The requirement for pre-institution mediation under Section 12-A(1) of the Commercial Courts Act can be bypassed if the suit seeks urgent interim relief, despite previous orders maintaining status quo.

JUDGMENT

1. The order dated 12th September 2022, passed by the learned District Judge (Commercial Courts) ("the learned Commercial Court") in CS (Comm) 36/2022 (Parvesh Kumar Gupta v. Vijay Mahajan), under challenge in the present petition instituted under Article 227 of the Constitution of India, rejects an application filed by the petitioner, as the defendant in the suit, seeking rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC).

CS (Comm) 36/2022, in pricis

2. The respondent claimed in CS (Comm) 36/2022 ("the suit", hereinafter) to be the owner of G-16A, Ground Floor, Kalkaji, New Delhi-110019 ("the suit property"). He claimed ownership on the basis of a Relinquishment Deed dated 12th May 2015 executed by several persons including the petitioner, as the defendant in the suit. Post relinquishment of his rights in the suit property, the petitioner, according to the respondent, continued to stay in the suit property on rent for a period of nine years with effect from 12th September 2017, under a Lease Deed dated 18th September 2017. The plaint alleged that the petitioner was in default of rent with effect from 1st October 2021 and that notices, calling upon the petitioner to disgorge rent in respect of the suit property yielded no useful result. In these circumstances, the respondent instituted the aforesaid suit against the petitioner, seeking a decree of eviction, directing the petitioner to vacate the suit property and to handover peaceful and vacant possession thereof to the respondent. Additionally, the suit also claimed arrears of lease rent and damages/mesne profits. Further, the suit sought a decree of permanent injunction, restraining the petitioner from entering the suit property or creating any interference with the peaceful possession of the suit property by the respondent.

3. As the property was being used for commercial purposes, the suit was filed as a commercial suit, under the Commercial Courts Act, 2015. Along with the suit, the respondent filed an application under Order XXXIX Rules 1 and 2 of the CPC, seeking an interlocutory order, restraining the petitioner from creating any third party right or interest in respect of the suit property.

Application of the petitioner under Order VII Rule 11 of the CPC

4. During the pendency of the aforesaid suit, the petitioner, as the defendant in the suit, moved an application seeking dismissal of the suit under Order VII Rule 11 of the CPC. The main contention of the petitioner, in the said application, was that the respondent had filed the suit without complying with the mandatory requirement of pre-institution mediation, contained in Section 12-A(1)¹ of the Commercial Courts Act.

5. While acknowledging that the respondent had filed, with the suit, an application seeking interlocutory relief under Order XXXIX Rules 1 and 2 of the CPC, the petitioner, in his application, sought to contend that the said relief already stood granted by the learned Additional Civil Judge ("the learned ACJ"), vide order dated 18th September 2021 passed in CS SCJ 1046/2021, which had been instituted by the petitioner against the respondent. The said order reads thus:

"18.09.2021

Present hearing has been done through VC.

Present: Sh. Arpit Bhargav, Ld. Counsel for the plaintiff.

Sh. Joby P. Varghese Ld. Counsel for the defendant no.3 and 4.

Sh. Rajender Singh, Ld. Counsel for defendant no.5.

Today the matter is listed for filing of WS on behalf of defendants. Same is not filed.

Status quo be maintained by the parties till NDOH.

Put for filing of WS on behalf of defend