The judgment establishes the mandatory nature of pre-institution mediation under Section 12A of the Commercial Courts Act, emphasizing the retrospective effect of the provision and the distinction between urgent and non-urgent relief.

JUDGMENT

Debangsu Basak, J. - Two applications have been heard analogously as they relate to the same suit. By IA No. GA 7 of 2021. The defendant Nos. 1 and 2 have applied for rejection of the plaint and revocation of leave granted under clause 12 of the Letters Patent, 1865 and for other reliefs. By IA No. GA 6 of 2020 the plaintiff has sought leave to dispense with pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.

2. Learned advocate appearing for the defendant Nos. 1 and 2 has submitted that, the suit should be dismissed on the ground of non-compliance with the provisions of Section 12A of the Commercial Courts Act, 2015, failure to lodge fresh writ of summons after amendment and for non-service of the notice under Section 80 of the Code of Civil Procedure, 1908.

3. Learned advocate appearing for the defendant Nos. 1 and 2 has submitted that, the suit was initially filed in the Commercial Division without obtaining leave for dispensation of the pre-institution mediation as contemplated under Section 12A of the Act of 2015. The plaintiff has not pleaded anything regarding dispensation of the provisions of Section 12 A nor has the plaintiff made any prayer to such effect in the plaint as originally filed.

4. Relying upon ( Terai Overseas Private Ltd. and Others v. Kejriwal Sugar Agencies Private Ltd. and Ors.,2020 SCCOnlineCal 1591 ). Learned advocate for the defendant Nos. 1 and 2 has submitted that, since the plaintiff did not contemplate urgent interim reliefs, prior leave for dispensation of pre-institution mediation and settlement should have been obtained.

5. Relying upon ( Mohan Singh and Ors. v. International Airport Authority of India & Ors., (1997) 9 SCC 132 ).Learned advocate appearing for the defendant Nos. 1 and 2 has submitted that, the word "shall" appearing in Section 12A is mandatory as it would be evident from the object of the Act of 2015. A strict interpretation of the provisions of the Act of 2015 should be adhered to. The user of the word "shall" gives the impression of the same being mandatory in character.

6. Learned advocate appearing for the defendant Nos. 1 and 2 has relied upon ( Ambalal Sarabhai v. K. S. Infraspace,2019 SCCOnlineSC 1311 ) in support of the proposition that, the provisions of the Act of 2015 have to be strictly construed.

7. The defendant No. 3 has supported the application of the defendant Nos. 1 and 2. Learned advocate appearing for the defendant No. 3 has submitted that, Section 12A of the Act of 2015 is mandatory. According to him, the user of the word "shall" in the Section raises a presumption that the provision is mandatory. In support of such contention, he has relied upon ( ITC Ltd v. Blue Coast Hotels Ltd. and Ors., (2018) 15 SCC 99 ) and ( State of UP v. Manbodhan Lal Srivastava, (1957) AIR SC 912 ). According to him, the onus is on the plaintiff to establish that the Section is directory. He has referred to the objects of the Act of 2015 and submitted that, the intention of the legislature is an expeditious disposal of commercial dispute. In support of his contention, he has relied upon ( State of West Bengal v. B K Mondal and Sons, (1962) AIR SC 779 ). According to him, Section 12A of the Act of 2015 cannot be read as directory. He has relied upon ( State of Jharkhand and Ors. v. Ambay Cements and Anr., (2005) 1 SCC 368 ).

8. Learned advocate appearing for the defendant No. 3 has contended that, directory provisions are where the time is extendable and where there is a public duty to be performed and where the concerned person has no control over an authority which has to do the work within a particular time. He has relied upon ( C. Bright v. District Collector and Ors., (2021) 2 SCC 392 ) and ( State of Bihar and Ors. v. Bihar Rajya Bhumi Vikas Bank Samiti,2018 9 SCC 72 ) in this regard.

9. Relying upon ( Ambalal Sarabhai Enterprises Ltd. v. K S Infraspace LLP and Anr., (2020) 15 SCC 585 ) learned advocate appearing for the defendant No. 3