* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 21.08.2024 Judgment delivered on: 02.09.2024 + CM(M) 459/2023 & CM APPL. 13679/2023 ADITY A BIRLA FASHION AND RETAIL LIMITED .....Petitioner versus MRS SAROJ TANDON ....Respondent Memo of Appearance For the Appellant: Mr. Varun Sharma with Mr. Akhil B Kukreja and Ms. Sanchita Chamoli, Advocates For the Respondents: Ms. Aastha Dhawan with Ms. Shalini Bhardwaj and Mr. Aditya Sharma, Advocates.

CORAM:

HON'BLE MR. JUSTICE MANOJ JAIN

JUDGMENT

MANOJ JAIN, J

1. This petition poses an interesting proposition.

2. The respondent herein owned one shop which was leased out to plaintiff/petitioner on 15.03.2013. Plaintiff, eventually, in light of the Covid-19 pandemic, was constrained to decide upon closure of its business operation from such leased shop. It issued notice of termination of lease and demanded refund of its security. Since, the security was not returned by the defendant/respondent, it thought of filing a commercial suit against the lessor (respondent herein) seeking recovery.

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3. Before institution of suit, plaintiff, however, filed an application in terms of Section 12-A of the Commercial Courts Act, 2015 before South District Legal Services Authority, Saket (South East) Courts (in short SDLSA) on 07.04.2021. Respondent/defendant, despite due service of the notice(s) summons by SDLSA, deliberately and intentionally avoided or failed to enter their appearance before the said authority. Accordingly, such process of mediation was declared as non-starter.

4. Resultantly, a suit was filed by plaintiff.

5. After institution of the suit, the defendant filed its written statement on 05.02.2022.

6. However, things did not stop there.

7. Defendant also lodged a counter-claim on 21.02.2022 seeking rentals etc.

8. Importantly, such counter-claim was also involving a commercial dispute and was, therefore, registered as a commercial suit.

9. Such counter claim was merely seeking recovery of money and did not contemplate any urgent relief.

10. However, since before lodging such counter-claim, the defendant had not invoked pre-institution mediation, the plaintiff filed an application under Order 7 Rule 11 CPC seeking rejection of such counter claim.

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11. Such application has been dismissed which has compelled the plaintiff to knock the doors of this court by filing instant petition under Article 227 of Constitution of India.

12. According to learned Trial Court though such process was mandatory for a suit, it was not necessary for a counter-claim.

13. The question is whether such recourse is obligatory or should be treated as optional in context of a counter-claim.

14. Before adverting to answer the same, it is important to take note of relevant provisions of Civil Procedure Code (CPC).

15. Order VIII Rule 6A CPC reads as under:

―(1) A defendant in a suit may, in addition to his right of pleading a set- off under rule 6, set up, by way of a counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not; Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.

CM(M) 459/2023 3 of 19 Signature Not Verified Digitally Signed (4) The counter claim shall be treated as a