Counter-claims can be independent of the original cause of action and do not require compliance with pre-institution mediation provisions under Section 12A of the Commercial Courts Act.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present revisional application has been filed, inter alia, challenging the order dated 9th August, 2024 passed by the learned Judge, Commercial Court, Rajarhat, North – 24 Parganas in Commercial Suit being T.S. No. 26 of 2021 (C.C) whereby the plaintiff/petitioner’s application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and the application under Order VIII Rule 6C of the Code has been rejected.

2. To understand the scope of the aforesaid revisional application, it would be relevant to note down the facts leading to filing of such application. The petitioner who is the plaintiff in the above commercial suit claims to have been incorporated under the relevant laws of United States of America and is engaged in the business of International Trade of paper and other allied products. The plaintiff claims to have entered into the contractual relationship with the defendant in respect of supply of waste paper of agreed quantity and specifications. The plaintiff claims that it was agreed by and between the parties that the payment would be in the form of letter of credit which would be 180 days from the date of bill of lading, which was later altered to direct payment at site for 3,000/MTs and the balance 3,000/MTs would be vide Letter of Credit of 180 days from the date of Bill of lading. In furtherance to the above 3,000/MTs of the waste paper was shipped in respect of the contract dated 18th May, 2018. On the basis of the letter of credit opened by the defendant, the plaintiff had shipped waste paper of agreed quantity and specifications. Unfortunately, despite the above, the plaintiff’s banker had intimated the plaintiff that the bills under several invoices had been returned due to defendant’s refusal to make payment. Certain invoices were also refused to be paid citing minor discrepancy in L.C. terms. Notwithstanding the above, the defendant/opposite party managed to clear/unload the shipped goods under several invoices. Although, the attempts were made to resolve such disputes amicably, the same having not been resolved the plaintiff had filed the aforesaid suit after having exhausted the remedy provided under Section 12A of the Commercial Courts Act, 2015 (hereinafter referred to as the “said Act”) of pre-institution mediation and settlement.

3. According to the plaintiff, since the defendant did not participate in the mediation, the mediation failed.

4. Records would reveal that the defendant has been contesting the suit and had filed not only the written statement but simultaneously along with the written statement had filed a counter-claim. According to the plaintiff, since the counter-claim was filed without complying with the provision of Section 12A of the said Act, an application under Order VII Rule 11 of the Code was filed. The plaintiff also filed an application under the provisions of Order VIII Rule 6C of the Code, inter alia, on the ground that the counter-claim did not comply with the rules of the Code as applicable for filing of plaints.

5. By order no.22 dated 9th August, 2024, the learned Judge, Commercial Court at Rajarhat, had rejected the application filed under Order VII Rule 11 of the Code as also the application filed under Order VIII Rule 6C of the Code. Challenging the aforesaid order, the present revisional application has been filed.

6. Ms. Chakraborty, learned advocate appearing in support of the aforesaid revisional application by drawing attention of this Court to the provisions contained in Section 12A of the said Act would submit that as to whether the said Section is mandatory is no longer res integra. She would submit that it has been settled by successive pronouncements of the Hon’ble Supreme Court that the provisions of Section 12A of the said Act are mandatory, and the defendant having not complied with such mandatory provision, the counter-claim filed by the defendant which partakes the character of a