ORDER

1. This appeal filed under section 13(1) of Commercial Courts Act, 2015 (in short 'Act of 2015') assails the order dated 10.1.2023 (Annexure A/1) whereby the learned Commercial Court, Jabalpur has non-suited the present appellants for following twin reasons :--

(i) No cause of action has arisen within the territorial jurisdiction of Commercial Court, Jabalpur.

(ii) The process of pre-litigation mediation has not been followed and therefore, in the teeth of section 12(A) of Act of 2015, the suit cannot be entertained.

FACTUAL BACKDROP :-

2. Briefly stated, the case of the appellants is that it is involved in the business of manufacturing and supply of agricultural pipes including but, not limited to HDPE Coil pipes, column pipes, rigid agriculture pipes and irrigation pipes etc. The appellants came to know that the defendants, who are also manufacturer and supplier of irrigation pipes were manufacturing, selling and supplying irrigation pipes using the same design and colour combination of red and black for their products as that of the present appellants.

3. When the appellants came to know about it, he filed an application under Order VII rule 1 of CPC seeking permanent injunction restraining infringement of copyright, trade-mark, passing off, unfair competition, dilution, delivery, rendition of accounts etc., and also for claiming compensation. Along with the said application, the appellants have also filed two more applications under Order XXXIX rule 1 and 2 of CPC and Order XXXIX rule 3 of CPC.

4. The Court below by impugned order non-suited the appellants for the said twin reasons. It is submitted that without putting the other side to notice, appellants were non-suited in exercise of power under Order VII rule 11 of CPC. Since, the other side did not enter appearance before the Court below, without notice to the other side, this matter can be heard and decided.

CONTENTIONS :-

5. Shri Brian D'Silva, learned Senior counsel assisted by Shri S.S. Oberoi submits that twin reasons on the strength of which appellants are non-suited cannot sustain judicial scrutiny. Firstly, appellants are non-suited on the ground that no part of cause of action has arisen within the territorial jurisdiction of Commercial Court, Jabalpur. The Court below opined that the manufacture, sale and distribution of material in question did not take place in the jurisdiction of Commercial Court, Jabalpur. This finding is factually incorrect because the appellants pleaded about it in Para-6 of his aforesaid application preferred under Order VII rule 1 of C.P.C. Invoice/documents were filed to substantiate the pleadings. In his interim application, in Para-14, it is averred that cause of action has occurred in the territorial jurisdiction of this Court and, therefore, without examining those averments, Court below has reached to a conclusion which runs contrary to record/pleadings. In support of this submission, he placed reliance on a Division Bench judgment of this Court reported in 2021 (3) MP LJ 715 (Curewin Pharmaceuticals (P) Ltd. v. Curewin Hylico Pharma (P) Ltd.)

6. Criticizing the second reason for non-suiting the appellants, learned Senior counsel has drawn our attention to the language employed in section 12-A of the Act of 2015. It is submitted that when application of appellants under Order VII rule 1 was pregnant with two more applications filed under Order XXXIX rule 1 and 2 and Order XXXIX rule 3 of C.P.C, wherein appellants prayed for interim relief, by no stretch of imagination, appellants could have been non-suited for not fulfilling the requirement of mediation. In support of this submission, he placed reliance on a recent judgment of Supreme Court reported in 2022 (10) SCC 1 (Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd.).

7. No other point is pressed by learned Senior counsel. We have heard him at length and perused the record.

FINDINGS :--

8. As rightly pointed out, the appellants are non-suited for twin reasons. The