Section 12A of the Commercial Courts Act, 2015 is mandatory, but non-compliance may be excused if the necessary mediation infrastructure was unavailable at the time of filing.

ORDER :

V. Lakshminarayanan, J.

This civil revision petition arises against the order of the learned Principal District Judge at Krishnagiri in I.A. No. 2 of 2023 in O.S. No. 197 of 2021 dated 17.04.2024.

2. The civil revision petitioner is the defendant in the suit. O.S. No. 197 of 2021 has been presented for recovery of a sum of Rs.28,03,310/- . This amount represents the balance payable, under a purchase order dated 20.04.2016. For the purpose of disposal of the revision, the facts of the case are not necessary.

3.The defendant, on appearance, filed its written statement. Thereafter, it took out an application under Order VII Rule 11 (d) of the Code of Civil Procedure r/w. Section 12A of The Commercial Courts Act, 2015 (in short 'the Act'). The plea is an extremely simple one. According to the defendant, the Supreme Court had held in Patil Automation Private Limited & Ors Vs. Rakheja Engineers Private Limited, 2022 (10) SCC 1 that Section 12-A of the Act is mandatory. Since the plaintiff had not followed the mandatory mediation process, the plaint is liable to be rejected. This application was numbered as I.A. No. 2 of 2023 in O.S. No. 197 of 2021. Notice was issued to the respondent/plaintiff. The plaintiff filed a counter denying the averments of the petition filed by the defendant.

4. The learned Trial Judge took up the application for disposal and held as follows:

(i) The declaration of law in Patil Automation is prospective in its application from 20.08.2022. The suit having been filed earlier, it is not barred.

(ii) That requisite infrastructure under Section 12A of the Act, came into place at Krishnagiri only in December 2020. Therefore, the party could not have resorted to the same.

Consequently, she dismissed the rejection of plaint petition.

5. Aggrieved by the same, the present civil revision petition is filed.

6. When the matter came up for admission on 19.11.2024, I requested Mr.Rahul Shankar to serve papers on the counsel who represented the plaintiff in the Court below. The papers were served and Mr. S. Sathya Ganesh has entered appearance.

7. I heard Mr.Sricharan Rangarajan learned Senior Counsel for Mr. Rahul Shankar and Mr. Ashok Menon for Mr. S. Sathya Ganesh.

8. Mr. Sricharan Rangarajan invited my attention to paragraph 113.3 of the Judgment in Patil Automation, mentioned supra. He argues that the Supreme Court had culled out an exception to the prospective application of the Judgment as found under Paragraph 113.1, by stating that, if the jurisdictional of High Court had already declared that Section 12A to be mandatory, then, the plaintiff will not be entitled to the benefit granted under Para 113.1.

9. He points out that this Court in Sathyam Wood Industries Vs. Adoniss Pvt. Ltd., C.R.P.(MD)No.804 of 2019 dated 10.06.2019, had held that Section 12A is mandatory and therefore the plaintiff is not entitled to the benefit under paragraph 113.1. He took me through the Judgments of the Supreme Court in Amalgamated Coalfields Vs.. Janapada Sabha Chhindwara, 1963 Supp (1) SCR 172 and S. Shanmugavel Nadar Vs. State of Tamil Nadu & Anr, (2002) 8 SCC 361 to urge that even if I were to come to a conclusion that the Judgment in Sathyam Wood Industries had not specifically declared Section 12A to be mandatory, by necessary implication, it had been declared so in Sathyam Wood Industries case. Hence, para 113.3 of Patil automation will apply and not para 113.1, as held by the learned Commercial Judge.

10. He also invited my attention to Deepak Raheja Vs.Ganga Taro Vazirani, 2021 (6) Bom.CR 115 to argue that though Section 12A had been held mandatory in the said judgment, the Division Bench had taken a view that the suit can be kept in abeyance for a period of three months and that this position was specifically reversed by the Supreme Court in Patil Automation Pvt. Ltd. He points out from Patil Automation that discordant notes on Section 12A rendered by High Courts of Madras, Punjab and Haryana, Calcutta, Madhya Pradesh and Alla