IMPORTANT POINT
Rejection of plaint – Simply because plaintiffs did not succeed in obtaining interim relief, same cannot be a ground for rejection of plaint – Even a weak case for urgent relief cannot be thrown out.

JUDGMENT

Raja Basu Chowdhury, J.—Challenging the order dated 10th September, 2024 passed in Commercial Suit No. 1 of 2023 rejecting the application for rejection of the plaint under Order VII rule 11 of the Code of Civil Procedure 1908 read with Section 151 thereof (hereinafter referred to as the said Code), the instant revisional application has been filed.

2. The aforesaid application under Order VII rule 11 of the Code has been filed, inter alia, on the ground that the instant suit could not have been filed bypassing the remedy of mandatory pre-institution mediation as provided for in Section 12A of the Commercial Courts Act, 2015 (hereinafter referred to as the “said Act”) especially having regard to the fact that the plaint does not contemplate an urgent relief.

3. It may be noted that the instant suit was filed on 15th March, 2023 and simultaneously with the filing of the suit an injunction application was moved. However, since, there were deficit court fees, the learned Court by the order no.2 dated 16th March, 2023 refused to pass any interim order under the provisions of Order XXXIX rule 1 and 2 of the Code without payment of the deficit court fees. It appears that by order no.3 dated 23rd March, 2023, the factum of payment of deficit court fees of Rs.20/- had been recorded. By order no.4 dated 28th March, 2023, the learned Court refused to pass any ex parte interim order of injunction and directed service of notice on the defendants. By an order dated 14th July, 2023 the suit was dismissed for default. By the order no. 11 dated 5th March, 2024, the suit was restored by setting aside the order of ex parte dismissal dated 14th July, 2023. On 14th May, 2024 the defendant nos. 2 and 4 entered appearance and filed written objection to the application under Order XXXIX rule 1 and 2 of the Code. On the next date i.e. on 12th June, 2024 the defendant no.1 and 5 entered appearance by filing vokalatnama and also filed written statement and written objection to the injunction application. On the aforesaid date, an application under Order VII rule 11 of the Code read with Section 151 thereof was filed by the defendant nos. 1 and 5. It is the rejection of the aforesaid application under Order VII rule 11 of the code by the by the order dated 10th September, 2024, which formed subject matter of challenge in the present revisional application.

4. Mr. Guha, learned advocate appearing in support of the aforesaid application, on behalf of the defendant nos. 1 and 5/petitioners would submit that the law on the subject as to whether the mandatory provision of Section 12A of the said Act can be bypassed has already been settled. He would submit that the provisions of Section 12A of the said Act is mandatory. Unfortunately, when the plaint was filed bypassing such mandatory provision, the order recording presentation of the plaint did not record the satisfaction of the learned Judge that the suit contemplates an urgent relief. He would submit by placing reliance on the plaint that as to whether the suit contemplates urgent relief is required to be ascertained/gathered from the pleadings and averments contained in the plaint itself, on a holistic consideration thereof. He would submit that upon a scrutiny of the plaint, it would transpire that no urgent relief has been pleaded nor would the plaint demonstrate that any urgent relief has been sought for. The instant case is a clear case of bypassing mandatory provision of Section 12A of the said Act. By placing reliance on the judgment delivered in the case of Yamini Manohar v. T.K.D. Keerthi, reported in (2024) 5 SCC 815, he would submit that although, the provisions of Section 12A of the said Act may not require grant of a formal leave by a Court but the same does not do away with the object of consideration as to whether the suit contemplates an urgent relief or not. By relying on the said judgment, he would submit that the Hon’ble Supreme Court has specifically provided that the mandatory