Mandatory compliance with Section 12A of the Commercial Courts Act, 2015 for suits not contemplating urgent interim relief, and the prevention of deceptive invocation of urgent relief to circumvent the statutory obligation of pre-litigation mediation.

JUDGMENT :

SHEKHAR B. SARAF, J.

1. This is a first appeal against an order dated October 31, 2023, wherein the application filed by the respondents/defendants under Order VII Rule 11 read with Section 151 of the Civil Procedure Code, 1908 in Original Suit No. 15 of 2023 was allowed and the plaint filed by the appellant/plaintiff was rejected.

2. Upon perusal of the impugned order, it appears that the trial court enquired into the earlier factual matrix of the case and indicated that earlier a suit being Original Suit No. 4 of 2022 was filed by the appellant without any application made for any urgent interim relief. Subsequently, the applicant sought to withdraw the said suit by way of making an application. The applicant also sought liberty to file a fresh suit. The said suit was allowed to be withdrawn vide order dated January 3, 2023.

3. Thereafter, second suit being Suit No. 15 of 2023 was filed by the appellant along with an application seeking urgent interim relief. It was noted by the trial court that in the first suit, no prayer for grant of urgent interim relief was made by the appellant. Therefore, the trial court concluded that the prayer made for urgent interim relief is “imaginary” and Section 12A of the Commercial Courts Act, 2015 (hereinafter referred to as the ‘Act’), which mandates pre-litigation mediation, could not have been bypassed.

4. Sri Ashish Kumar Srivastava, learned counsel appearing on behalf of the appellant has placed reliance on the judgment of the Calcutta High Court in M/s Odisha Slurry Pipeline Infrastructure Ltd. and Another vs. IDBI Bank Ltd. and Others, 2022 SCC Online Cal. 3951, the Delhi High Court in Yamini Manohar vs. T.K.D. Keerthi, 2022 SCC Online Del. 2653 which was affirmed by the Supreme Court in Yamini Manohar vs. T.K.D. Keerthi, 2023 SCC Online SC 1382 to buttress his argument that in a trademark suit, there is always an urgency. Accordingly, the provision of Section 12A of the Act was not needed to be complied with by the appellant.

5. Per contra, Sri Mohd. Arif, learned counsel appearing on behalf of the respondents has submitted that the aforesaid judgments relied upon by the learned counsel appearing on behalf of the appellant would not apply to the instant case, as the factual matrix in the instant case is different from those cases insofar is it clear that there was no urgency demonstrated by the appellant in the instant case. This is further evident from the fact that the appellant filed the first suit without any application seeking urgent interim relief. He further submitted that the trial court has, in detail, examined the facts and only thereafter concluded that the urgency contemplated in the present plaint is imaginary in nature.

Analysis and Conclusion

6. I have heard the learned counsel appearing on behalf of the parties.

7. Before delving into the controversy in the instant case, I feel it pertinent to extract Section 12A of the Act herein as under:

“12A. Pre-litigation Mediation and Settlement:

(1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-litigation mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.

(2) For the purposes of pre-litigation mediation, the Central Government may, by notification, authorize:

(i) the Authority, constituted under the Legal Services Authorities Act, 1987 (39 of 1987).

(ii) a mediation service provider as defined under clause (m) of Section 3 of the Mediation Act, 2023.

(3) Notwithstanding anything contained in the Legal Services Authorities Act, 1987 (39 of 1987), the Authority or mediation service provider authorised by the Central Government under sub-section (2) shall complete the process of mediation within a period of one hundred and twenty days from the date of application made by the plaintiff under sub-section (1):

Provided that the period of mediation may be extended for a