IMPORTANT POINT
The court established that the introduction of Section 12A of the Commercial Courts Act, 2015, does not retroactively apply to suits transferred to the Commercial Court before its enactment, and that res judicata prevents re-litigation of previously decided issues.

ORDER :

I.A. No.01/2024:-

1. For the reasons stated, the application seeking early listing of the matter is allowed.

2. At the request of the learned counsel for the parties, the matter is taken up today itself.

D.B. Civil Misc. Appeal No. 1990/2023:-

1. By way of present appeal preferred under Section 13 of the Commercial Courts Act, 2015 (hereinafter referred to as “the Act of 2015”), the appellants have laid challenge to the order dated 31.10.2023, whereby the application under Order VII Rule 11 of Civil Procedure Code (hereinafter referred to as ‘C.P.C.’ or ‘the Code’) preferred by the present appellants (defendants in the original suit) on 19.10.2023 has been rejected by the Commercial Court, Jodhpur.

2. Mr. Yadav, learned counsel for the appellants argued that the Commercial Court has rejected the appellants’ application dated 19.10.2023 cursorily, being swayed by the fact that earlier application under Order VII Rule 11 of C.P.C of the appellants was already rejected by it on 24.08.2022.

3. Learned counsel for the appellants submitted that the issue which was raised by way of the subject application dated 19.10.2023, was not at all raised in the earlier application that was filed by the appellants under Order VII Rule 11 of the Code and therefore, the Commercial Court ought not to have rejected appellants’ application.

4. Learned counsel pointed out that the Commercial Court has not only rejected appellants’ application as barred by res-judicata, but also on merit and held that provisions of section 12A of the Act of 2015 will not be applicable to the suit in question.

5. Advancing the argument, learned counsel submitted that a fundamental question of law and jurisdiction was raised by the appellants which revolved around the provisions of section 12A of the Act of 2015, according to which, since prior to filing of the suit in question, the appellant had not applied for and undertaken the exercise of pre-institution mediation and settlement, as is mandatory under section 12A of the Act of 2015, the suit was liable to be rejected.

6. Taking the Court through section 15 of the Act of 2015, learned counsel argued that as per sub-section (3) of the section 15 of the Act of 2015, the provisions of the Act of 2015 have been made applicable to all the pending suits and accordingly all the proceedings which remained pending or were to be undertaken on the date of transfer of a suit to the Commercial Court will be undertaken.

7. In sum and substance, the argument of Mr. Yadav has been that when the suit came to be transfer to the Commercial Court by virtue of section 15 of the Act of 2015, it was incumbent upon the Commercial Court to first examine as to whether mandate of section 12A of the Act of 2015 has been complied or not?

8. In relation to argument aforesaid, learned counsel apprised the Court about the relevant dates, which are reproduced hereunder:-

9. Learned counsel argued that since the suit in question came to be transferred to the Commercial Court, Jodhpur on 17.02.2020, by virtue of sub-section (3) of section 15 of the Act of 2015, the provisions of section 12A of the Act of 2015 became applicable and therefore, the suit became non-maintainable per-force Section 12A of the Act of 2015, which mandates a party to go for pre-institution mediation and settlement before instituting a suit.

10. Mr. Mankad, learned counsel for the respondents submitted that application under Order VII Rule 11 of C.P.C. filed by the appellants was rejected by the Commercial Court, whereafter, again a fresh application under Order VII Rule 11 of C.P.C., raising almost similar ground (except one relating to section 12A of the Act of 2015) was filed and hence, the same was rightly rejected. He highlighted that the earlier order passed by the Commercial Court has been