JUDGEMENT

JYOTI SINGH, J. (ORAL)

C.M. No. 30455/2023 (exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

C.R.P. 150/2023 & C.M. No. 30454/2023 (stay)

3. By this revision petition, the Petitioner assails an order dated 02.03.2023 passed by the Trial Court dismissing the application filed by the Petitioner under Order VII Rule 11 CPC. Petitioner herein is the Defendant before the Trial Court while the Respondent is the Plaintiff and parties hereinafter are referred to by their litigating status before the Trial Court.

4. Narrative of facts as captured in the revision petition is that Defendant is a Proprietorship concern carrying on the activity of interior designing and renovation work of constructed properties. In June, 2021 Defendant approached the Plaintiff for interiors and renovation work of his property and after initial negotiations and discussions, an estimated price was worked out between the parties for the entire project. However, after some work was carried out the parties fell apart and Plaintiff sent a legal notice dated 23.11.2021 to the Defendant demanding the alleged outstanding amounts due to the Plaintiff. Failing to receive the said amounts, Plaintiff filed a suit for recovery of Rs.29,36,498/- being CS (COMM) No. 418/2021.

5. It is averred in the petition that with the intervention of acquaintances and friends, settlement was arrived at between the parties on 04.03.2022 and Plaintiff carried out further work in the concerned property. An invoice for the balance amount was raised by the Plaintiff on the Defendant, which was not paid. On account of the settlement agreement, the earlier suit was withdrawn by the Plaintiff and the present suit was filed subsequently for recovery of Rs.8,85,460/- along with applicable GST and pendente lite and future interest @ 18% p.a.

6. Upon service of summons, Defendant filed his written statement and an application under Order VII Rule 11 CPC for rejection of plaint on account of failure on the part of the Plaintiff to exhaust the remedy of pre-institution mediation as mandatorily required under Section 12A of the Commercial Courts Act, 2015 (hereinafter referred to as the ‘Act 2015’). It was urged in the application that Plaintiff had neither filed an application seeking exemption or leave from resorting to pre-institution mediation and relied on the judgment of the Supreme Court in Patil Automation Private Limited and Others v. Rakheja Engineers Private Limited, (2022) 10 SCC 1, in this regard.

7. Plaintiff, on the other hand, opposed the application on the ground that along with the plaint an application had been filed for urgent interim relief under Order XXXIX Rules 1 and 2 CPC read with Order XXXVIII Rule 5 CPC and therefore the Plaintiff was not required to take recourse to the remedy of pre-institution mediation under Section 12A of Act 2015.

8. The Trial Court was of the view that since an urgent interim relief was contemplated, Plaintiff was not bound to take recourse to the remedy of pre-institution mediation and whether or not the Court would grant the relief sought was irrelevant for deciding whether the plaint ought to be rejected on the ground of the failure of the Plaintiff to take recourse to the remedy and thus the Trial Court dismissed the application.

9. Challenging the impugned order, learned counsel for the Defendant contends that the Trial Court has failed to consider the settled position of law that if by means of clever drafting, a camouflage or illusionary urgent relief is created, such cases should be nipped in the bud. Plaintiff had initially filed the plaint with an application under Order XXXIX Rules 1 and 2 CPC read with Order XXXVIII Rule 5 CPC seeking attachment before judgment by way of freezing the bank account of the Defendant, although the suit is a simplicitor suit for recovery. Defendant is the owner of the property in question, which carries a valuation far in excess of the amounts allegedly due to the Plai