ORDER

1. Paul, J. -- (1) This Miscellaneous Appeal filed under Order 43 rule 1(r) of Code of Civil Procedure, 1908 assails the order of commercial Court dated 8.3.2021, whereby the Court below has non-suited the appellant for not fulfilling the statutory requirements under section 12 A of the Commercial Courts Act, 2015.

2. In nutshell, the stand of learned counsel for the appellant is that the appellant is a private limited company and has copyright to use a product namely “Enerzy”. The respondent no.1 is unauthorizedly using the said product. The appellant instituted the suit under Order 8 rule 1 of the CPC read with section 55 of the Copyright Act, 1959, which was registered as case No.8656/2021. Along with the said suit, the appellant filed an application for interim relief and yet another application under section 12 A of the commercial courts Act. The commercial court by order dated 8.3.2021, dismissed the suit by holding that as per the appellant’s own saying, the cause of action have arisen in July, 2020 and 18th August, 2020. The suit was instituted on 4. 3.2021 i.e after six months from the date, the cause of action had originally risen. Perusal of plaint shows that there exists no urgency and hence interference is not warranted.

3. Learned counsel for the appellant submits that the Commercial Court has mainly assigned three reasons for not entertaining the suit:-

(i) There was no cause of action after 18th August, 2020, whereas the suit was instituted on 4.3.2021. In absence of any such cause of action and existence of urgency, the suit was not maintainable.

(ii) The appellant/plaintiff has directly approached the Court whereas in the factual backdrop of this matter, he should have adopted the alternative dispute resolution method through ‘institutional mediation’. Putting it differently, the opinion of commercial court was that if there exists no causes of action after 4.3.2021, there was no reason, why the plaintiff has not adopted the institutional mediation facility.

(iii) In absence of urgency and for not adopting institutional mediation, the suit is not maintainable as per section 12 A of Commercial Courts Act.

4. Criticizing the said order, learned counsel for the appellant submits that the Commercial Court was required to examine the plaint averments and documents in their totality. There are continuous cause of action and the product in question was being sold by the defendant without any authority. This causes financial harm to the appellant and has a potential to harm the public at large. The necessary ingredients were very much available in the plaint and Commercial Court had erred in rejecting the plaint on the ground that the appellant has failed to avail the remedy of the pre-institutional mediation.

5. During the course of hearing, learned counsel for the appellant placed reliance on the judgments of Bombay High Court in Ganga Taro Vazirani v. Deepak Raheja reported in 2021 SCC OnLine Bom 195 and judgment of Telangana High Court in M/s MK Food Products v. SH Food Products passed in CRP No.3690/2018. It is urged that the purpose of inserting section 12 A in the act is to encourage the parties to settle their dispute through mediation but in a case where there exists urgency, there is no bar or embargo to entertain the suit directly. In this case, the cause of action was not limited upto 4.3.2021, indeed, it continued thereafter and therefore, the Commercial Court was not justified in non-suiting the appellant on the ground that there exists no special cause of action after 4.3.2021. To attack this finding, heavy reliance is placed on the police complaint dated 23.11.2020, wherein the appellant requested the police authority to collect the Enerzy Powder which is being illegally sold by the defendant/company. Later on, the appellant himself could lay his hands on one such invoice dated 9.2.2021, which shows that the defendant is indulging in selling this product unauthorizedly. All these events a