JUDGMENT :

SOUMEN SEN, J.

1. The plaintiff/respondent no.1 claims to be guarantor in respect of Non-Convertible Debentures in favour of CDC group Plc aggregating to Rs.40 Crores.

2. The plaintiff alleged that due to default of the appellant in payment in terms of the Debenture Trust Deed dated 24^th March, 2021 the Debenture Trustee had invoked the deed of guarantee dated 24^th March, 2021. The plaintiff as a guarantor paid the default amounts to the respondent no.2, debenture trustee. Presently a sum of over Rs.18 crores is due and payable by the appellant on the basis of clause 4 of the Payment Undertaking executed by the appellant/defendant no.1. The appellant in spite of repeated demands did not discharge its liabilities and pay all the debts, although, payment obligations in respect of other lenders/creditors are being honoured. This is a clear breach of the obligations under the payment undertaking. On such facts and circumstances suit was filed in the Commercial Division of the department concerned with a prayer for dispensation of the mandatory requirement of Section 12A of the Commercial Courts Act, 2015. The learned judge granted leave and thereafter two orders have been passed.

3. On 6^th December, 2024, the plaintiff filed an application under Section 12(A) of the Commercial Courts Act, 2015 supported by affidavit praying for exemption from applying for Pre-institution Mediation in view of the urgent interim reliefs. The plaintiff also filed an application for interim relief under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. On 19^th December, 2024, an order was passed by the learned Commercial Judge granting leave under Section 12(A) relying upon the observation of a coordinate Bench in FMAT No. 222 of 2024 with CAN No. 1 of 2024 (Shristi Infrastructure Development Corporation Limited vs. Sarga Hotel Private Limited & Anr.) and thereafter an ex-parte ad- interim order was passed restraining the appellant from making any disbursement or payment including any payment to any third party/alleged creditor/s before the petitioners’ monetary overdue is cleared. Subsequently, on 23^rd December, 2024, the defendant appeared and contested the said application. On the basis of the oral submission, the interim order was modified to the extent that the parties shall avail the mediation before the appropriate Authority/Forum and till the mediation proceeding comes to an end, the order of ad-interim injunction as it stands after modification, will remain in abeyance since the commencement of the mediation proceeding till its end subject to the condition that the defendants/respondents pay 40% of the outstanding dues of Rs.16 crores and odds to the plaintiff/petitioner within three weeks since the commencement of the mediation proceeding. The matter was directed to be listed on 26^th March, 2025 for compliance.

4. Mr. S.N. Mitra, learned senior counsel appearing on behalf of the appellant, has submitted that no application was served upon the appellant before such leave was obtained and in any event, having regard to the decision of Hon’ble Supreme Court in the case of Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd.,  (2022) 10 SCC 1, the Court has a suo motu power to reject the plaint, in the event the Court is satisfied that the urgency pleaded was not genuine and is only a pretext to circumvent the mandatory provision of Section 12A.

5. The learned senior counsel has referred to paragraph 20 of the plaint to show that the plaintiff had received payments. It is further submitted that even after the impugned order was passed a sum of Rs.1.5 Crores have been paid to the plaintiff which clearly disprove the impecunious situation of the appellant.

6. An attempt was made by Mr. Pramit Bag, learned counsel appearing for one of the creditors to submit that the said order ought not to have been passed without hearing the IDFC Frist Bank. However, in absence of any application, we are not inclined to go i