Section 12A of the CC Act mandates pre-litigation mediation, and claims for urgent relief must meet specific criteria to bypass this requirement.

JUDGMENT :

Sunita Agarwal, C.J.

1. The short question of law raised for consideration before us in the present set of appeals filed under Section 13 of the Commercial Courts Act, 2015 (for short 'CC Act') is whether the plaintiff in a Commercial Suit can seek exemption to comply with the provisions of Section 12A of CC Act to exhaust the remedy of pre-litigation mediation, merely by filing an application seeking an urgent relief.

2. The challenge in this set of appeals is to almost identical orders passed by the Commercial Court at Rajkot in four Commercial Trade Mark Suits No.1 of 2023; 2 of 2023; 3 of 2023; and 4 of 2023. All four Suits were preferred by the same person, the plaintiff-appellant herein namely Mr. Ashokbhai Majibhai Sankharava, sole proprietor of a business concern M/s. Unolex Aquatech, for infringement of the plaintiff's patented product bearing No. 388576 against four different business entities as defendants in the said suits. Along with the suit preferred on 20.09.2023, an application seeking exemption to comply with the requirement of Section 12A of the CC Act with the assertion that the plaintiff has filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908, seeking urgent relief and hence, the requirement of invoking pre-litigation may not be insisted upon.

3. We may note that the application seeking exemption from complying with the requirement of Section 12A of the CC Act filed in the above noted four suits are verbatim the same. For convenience, the facts of the Commercial Civil Suit No. 2 of 2023 are being referred hereinafter in this judgment. The Trial Court while rejecting the Application Exhibit 7 seeking exemption from compliance of Section 12A has also rejected the plaint in each Suit, noticing that the Commercial Suit was not maintainable without invoking mandatory provisions of Section 12A of the CC Act, amended as on date.

4. On the facts, the Trial Court noticing the plaint case has recorded that the plaintiff claims to be actual inventor and owner of "Submersible Aerators for Aquaculture Fish Farms and ET & ST Plant" used in fish farms and aquaculture and has got registered the patent for the same by preferring an application in the year 2014, which was granted on 04.02.2022, considering goodwill and high reputation of the plaintiff. The case of the plaintiff is that he has every right to restrain the imitator and infringer of the patent product of the plaintiff including the defendants in the aforesaid suits.

5. On the presentation of the plaint, the Commercial Court having found that the suits were filed without compliance of the mandatory provisions of Section 12A of the CC Act, on hearing the learned advocates appearing for the parties at length, has noted that on perusal of the entire averments of the plaint, it transpires that there is no satisfactory account given by the plaintiff, by which it can be said that the present suit by the plaintiff requires any urgent interim relief. Nowhere in the pleading, it is stated as to at what time or date, the patent of the plaintiff was infringed by the defendant. Paragraph 28' of the plaint where cause of action for filing the suit has been narrated, is cleverly drafted without mentioning the time or duration or the date when the factum of infringement carried out by the defendants came to the knowledge of the plaintiff. Vague averment has been made to the effect that the cause of action arose as and when the defendant has started manufacturing and marketing their product used in fish farms and aquaculture, which is identical to the plaintiff's patented product and upon inquiry, the plaintiff found that the defendant had copied the patented product of the plaintiff.

6. The Trial Court has categorically recorded that the expression "contemplation of urgent relief" requires to pass through certain tests/parameters, to be ascertained by the Trial Court, to check that the prayer for urgent interim relief may not be a camo