% per annum. The Respondent issued a cheque for Rs.5.00 crores dated 1 January 2011 in favour of the Appellant. The Appellant encashed the cheque. The Appellant issued a Bill of Exchange dated 3 January 2011 in favour of the Respondent as a security in the sum of Rs.5.00 crores. The Appellant paid interest on the loan to the Respondent as agreed till 9 December 2016. On 9 December 2016, the Appellant wrote to the Respondent to reduce interest to 12% per annum and acknowledged the loan of Rs.5.00 crores. The Appellant, through this communication, sought confirmation of the revised terms. The Appellant stated that Rs.27,22,192/- will be paid as interest at the rate of Rs.12% per annum. The Appellant gave an undertaking on 20 December 2016 acknowledging the loan. The Appellant issued two post-dated cheques, one dated 1 January 2018 for the sum of Rs.5 crore and the other dated 31 December 2017 for Rs.54 lakh towards principal and interest, respectively. The Respondent deposited the cheques with the bankers on 26 March 2018. The cheques were dishonoured on 27 March 2018 with the remark "Funds Insufficient". The Respondent issued notice through his advocate to the Appellant on 17 April 2018 under Section 138 of the Negotiable Instruments Act, 1881. The Appellant made no payment.

3. The Respondent filed Commercial Summary Suit No.972/2019 on 6 July 2019 seeking a decree against the Appellant in the sum of Rs.5.54 crores with an interest of an amount of Rs.1,49,75,342.47 at the rate of 12% from 1 January 2017 till 30 June 2019. Writ of summons was served, and the Appellant filed an appearance under Order XXXVII Rule 2(3) of Code of Civil Procedure, 1908. Summons for Judgment bearing No.45/2019 was filed in the Summary Suit on 16 August 2019. The delay in filing the reply to the summons for judgment was condoned on 10 December 2019. The Appellant filed an affidavit in reply on 11 December 2019. The Respondent filed a rejoinder on 18 December 2019 and a sur-rejoinder by the Appellant on 10 January 2020. When the matter came up on 4 November 2020 before the Commercial Division (the learned Single Judge), it was adjourned at the request of the Appellant to explore settlement. Since the settlement did not take place, the matter was heard on merits by the learned Single Judge.

4. Before the learned Single Judge, the Appellant advanced various arguments. First, the suit is barred under the Maharashtra Money Lending (Regulation) Act, 2014. Second, the suit is barred for non-compliance with Section 12A of the Commercial Courts Act. Third, the plaint does not comply with Rule 2(a) of Order VII of the Code of Civil Procedure. The learned Single Judge rejected all the contentions raised by the Appellant. The learned Single Judge observed that the suit is not barred under the provisions of the Act of 2014, nor it can be said that the plaint does not comply with Rule 2(a) of Order 7 of C.P.C. The learned Single Judge observed that Section 12A of the Act of 2015 is not mandatory and is procedural and the substantial compliance of the same is enough. The learned Single Judge opined that Section 12A is a procedural provision, and there is no absolute embargo on instituting the suit unless Plaintiff exhausts the r