The requirement of pre-institution mediation under Section 12A of the Commercial Courts Act does not apply when urgent interim relief is sought in a commercial suit.

JUDGMENT

1. The present revision petition assails the order dated 6th February, 2023 passed by the District Judge (Commercial Court)-01, South District, Saket Courts, New Delhi, whereby the application filed on behalf of the petitioner/defendant under Order VII Rule 11 of the Civil Procedure Code, 1908 (CPC) seeking rejection of the plaint, was dismissed.

2. The suit from which the present petition arises was filed seeking permanent injunction restraining infringement of trademark and passing off along with other ancillary reliefs. The suit was filed along with an application under Order XXXIX Rules 1 and 2 of the CPC for grant of interim injunction and an application seeking exemption from compliance with Section 12A of the Commercial Courts Act, 2015.

3. The petitioner/defendant filed an application under Order VII Rule 11 of the CPC seeking rejection of the plaint as being not maintainable as the plaintiff failed to comply with provisions of Section 12A of the Commercial Courts Act mandating pre-institution mediation before filing a commercial suit.

4. The case of the petitioner before the Commercial Court was that mere filing of an application under Order XXXIX Rules 1 and 2 of CPC would not exempt the plaintiff from compliance under Section 12A of the Commercial Courts Act, as the same is a mandatory requirement. Reliance in this regard has been placed on the judgment of the Supreme Court in Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., 2022 SCC OnLine SC 1028.

5. The case set up by the respondent/plaintiff before the Commercial Courts was that in cases pertaining to intellectual property, the relief of interim injunction, including ex parte ad interim stage is extremely important as the cases relating to intellectual property are not only for the benefit of the plaintiff but also for the benefit of the public at large. In the present case, the respondent/plaintiff had made valid grounds for grant of an ad interim injunction order.

6. Agreeing with the submission of the respondent/plaintiff that grant of an ad interim injunction in intellectual property cases is extremely important and in view of the fact that the respondent's/plaintiff's suit contemplated urgent interim relief against the petitioner/defendant, the Commercial Court held that there was no requirement for the plaintiff to undergo pre-institution mediation before filing the present suit and hence, the application filed by the petitioner/defendant under Order VII Rule 11 of the CPC was dismissed. Relevant observations of the Commercial Court are set out below:

"8. As per the experience seen in intellectual property cases, the relief of interim injunction, even during ad-interim stage, is extremely important. In the present case, the plaintiff has filed the suit on 26.03.2022 for permanent injunction restraining infringement of trademarks, passing off, unfair trade competition, rendition of account, damages, delivery up etc of its trademark Life impressions against the defendant. The said plaint was accompanied with an application U/o 39 Rule 1 and 2 r/w Section 151 CPC for ad-interim injunction. In view of the foregoing discussion and particularly, when the plaintiff's suit contemplated urgent interim relief for ad-interim injunction against the defendants, there was no requirement of the plaintiff to undergo pre-institutional mediation before filing the present suit. The application of the defendant filed U/o 7 Rule 11 CPC for rejection of the plaint is devoid of any merits and the same is hereby dismissed with a costs of Rs.5,000/-payable to the plaintiff within two weeks. The said application stands disposed of accordingly."

7. The present revision petition has been filed assailing the aforesaid order on the following grounds:

i. The impugned order is not in conformity with the judgment of the Supreme Court in Patil Automation (supra) wherein it has been held that there has to be mandatory compliance of pre-institution mediation in terms of