The requirement of pre-institution mediation under Section 12-A of the Commercial Courts Act, 2015 is mandatory unless urgent interim relief is demonstrated, which must be assessed from the plaintiff's perspective.

JUDGMENT :

Manish Pitale, J. - By this application filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC), the defendant seeks rejection of plaint on the short ground of non-compliance of section 12-A of the Commercial Courts Act, 2015, on the part of the plaintiff. It is the case of the defendant that since a perusal of the plaint itself shows that the present suit does not contemplate any urgent interim relief, the plaintiff ought to have first exhausted the remedy of pre-institution mediation as per section 12-A of the said Act, before instituting the present suit. According to the defendant, the requirement of section 12-A of the said Act is mandatory in nature and hence, the present application ought to be allowed, thereby rejecting the plaint.

2. The plaintiff has filed the present commercial suit, praying for relief of permanent and mandatory injunction, restraining the defendant from infringing the registered trademark of the plaintiff and also, from passing off its goods as those of the plaintiff. Alongwith the aforesaid prayers, the plaintiff has also prayed for interim reliefs in the plaint as well as in a separate application for grant of interim reliefs.

3. The pleadings in the application for interim reliefs were completed, but since the defendant filed the present application for rejection of plaint, this Court has taken up the said application for consideration, before considering the application for interim reliefs. If the contentions raised on behalf of the defendant are accepted, the plaint itself would be rejected and there would be no question of considering the application for interim reliefs moved on behalf of the plaintiff.

4. In support of the instant application, Mr.Rashmin Khandekar, learned counsel appearing for the applicant/defendant submitted that by accepting the contents of the plaint in its entirety and particularly, paragraph No.20 pertaining to cause of action, it becomes evident that the plaint in the present case, does not even contemplate urgent interim reliefs and therefore, the plaintiff was mandatorily required to exhaust the remedy of pre- institution mediation under Section 12-A of the said Act before instituting the present suit. Since the plaintiff failed to do so, on this short ground itself, the application of the defendant deserves to be allowed and the plaint deserves to be rejected.

5. It was submitted that in the present case, the plaint itself proceeds on the basis that the cause of action for the plaintiff first arose in or around September 2015. It is the case of the plaintiff that on 19.09.2015, it issued a cease and desist notice to the defendant. A further notice dated 12.10.2015 was also issued on behalf of the plaintiff to the defendant for compliance with the earlier cease and desist notice dated 19.09.2015. On 14.10.2015, the defendant issued a response letter denying the allegations made by the plaintiff. According to the learned counsel for the defendant, the plaintiff became aware, as far back as in October 2015, about the stand of the defendant and if the plaintiff really desired urgent interim reliefs, the suit ought to have been filed immediately thereafter. Instead, the plaintiff chose not to take any action in the matter. It was only in May 2018 that the plaintiff chose to file a police complaint against the defendant for alleged infringement of its mark. Even at this stage, the plaintiff chose not to initiate any civil action against the defendant. The criminal proceedings have remained pending and after about 8 years of accrual of cause of action, the plaintiff chose to file the instant suit in August 2023.

6. It is submitted on behalf of the defendant that the plaintiff took a conscious decision and chose the remedy under criminal law and that too in May 2018, despite having issued the cease and desist notice to the defendant as far back as in September 2015. The criminal proceedings remained pending and it is casually stated in the plaint tha