Section 12A of the Commercial Courts Act mandates exhaustion of pre-institution mediation unless a suit clearly contemplates urgent interim relief, a point upheld by the court in dismissing the petitioner's claims.

JUDGMENT :

HIRANMAY BHATTACHARYYA, J.

1. This application under Article 227 of the Constitution of India is at the instance of the first defendant and is directed against an order being no. 8 dated May 22, 2025 passed by the learned Judge, Commercial Court at Asansol in IA No. 05 of 2025 in Money Suit (Commercial) No. 01 of 2025.

2. By the order impugned, the application filed by the petitioner being IA No. 05 of 2025 praying for revocation of leave granted to the plaintiffs/opposite parties under Section 12A of the Commercial Courts Act 2015 (for short “the 2015 Act”) and for rejection of plaint stood rejected.

3. The opposite parties nos. 1 to 3 herein filed a suit for recovery of money amounting to Rs. 1,59,07,662/- (Rupees one crore fifty nine lakh seven thousand six hundred sixty two only ) including interest at the rate of 18% per annum and for other consequential reliefs. The opposite parties filed an application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure. The opposite parties filed an application under Section 12A of the Commercial Courts Act being IA No. 1 of 2025 dated January 21, 2025 praying for dispensing with the pre-institution mediation as prescribed under Section 12A of the 2015 Act and to permit the opposite parties to present the suit without taking recourse to pre-suit mediation.

4. The learned Judge, Commercial Court at Asansol by an order being no. 1 dated January 21, 2025 disposed of IA No. 1 of 2025 by granting leave under Section 12A of the 2015 Act.

5. Petitioner filed an application praying for revocation of leave granted under Section 12A of the 2015 Act and for rejection of plaint in Money Suit (Commercial) no. 1 of 2025 for non-compliance of the mandatory pre- institution mediation in terms of Section 12A of the 2015 Act. The said application was registered as IA no. 5 of 2025.

6. The learned Trial Judge rejected IA No. 5 of 2025 by the impugned order. Being aggrieved by such order, the first defendant has approached this Court by filing the instant application under Article 227 of the Constitution of India.

7. Mr. Mukherjee learned advocate appearing for the petitioner contended that prior to the institution of the instant suit, the petitioner along with NKAS Services Private Limited instituted a suit against the opposite party no. 1 inter alia praying for a decree that the Bank Guarantee dated 06.08.2015, 05.05.2017 and 17.04.2019 be adjudged null and void and be delivered up and for permanent injunction restraining the opposite party no. 1 from invoking the said Bank Guarantee and for a decree for recovering Rs. 1,55,91,610/- (Rupees one crore fifty five lakh ninety one thousand six hundred ten only) . He contended that the said suit was instituted after exhausting the provisions of Section 12A of the 2015 Act. He further contended that the instant suit has been filed surreptitiously by the opposite parties in respect of the separate tender process wherein the second defendant is the successful bidder seeking for recovery of money without resorting to the mandatory provision of Section 12A of the 2015 Act. He contended that the learned Trial Judge mechanically granted leave to the opposite parties to present the instant suit without resorting to the mand