Mandatory pre-institution mediation under Section 12A of the Commercial Courts Act must be adhered to unless genuine urgency is demonstrated; failure to comply leads to rejection of plaint.

Ajay Mohan Goel, Judge (Oral)

By way of this application, filed under Order VII, Rule 11(d) read with Section 151 of the Civil Procedure Code (hereinafter referred to as ‘CPC’), prayer has been made by the applicant for the rejection of the plaint.

2. Learned Senior Counsel for the applicant/defendant No.2 argued that as the subject matter of the present suit constitutes a commercial dispute as defined under Section 2 (c) (xvii) of the Commercial Courts Act, 2015 (hereinafter referred to as ‘the Act’), it was mandatory upon the plaintiff to comply with pre-institution mediation as provided under Section 12A (1) of the Act and in the present case as the plaintiff did not exhaust the said remeudy, therefore, the plaint is liable to be rejected on the saoid ground. He argued that the only exception to the abovCe mandatory compliance is when the party has prayed for an urgent relief and the party can demonstrate before the Court that in light of the fact that it is urging the Court to grant urgent relief, it is not in the peculiar facts of that case, required to go for a pre-litigation mediation in terms of the provisions of the Act. Learned Senior Counsel by referring to the judgments of the Hon’ble Supreme Court, which I will refer to in the later part of this order, argued that mere filing of an application for an interim injunction by the plaintiff is not sufficient and the Commercial Court is obliged to holistically examine and scrutinize the nature and subject matter and cause of action to affirm the genuineness of the urgency to seek an interim relief. He submitted that a perusal of the plaint demonstrates that herein the alleged cause arose in favour of the defendant in the month of April, 2023 when the first Cease and Desist notice was issued and since then the plaintiff has been sending such kind of notices or reminders to defendant No.2 and as the plaintiff approached the Court after a lapse of two years as from the udate when the cause of action accrued, without demonstroating any sufficient cause so as to seek any urgent inteCrim relief, the bypassing of the mandatory requirement of pre-litigation mediation cannot be condoned and the plaint deserves to be rejected under Order VII, Rule 11 of the CPC.

3. On the other hand, learned counsel for the non- applicant/plaintiff submitted that a perusal of the plaint clearly demonstrates that when the suit was filed by the plaintiff along- with an application under Order XXXIX, Rules 1 and 2 of the CPC praying for interim relief, the fact situation necessitated the plaintiff to approach the Court to seek urgent relief in light of the conduct of the applicant/defendant No.2 who was flagrantly violating the trademark of the plaintiff and as in this regard the last cause of action arose in the month of December, 2024, as is clearly spelled out in the plaint, and thereafter, as the plaintiff immediately approached this Court by way of the suit as well as the application for urgent relief, the plaintiff was not obliged to resort to the pre-litigation mediation and, therefore, as there is no merit in the application, the same be dismissed.

4. I have heuard learned Senior Counsel for the applicant/defendaont No.2 as well as learned counsel for the non-applicanCt/plaintiff and have also gone through the contents of the application as well as the reply thereto and the plaint.

5. By way of this Civil Suit, the plaintiff has, inter alia, prayed for the following reliefs:-

“(i) decree of permanent and mandatory injunction restraining Defendants, partners, proprietors, directors, employees, officers, servants, a