The mandatory requirement under Section 12-A of the Commercial Court Act for pre-mediation can be contested for suit maintainability, reflecting urgency in interim applications.

ORDER :

Sudesh Bansal, J.

1. Both writ petitions filed under Article 227 of the Constitution of India have arisen out of a Commercial Suit bearing No. 54/2023 titled M/s. Sajni Mehendi Product Vs. Smt. Shabbo pending before the Commercial Court, Kota, and the issue involved is identical in nature, hence, with the consent of counsel for both parties, both writ petitions have been heard together and would stand decide by this common order.

2. S.B. Civil Writ Petition No.1991/2024 has been filed by the petitioner-defendant, impugning the order dated 12.01.2024 passed by the Commercial Court, Kota, dismissing the application dated 18.05.2023 filed under Order 7 Rule 11 CPC by the petitioner raising an objection of filing the Commercial Suit without resorting to the mandatory provision of Section 12-A of the Commercial Court Act for pre-mediation.

3. S.B. Civil Writ Petition No.6223/2024 has been filed by the petitioner-defendant against the order dated 12.1.2024 passed by the Commercial Court, Kota, dismissing another application dated 07.07.2023 filed by the petitioner, for raising an objection for non- compliance of Section 12-A of the Commercial Court Act, in light of a written agreement dated 31.07.2010, allegedly executed between the parties.

4. Having heard counsel for petitioner-defendant and counsel for respondent, it appears that fundamental objection of petitioner-defendant is that the present Commercial Suit filed by the respondent-plaintiff is not maintainable due to non-compliance of the provisions of Section 12-A of the Commercial Court Act for pre-mediation, which has been held by the Hon'ble Supreme Court to be mandatory in nature and more so learned counsel submits that in the present case, parties had entered into a written agreement dated 31.07.2010, agreeing to use the trade name "Sajni" for sale of Mehendi packets. Per contra, counsel for respondent-plaintiff submits that in the present suit, interim relief of urgent nature has been sought by the plaintiff and therefore, it is not essential to go for pre-mediation in such nature of suit involving urgent relief. Further learned counsel for respondent submits that a written agreement dated 31.07.2010 is not an admitted document and same can be appreciated by the Commercial Court after recording evidence of parties as has been observed by the Commercial Court in the orders impugned.

5. It has transpired that by now, the petitioner-defendant has filed written statement to the Commercial Suit. Learned counsel for the petitioner-defendant submits that an objection for non- adherence to the mandatory provisions of Section 12-A of the Commercial Court has also been taken in the written statement but in that respect, no issue has been framed by the Commercial Court. Learned counsel for the petitioner-defendant do admits that in the pleadings of plaint, there is no reference of the written agreement dated 31.07.2010 and the prayer for interim relief has also been made by the plaintiff.

6. Having argued the writ petitions on merits and after obtaining instructions from the petitioner, counsel for petitioner makes a limited prayer that petitioner-defendant would not press the writ petitions on merits, if a liberty is granted to make a prayer before the Commercial Court for framing of issue in respect of examining the effect of non-compliance of mandatory provision of Section 12-A of the Commercial Court Act, before filing of the present suit.

7. In view of above, this Court is not required to enter into merits and demerits of the impugned orders and the writ petitions are disposed of with liberty to petitioner to make a prayer before the Commercial Court for framing an issue as to what is the effect of non-adherence of mandatory