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IN THE HIGH COURT OF DELHI
Rajiv Shakdher, Poonam A. Bamba, JJ.
PSA Polymers Private Limited - Appellant
Versus
Rajender Malhotra - Respondent
RFA(COMM) 17 of 2021
Decided On : 12-04-2022
| Table of Content |
|---|
| 1. pre-litigation mediation procedures. (Para 1 , 2) |
| 2. suit maintainability and respondent service issues. (Para 3 , 4) |
| 3. attempts at serving the respondent. (Para 5) |
| 4. setting aside the order and remanding the case. (Para 6) |
| 5. final orders regarding appeal disposal. (Para 7 , 8) |
JUDGMENT
[Physical court hearing/ hybrid hearing (as per request)]
Rajiv Shakdher, J. (Oral):
1. Notice was issued in the present appeal, via order dated 06.10.2021. In the meantime, we had asked for a report from the Registry, as to whether or not the pre-litigation mediation regime had kicked in at the various District Courts in Delhi, at the relevant point in time i.e., 15.11.2018, having regard to the provisions of Section 12A of the Commercial Courts Act, 2015 [in short, `the Act'].
2. The report placed before us, pursuant to the aforesaid order, reveals that the Standard Operating procedure [in short, `SOP'] to facilitate pre- institution mediation settlement was prepared on 03.10.2018, which was superseded by an amended SOP on 27.11.2018.
3. A perusal of the impugned order dated 23.02.2021 shows that the appellant had filed the suit on 15.11.2018 and that the plaint was returned by on the ground that the appellant had not taken recourse to pre-litigation mediation.
3.1. The appellant, being aggrieved, approached this court for redressal of its grievance.
4. The record shows that the respondent had not been served, when the matter was taken up by the Learned District Judge (Commercial Court), North (Rohini), Delhi, on 23.02.2021.
4.1. However, since the court came to the conclusion that the suit was not maintainable in view of the mandatory provisions, contained in Section 12A of the 2015 Act, the Learned District Judge did not deem it necessary to effect service on the respondent i.e., the original defendant.
5. Insofar as this court is concerned, an attempt was made to serve the respondent.
5.1. The office report placed before us by the Registry is suggestive of the fact that the proprietor of the respondent i.e., Mr Rajendra Malhotra, was contacted by the process server, who, in the first instance, identified himself and when he was informed about the pendency of the case, denied that he was the person, who he had said he was, in the first instance i.e., Mr Rajendra Malhotra.
5.2. It appears that there is an attempt by the respondent to avoid service.
6. In any event, since this is a case where, via the impugned order, the plaint had been returned, and we have found that at the relevant point in time, the pre-litigation mediation regime had not kicked in, in the District Court, North (Rohini), Delhi, we are inclined to set aside the order dated 23.02.2021 and remit the matter to the concerned court.
6.1. It is ordered accordingly.
7. The concerned court will take up the suit, and, thereafter, initiate the next steps in the matter, including having the respondent i.e., the original defendant, served in the suit action.
8. The appeal is disposed of in the aforesaid terms.
The mandatory requirement of pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015 renders a suit non-maintainable if not pursued before filing.
Section 12A of the Commercial Courts Act mandates pre-institution mediation, but if both parties refuse to participate, the suit may proceed without being barred by law.
Non-compliance with the procedure of Pre-Institution Mediation under Section 12A of the Act does not apply if both parties refuse to participate and a non-starter report is generated.
Pre-institution mediation under the Commercial Courts Act is required at the stage of suit initiation; however, if no mechanism exists, a suit cannot be invalidated for failure to comply.
The court emphasized the importance of pre-institution mediation in commercial disputes, the need for proper infrastructure and trained mediators, and the court's discretion to adjust equities for th....
The central legal point established in the judgment is the importance of compliance with the provisions of the Commercial Courts Act, particularly in facilitating mediation and ensuring due progress ....
Pre-litigation mediation under Section 12-A of the Commercial Courts Act, 2015 is mandatory, and failure to comply necessitates rejection of the plaint unless the court finds genuine urgency in the r....
Alternate judge cannot hear review under Order XLVII Rule 5 CPC if original judge available post short leave; violation invalidates exparte review order lacking notice and grounds, distinguishing fro....
The court affirmed the mandatory nature of pre-suit mediation under Section 12A of the Commercial Courts Act, 2015, ruling for rejection of plaint lacking demonstration of urgency.
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