ORAL ORDER

The defendants in Com.O.S.No.490/2024 pending consideration before the LXXXIV Additional City Civil and Sessions Judge, Bengaluru (henceforth referred to as 'Commercial Court') have filed this petition challenging an order dated 03.09.2024 by which, an application (I.A.No.2) filed by them under Order VII Rule 11(a) and (d) of the Code of Civil Procedure, 1908 (henceforth referred to as 'CPC') read with Section 12A of the Commercial Courts Act, 2015 (henceforth referred to as 'Act, 2015') was rejected.

2. The parties shall henceforth be referred to as they were arrayed before the Commercial Court. The petitioners herein were the defendants, while the respondent was the plaintiff before the Commercial Court.

3. (i) The plaintiff filed Com.O.S.No.490/2024 for recovery of Rs.14,63,65,726/- along with interest at the rate of 24% per annum, arising out of certain commercial transactions entered into with the defendants. Along with the suit, an application was filed under Order XXXVIII Rules 1 and 2 read with Section 151 of CPC for a direction to the defendants to furnish security for the suit amount at the time of their appearance. In the affidavit accompanying the application, the plaintiff claimed that the defendant No.2 owned property bearing site No.37 of Ravuthanahalli, Dasanapura Hobli, Bengaluru North Taluk and other properties in and around Bengaluru, Nanjanagudu and Shivamogga. The plaintiff claimed that the defendants were not trustworthy and that they were preparing to dispose off the assets so as to defeat the decree that may be passed in the suit. It claimed that due to the code of conduct, in view of elections to the Indian Parliament, it could not secure the details of the properties. The plaintiff therefore, sought for an urgent order to direct the defendants to furnish security.

(ii) The Commercial Court therefore, entertained the suit without the plaintiff undergoing the process of a pre- institution mediation as prescribed under Section 12A of the Act, 2015.

4. The defendants entered appearance and filed their written statement. They also filed an application under Order VII Rule 11(a) and (d) of CPC read with Section 12A of the Act, 2015 to reject the plaint in view of the plaintiff not producing the Pre-Institution Mediation report.

5. This application was contested by the plaintiff who claimed that Section 12A of the Act, 2015 is not mandatory if an urgent relief is sought for. It contended that a party could still approach the Court without undergoing the process of mediation as prescribed under Section 12A of the Act, 2015.

6. The Trial Court in terms of the impugned order, rejected the application filed by the defendants.

7. Being aggrieved by the said order, the defendants are before this Court in this writ petition.

8. The learned counsel for the defendants submitted that Section 12A of the Act, 2015, mandates that every suit filed before the Commercial Court should undergo the process of a pre-institution mediation, as prescribed under Section 12A. He contends that by virtue of filing an innocuous application such as the one on hand, the plaintiff cannot short-circuit Section 12A of the Act, 2015. In support of this contention, he relied on the judgment of Hon'ble Apex Court in M/s Patil Automation Private Limited and others vs. Rakheja Engineers Private Limited [2022 Livelaw (SC) 678]. He contends that the application under Order XXXVIII Rules 1 and 2 read with Section 151 of CPC shows that it is designed to overcome Section 12A of the Act, 2015 as the plaintiff was not serious in pleading that there was an imminent threat of the defendants disposing their properties to defeat its claim. He contends that the purpose of Order XXXVIII Rule 5 of CPC is not to convert an unsecured debt into a secured debt as held by the Hon'ble Apex Court in the case of Raman Tech. and Process Engg. Co. & another vs. Solanki Traders [AIR Online 2007 SC 80].

9. I have considered the submissions of the learned counsel for th