ORDER

% 18.03.2024

1. This hearing has been done through hybrid mode.

I.A. 6325/2024 (for exemption)

2. This is an application seeking exemption from filing cleared/typed or translated copies of documents, left side margins, electronic documents, etc.

Original documents shall be produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the DHC (Original Side) Rules,

2018.

3. Exemption is allowed, subject to all just exceptions.

4. Accordingly, the application is disposed of.

CS(COMM) 235/2024

5. Let the plaint be registered as a suit.

6. This is a suit filed by the Plaintiff-Aircon Engineers Pvt. Ltd. seeking recovery of a sum of Rs. 2,14,37,239/- in terms of HVAC (Heating, Ventilation & Air-conditioning) works, that the Plaintiff undertook for the Defendant-Nimitaya Infotech Pvt. Ltd. at its IT Building at Plot No.108, The Order is downloaded from the DHC Server on 19/03/2024 at 20:42:05

Phase-I, Udyog Vihar, Gurgaon. For the same, the parties entered into a contract dated 10th October, 2013 (hereinafter, the ‘Agreement’).

7. The Plaintiff states that in terms of the agreement, it completed the work and the Defendant issued a completion certificate on 17th August,

2018. However, the Defendant did not pay the outstanding amount and the defect liability period was completed in August, 2019.

8. The Plaintiff on 22nd July, 2020 approached the National Company Law Tribunal (hereinafter, ‘NCLT’) under Section 9 of the IBC, 2016. In the said NCLT petition, a judgment was rendered on 14th October, 2022 where there was a difference of opinion between the two members and the matter was referred to a third member. On 17th February, 2023 the NCLT held that since the Defendant has raised a dispute with regard to the claim of the Plaintiff, petition under Section 9 of the IBC, 2016 cannot be maintained.

9. At the outset, Mr. Anuj Aggarwala, ld. Counsel appearing for the Plaintiff submits that the Plaintiff has not moved an application under Section 12A of the Commercial Courts Act, 2015 and seeks exemption as there has been one round of litigation before the NCLT already.

10. Under such circumstances, the Court is of the opinion that in terms of the judgement of the Hon’ble Supreme Court in Yamini Manohar v. T.K.D Keerthi, (2023 LiveLaw (SC) 906), no specific application needs to be filed to waive the process of pre-litigation mediation. Accordingly, exemption under Section 12A of the Commercial Courts Act, 2015 is granted.

11. Issue summons in the suit to the Defendant through all modes upon filing of Process Fee.

The Order is downloaded from the DHC Server on 19/03/2024 at 20:42:05

12. Let the written statement to the plaint be filed within 30 days. Along with the written statement, the Defendant shall also file an affidavit of admission/denial of the documents of the Plaintiff, without which the written statement shall not be taken on record.

13. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statement. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendant, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.

14. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.

15. List before the Joint Registrar on 9th May, 2024.

16. List before the Court on 27th August, 2024.

PRATHIBA M. SINGH, J. MARCH 18, 2024/dk/rks The Order is downloaded from the DHC Server on 19/03/2024 at 20:42:06