JUDGMENT :

I.P. MUKERJI, J.

1. Chapter IIIA was introduced into the COMMERCIAL COURTS ACT , 2015 by Section 11 of Act XXVIII of 2008 with effect from 3rd May, 2018. It inserted one solitary section, 12A. It is in the following terms:

“12-A. 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 Service Authorities Act, 1987 (39 of 1987), for the purposes of pre-institution mediation.”

2. Sub-Section 3 of Section 12A provides that the process of mediation would have to be completed within three months from the date of application made by the plaintiff under Sub-Section 1. It may be extended by two months by consent of parties.

3. If a suit contemplates “an urgent relief” it may be instituted without undergoing pre-litigation, mediation. The rule of practice which is followed in this court is that if a suit under the said Act is to be instituted without pre-litigation, mediation, leave has to be obtained from the court dispensing with the requirement at the time of institution of the suit. In other words, the court has to certify that the suit “contemplates” urgent reliefs and that is why, such leave is being granted.

4. On 3rd November, 2020 the learned single judge of this court granted leave to the appellant plaintiff to institute the suit without undergoing pre-litigation, mediation. On 4th July, 2022 another single judge of this court in an application for revocation of such leave and for dismissal of the suit ruled that since for two years after institution of the suit no interim application for an urgent relief had been moved by the appellant plaintiff, the Section 12A leave was liable to be revoked and the suit dismissed. An order was passed accordingly on that date.

5. At this point of time, let us examine the nature, purport and scope of the suit. Between April, 2015 and November, 2017 the appellant plaintiff had sold and delivered to the respondent defendant more than 126 metres of zinc ingots. The respondent defendant accepted the goods unconditionally. The respondent defendant made payment for part of the supplies amounting to Rs.1,68,99,341/- leaving outstanding a sum of Rs.87,36,945/-. The respondent defendant purportedly made payment of part of the claim by several cheques. All of them were dishonoured with the remark “fund insufficient”. It is a simple claim for recovery of price of goods, sold and delivered together with interest.

6. The question which has now arisen is whether the learned judge was right in granting the leave or whether the appellant plaintiff should have been compelled to invoke the mediation process and complete it before filing the suit.

7. As the section postulates, if in a suit no urgent relief is contemplated, then Section 12A leave is mandatory.

8. It is the appellant’s case that such leave was not required for institution of the present suit because urgent reliefs were contemplated.

9. The learned judge has ruled that no interim application was moved for two years which provided his lordship a reason to revoke the 12A leave.

10. Was that the correct test applied by the court?

11. The legislatu