IMPORTANT POINT
Mandatory nature of Section 12-A of the Commercial Court Act 2015 and the essential requirements for invoking the power of the Court to effect an attachment before judgment under Order 38, Rule 5(1) of CPC.

JUDGMENT :

(Prayer: Civil Revision Petition has been filed under Article 227 of the Constitution of India to set aside the order dated 05.02.2024 made in C.O.S.S.R.No.06/2024 made by the learned Commercial Court Judge, Chennai and thereby direct the registration of the case.)

1. This Civil Revision Petition has been filed to set-aside the order dated 05.02.2024 passed by the learned District Judge, Chennai made in C.O.S.S.R.No.6 of 2024 made and thereby direct the registration of the case.

2. The petitioner/plaintiff has presented the plaint for the relief of recovery of amount due under the promissory note executed by the defendants and the same was returned for representation for non compliance of Section 12-A of the Commercial Court Act 2015 on the ground that the trial court is not satisfied with the urgent interim relief sought by the petitioner/plaintiff to get over Section 12-A of the C.C. Act.

3. The learned counsel for the petitioner submitted that the prayer for an urgent interim relief should be examined by the Court with the nature and subject matter of the suit, the cause of action and the prayer for interim relief. The facts and circumstances of the case have to be considered from the standpoint of the plaintiff, but, the trial Court failed to consider the fact from the standpoint of the plaintiff. Therefore, he had pleaded to set-aside the impugned order dated 05.02.2024 passed by the Commercial Court. To support his argument, the learned counsel relied upon the judgment of the Hon'ble Supreme Court in 2023 SCC Online SC 1382 (Yamini Maohar vs. TKD Keerthi).

4. Heard the submission made by the learned counsel appearing for the petitioner and perused the materials available on records carefully.

5. On perusal of the records, the fact reveals that the petitioner/plaintiff has presented the plaint, for the relief of recovery of amount due under promissory notes said to have been executed by the respondents/defendants, stating that the respondents/defendants, who are known person to the petitioner/plaintiff's, had availed financial assistance from the petitioner/plaintiff and there were exchange of emails, notice, reply notice, re-joinder and sur-rejoinder. The petitioner/plaintiff along with the plaint has filed a petition under Order XXXVIII Rule 5 of CPC for attachment before judgment, alleging that the respondents/defendants are seriously attempting to alienate the immovable properties, in which, a third party affidavit from a broker dealing with real estate business has also been produced. He has not availed the remedy provided for pre-institution mediation and settlement under Section 12-A of Commercial Court Act, 2015 and sought for exemption from invoking from the said PIMS, on the ground that the petition for ABJ would fulfill the requirements of urgent interim relief.

6. The principle under Section 12-A of the Commercial Court Act 2015 has been considered by Hon'ble Supreme Court in the case of Patil Automation Private Limited and others vs. Rakheja Engineers Private Limited reported in 2022 (1) SCC 1 Act and summarised the principle as follows :

“(i) Section 12-A of the 2015 Act is declared mandatory and it is held that any suit instituted violating the mandate of Section 12-A must be visited with rejection of the plaint under Order VII Rule 11 CPC. This power can be exercised even suo motu by the court as explained above. However, this declaration is made effective from 20.08.2022 so that stakeholders concerned become sufficiently informed,(ii) Still further, a direction is issued that in case plaints have been already rejected and no steps have been taken within the period of limitation, the matter cannot be reopened on the basis of this declaration. Still further, if the order of rejection of the plaint has been acted upon by filing a fresh suit, the declaration of prospective effect will not avail the plaintiff,(iii) Finally, if the plaint is filed violating Section 12-A of the 2015 Act after the jurisdiction