The requirement of pre-institution mediation under section 12A of the Commercial Courts Act, 2015 is mandatory and can be dispensed with only in cases where the suit contemplates urgent interim reliefs.

JUDGMENT :

(Ravi Krishan Kapur, J.) :

1. This is an application by the defendant no.1 inter alia seeking revocation of dispensation granted under section 12A of the Commercial Courts Act 2015 (the Act).

2. At the outset, it is clarified that though pleaded, the prayer for revocation of leave under Clause 12 of the Letters Patent Act, 1865 was not pressed at the time of hearing of the application. The only question which arises for consideration is whether the requirement with the compliance of section 12A of the Act ought to have been dispensed with or not.

3. Briefly, the suit is for infringement of copyright. It is alleged that the defendant no.2, was an employee of the plaintiff company since 2011 and had ultimately left the services of the plaintiff company in or around 2022. It is also alleged that in or about 2016, the defendant no.2 had unauthorizedly taken copies of the drawings and documents relating to the manufacturing process of shock tubes and had divulged and sold the same to third parties including the defendant no.1. It is further alleged that after having discovered the unlawful and illegal acts of the defendant no.2, the plaintiff had in 2022 filed a complaint with the concerned Police Authorities at Bokaro, Jharkhand.

4. On behalf of the defendant no.2, it is contended that on a plain reading of the plaint, there is no scope for urgent interim reliefs in view of the fact that the plaintiff has been silent for a considerable period of time since the defendant no.2 had left the services of the plaintiff company. It is also alleged that the defendant no.2 had shared unauthorised copies of the impugned drawings as far back as on 2016. The alleged urgency has arisen only after the filing of the criminal case in 2022. This also demonstrates that the plaintiff has remained silent for more than one year after the filing of the criminal complaint. In support of their contentions, reliance is placed on the decisions in Patil Automation Private Limited & Ors. vs. Rakheja Engineers Private Limited (2022) 10 SCC 1, Odisha Slurry Pipeline Infrastructure Ltd. & Anr. vs. IDBI Bank Ltd. & Ors., 2022 SCC OnLine Cal 3951 and an unreported judgment of this Court dated 16th February, 2023 in Sanjay Kumar Mishra vs. Godavari Commodities Ltd. & Ors., G.A No. 2 of 2023 in C.S No. 267 of 2022.

5. On behalf of the plaintiff it is contended that, the suit is for protection of intellectual property rights and the plaintiff has categorically averred that the suit contemplates urgent interim reliefs. Thus, there is no scope for mediation and hence no requirement to comply with section 12 A of the Act. In any event, in an application of this nature the averments in the plaint are taken to be true and correct. In support of their contentions, the plaintiff relies on the decisions in Bolt Technology OU vs. Ujoy Technology Private Limited & Anr. 2022 SCC OnLine Del 2639, Chandra Kishore Chaurasia vs. R A Perfumery Works Private Limited 2022 SCC OnLine Del 3529, Odisha Slurry Pipeline Infrastructure vs. IDBI Bank Ltd. and Others 2022 SCC OnLine Cal 3951 and SLP (Civil) No.8481/2023.

6. Section 12A of the Act reads as follows:

“12A. Pre-Institution Mediation and Settlement—

(1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

(2) The Central Government may, by notification, authorise the Authorities constituted under the Legal Services Authorities Act, 1987 (39 of 1987), for the purposes of pre-institution mediation.

(3) Notwithstanding anything contained in the Legal Services Authorities Act, 1987, the Authority authorised by the Central Government under sub-section (2) shall complete the process of mediation within a period of three months from the date of application made by the plaintiff under sub-section (1): Provid