The court established that the Master has the power to grant leave under section 12-A of The Commercial Courts Act, 2015, and the subsequent conduct of the defendant indicated acceptance and curing of the defect of the grant of leave by the Master.

ORDER :

Moushumi Bhattacharya, J.

The applicant/judgment-debtor who is the defendant in the suit, seeks recalling of two orders passed by the learned Master granting leave under section 12-A of The Commercial Courts Act, 2015 and leave to the plaintiff to amend the plaint, respectively. Section 12-A of the 2015 Act - Pre-Institution Mediation and Settlement - provides that a suit which does not contemplate any urgent interim relief, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation under the prescribed rules.

2. The issue, which falls for consideration is whether the Master, under the Original Side Rules of this Court, has the power to grant leave under section 12-A of The Commercial Courts Act, 2015 in a suit instituted under the Commercial Division of a High Court.

The series of events, as contended by the parties, are as follows:

3. The plaint was admitted by the Master on 28.11.2019 and leave was granted by the Master under section 12-A of the 2015 Act.

4. The Master allowed the plaintiff to amend the plaint on 09.01.2020. A learned Single Judge passed a decree in favour of the plaintiff on 16.01.2020 in an application filed under Order XII Rule 6 of The Code of Civil Procedure, 1908. In February, 2020, the defendant came to learn of the fact of leave being granted by the Master under section 12- A of the 2015 Act. The defendant challenged the decree before a Division Bench and was permitted to withdraw the appeal with leave to file a review on 01.07.2020. The review, filed by the defendant, of the judgment and decree dated 16.01.2020 was dismissed by the learned Single Judge on 11.02.2021. A Special Leave Petition filed by the defendant challenging the decree dated 16.01.2020 and the order dismissing the review dated 11.02.2021 was disposed of as withdrawn on 16.07.2021.

5. Learned counsel appearing for the applicant/defendant submits that the defendant received two copies of the plaint, the first being annexed to the petition filed under Order XII Rule 6 of the CPC and the second copy being handed over by the advocate of the plaintiff at the time of passing of the decree dated 16.01.2020. Counsel submits that paragraph 23 of the plaint as it stood before amendment, i.e. on the date of presentation of the plaint refers to attempts of settlement between the parties and that the same failed since the defendant chose not to make any effort for the settlement. Leave was granted by the learned Master under section 12-A on 28.11.2019 on the basis of the pleading in the original plaint. Counsel submits that after leave was granted, the Master permitted amendment of the plaint on 09.01.2021 without a formal application being made in that regard. It is submitted that since the defendant did not have access to the original plaint, this fact came to be known during drawing up and completing of the decree in February, 2020. Counsel urges that granting of leave under section 12-A of the 2015 Act is a judicial act where the Court has to be satisfied of the existence of certain fact before granting such leave. It is also urged that leave has to be prayed for under section 12-A and was required to be done in the present case since the plaintiff sought for urgent interim reliefs from the Court. According to counsel, since the grant of leave was passed by a person having inherent lack of jurisdiction, the said order would be a nullity and the principles of estoppel and acquiescence would have no application in such cases.

6. Learned counsel appearing for the respondent/plaintiff submits that at the relevant time, the Master had granted leave to the plaintiff to institute the suit by dispensing with the requirements under section 12-A of the 2015 Act and that the advocate of the plaintiff was given to understand that the Master was entitled to grant such leave on the basis of a practice direction, then in force. Counsel submits that the suit was instituted for recovery of a sum of money which became due a