Pre-institution mediation under the Commercial Courts Act, 2015 was not mandatory for suits filed before December 11, 2020, when the requisite infrastructure for mediation was not in place.

JUDGMENT :

Krishna Rao, J.

1. The defendant has filed the present application for dismissal of C.S No. 128 of 2018 on the ground that in the plaint itself the plaintiff has admitted that the cause of action to file the suit arose in the year 2008 and in the year 2011, admittedly, the suit is barred by limitation.

2. The defendant further contended that the plaintiff had relied upon the dates March 8, 2012 and March 7, 2012 when the plaintiff had made the final payment in respect of all accounts to the defendants and the suit is filed in the year 2018 which is barred by limitation.

3. The defendant further contented that the plaintiff has instituted the suit in the Commercial Division without seeking leave to dispense with the pre-institution mediation as contemplated under the Commercial Courts Act, 2015.

4. The plaintiff has filed the suit against the defendant for decree of Rs. 8,57,19,563/-along with interest and damages against the defendant bank.

5. Mr. Debmalya Ghosal, learned Counsel for the defendant has drawn the attention of this Court to the paragraphs 14, 22, 32, 33 and part paragraph 46 of the plaint which reads as follows:

“14. By its letter of sanction dated 3rd March, 2008, the defendant inter alia sanctioned a limit of Rs. 126 lakhs in favour of the plaintiff No. 1 on account of “farmers loan”. The said letter of sanction dated 3rd March, 2008 inter alia provides that the said credit facility would be secured by “Pledge of bonds and guaranteed by the Company”. A copy of the said letter of sanction dated 3rd March, 2008 is hereto annexed and marked as Annexure “E”.

22. By numerous letters dated 1st September, 2008, 5th November, 2008, 4th December, 2008, 19th February, 2013, 18th November, 2013, 30th July, 2014, the plaintiff No. 1 has from time to time repeatedly called upon the defendant Bank to make over the said bonds against payment by the plaintiff No. 1 so that the plaintiff No. 1 in turn could realise the loans and credit facilities given to the individual farmers against such bonds. Copies of the said letters dated 1st September, 2008, 5th November, 2008, 4th December, 2008, 19th February, 2023, 18th November, 2013, 30th July, 2014 written by the plaintiff No. 1 to the defendant Bank repeatedly calling upon the defendant to release the said bonds against payment are hereto annexed and collectively marked as Annexure “H”.

32. The plaintiffs state that on or about November 29, 2012, the plaintiffs fully repaid the said WCTL account of Rs. 63 lakhs by repaying to the defendant Bank a sum of Rs. 88,09,268.93/-. A copy of the statement of accounts which will demonstrate that the said WCTL account was repaid in full together with interest is hereto annexed and marked as Annexure “K”.

33. On or about September 28, 2011 the plaintiffs also repaid in full, together with interest, costs and charges; the farmers loan pledge account of Rs. 63 lakhs. In respect of the said farmers loan pledge account, the plaintiffs have repaid a total sum of Rs. 68,94,403.78/-as will be manifest from a statement of accounts which is hereto annexed and marked as Annexure “L”.

46. The cause of action thereafter arose on 8th March, 2012 when the plaintiffs had to effect distress sale of the said cold storage and also arose on 7th March, 2012 when final repayment was made by the plaintiffs in respect of all its accounts to the defendant. The cause of action is continuing to arise on a day-to-day basis by reason of the failure and refusal of the defendant to make payment of the claims of the plaintiffs.”

6. Mr. Ghosal submitted that from the above mentioned paragraphs, it is clear that the cause of action lastly arose in the year 2012 and admittedly the plaintiff has filed the present suit in the year 2018 thus the suit is hopelessly barred by limitation.

7. Mr. Ghosal further submitted that the suit is filed in the Commercial Division but nei