Alternate judge cannot hear review under Order XLVII Rule 5 CPC if original judge available post short leave; violation invalidates exparte review order lacking notice and grounds, distinguishing from appellate power.

JUDGMENT :

R.I. CHAGLA J.

1. By this Commercial Appeal from Order, the Appellant / Original Defendant has challenged the exparte order dated 25th April, 2025 passed by the Presiding Judge, Court No.2, City Civil Court, Dindoshi (alternate Judge, Court No.3), in Review Application No.2 of 2025 in Commercial Suit No.149 of 2025.

2. By the impugned Order, the alternate Judge has set aside the order dated 17th April, 2025 (Original Order) passed by the Presiding Judge, Court No.3, City Civil Court, Dindoshi exparte and in review by inter alia allowing registration of the Suit without the Respondent / Original Plaintiff complying with the mandatory requirement of pre-institution mediation under Section 12A of the Commercial Court’s Act, 2015.

3. The relevant facts are as under:-

(i) The Appellant is a Corporation based in Ohio and is engaged in the manufacturing and distribution of pneumatic hose and tubing products.

(ii) The Appellant vide multiple purchase Orders between August, 2022 to September, 2024 purchased fitting and tubing products from the Respondent for use in air brake systems. The Appellant sold the products it purchased from the Respondent to its clients based in Ohio and in other parts of United States.

(iii) The Appellant’s customers informed it by Email dated 4th September, 2024 that they discovered quality defects in the products. The Email was forwarded by the Appellant to the Respondent immediately.

(iv) Thereafter correspondences were exchanged between the Appellant and Respondent in September, 2024 whereby the Appellant requested the Respondent to furnish lab reports and other documents demonstrating that Respondent’s tubing complied with the industry standards in North America. It is the Appellant’s case that the Respondent failed to provide any such response and / or attend meetings held by the Appellant and its customers to resolve the quality issues in the tubing products.

(v) In view of the Appellant having no clarity and / or information from the Respondent regarding the quality issues encountered in the Respondent’s tubing products, the Appellant had in public interest and in compliance with the laws applicable in the United States issued a press release dated 13th September, 2024 inter alia stating that it had received a report of potential deterioration of the tubing (supplied by the Respondent), when exposed to prolonged sunlight and is evaluating the said issue. The Appellant recommended that until such evaluation, any sale or use of the tubing be suspended. Pertinently, the Respondent’s name was not mentioned in the press release.

(vi) The Appellant’s customer, viz. Stoughton Trailers LLC (“Stoughton”) engaged a third party lab viz. Element Materials Technology to get the Respondent’s tubing products tested for UV and Ozone resistance tests and to ascertain their compliance with the industry standards. From the test report dated 7th October, 2024, it was found that one sample of Respondent’s tubing (from the production lot dated 6th January, 2024) failed the UV resistance test.

(vii) Based on the test report obtained by the Appellant, the Appellant submitted the part 573 Safety Recall Report (“Recall Report”) in respec