IMPORTANT POINT
Rejection of plaint – Commercial suit which does not contemplate any urgent relief under Commercial Courts Act shall not be instituted unless plaintiff exhausts remedy of Pre-Institution Mediation.

JUDGMENT

Ajay Mohan Goel, J.—By way of this application, filed under Order, VII, Rule 11 (C) read with Section 151 of the Civil Procedure Code, the applicants/defendants have prayed for rejection of the plaint, inter alia, on the ground that the plaint is barred by law.

2. As per the applicants, as admittedly the subject-matter of the suit constitutes a “commercial disputes”, as defined under Section 2(c)(xvii) of the Commercial Courts Act, 2015, therefore, the non-applicant/plaintiff was mandatorily required to comply with Pre-Institution Mediation, as enunciated under Section 12-A (1) of the Act and the only exception, being cases where urgent relief was involved; and as in terms of the law declared by Hon’ble Supreme Court of India, mere filing of an application for interim relief is not sufficient and a Commercial Court is obliged to holistically examine and scrutinize the nature, subject-matter and cause of action to affirm the genuineness in the urgency to seek and interim injunction and as the plaintiff had sought an exemption from complying the Pre-Institution Mediation on account of seeking urgent injunctive relief, whereas perusal of the plaint along with documents demonstrates that there was no urgency so as to allow the plaintiff to do away with the provisions of Section 12-A (1) of the Act, the plaint was liable to be rejected.

3. Learned counsel for the applicants/defendants have taken the Court through the averments made in the plaint and has submitted that in terms of the averments made in Para-60 onwards of the plaint, as per the plaintiff the cause of action accrued in favour of the plaintiff, on or about the month of July/August, 2022, when it received information about the infringements of its patents and design. The cause of action thereafter arose on 14.10.2022, when plaintiff terminated Distributor Agreement and informed defendant No.1 about its subsisting patent rights. The cause of action was renewed when plaintiff issued Cease-and-Desist notice on 23.12.2022 to defendant No.2, calling upon it to cease all further activities with respect to the plaintiff’s patents and design rights and it again arose and continued when despite knowledge of the patents and design rights and grant thereof in favour of plaintiff, defendants continued to make, use, offer for sale and sell at various physical and online portals including, but not limited to www.indiamart.com without plaintiff’s consent the axial fans, which was in violation of patents and design rights of the plaintiff. Thereafter, by referring to Paras 61 and 62 of the plaint, learned counsel submitted that in terms of the averments made therein, the cause of action again arose in December, 2023, when a technical expert, Mr. Peter Holt after conducting visual inspection, evaluation and analysis, confirmed that the impugned fans infringes the plaintiff’s patents and design and as per the plaintiff, the cause of action was continuing and it arose each time, the defendants make, use, offer for sell the impugned fans, through online presence, both direct and via e-commerce website and cause of action was continuing as defendants were regularly carrying on business and soliciting business and derive revenue from goods and services provided to individuals within the territorial jurisdiction of the State.

4. Learned counsel submitted that it is evident from the averments made in the plaint that as per the plaintiff, the cause of action initially accrued in the month of July/August, 2022, then on 14.10.2022 and thereafter, on 23.12.2022 and then again in the month of December, 2023, whereas the suit was filed in the Court in the month of June, 2024. He submitted that in terms of Section 12-A (1) of the Commercial Courts Act, 2015, a suit which does not contemplate any urgent interim relief under the Commercial Courts Act, shall not be instituted unless the plaintiff exhausts the remedy of Pre-Institution Mediation, in accordance with such manner and procedure, as m