(01.07.2021)

Sujoy Paul, J.

1)

This Miscellaneous Appeal filed under Order 43 Rule 1(r)

of Code of Civil Procedure, 1908 assails the order of

commercial Court dated 08.03.2021, whereby the Court below

has non-suited the appellant for not fulfilling the statutory

requirements under section 12-A of the Commercial Courts Act,

2015.

2)

In nutshell, the stand of learned counsel for the appellant

is that the appellant is a private limited company and has

copyright to use a product namely “Enerzy”. The respondent

no.1 is unauthorizedly using the said product. The appellant

instituted the suit under Order 8 Rule 1 of the CPC read with

section 55 of the Copyright Act, 1959, which was registered as

(3)

case no.8656/2021. Alongwith the said suit, the appellant filed

an application for interim relief and yet another application

under section 12-A of the Commercial Courts Act. The

commercial Court by order dated 08.03.2021, dismissed the suit

by holding that as per the appellant's own saying, the cause of

action have arisen in July, 2020 and 18^th August, 2020. The suit

was instituted on 04.03.2021 i.e after six months from the date,

the cause of action had originally arisen. Perusal of plaint shows

that there exists no urgency and hence interference is not

warranted.

3)

Learned counsel for the appellant submits that the

commercial Court has mainly assigned three reasons for not

entertaining the suit:-

i) There was no cause of action after 18^th August, 2020,

whereas the suit was instituted on 04.03.2021. In absence of any

such cause of action and existence of urgency, the suit was not

maintainable.

ii) The appellant/plaintiff has directly approached the

Court whereas in the factual backdrop of this matter, he should

have adopted the alternative dispute resolution method through

'institutional mediation'. Putting it differently, the opinion of

commercial Court was that if there exists no causes of action

after 04.03.2021, there was no reason, why the plaintiff has not

adopted the institutional mediation facility.

iii) In absence of urgency and for not adopting

institutional mediation, the suit is not maintainable as per

section 12-A of Commercial Courts Act.

4)

Criticizing the said order, learned counsel for the

appellant submits that the commercial Court was required to

examine the plaint averments and documents in their totality.

There are continuous cause of action and the product in question

(4)

was being sold by the defendant without any authority. This

causes financial harm to the appellant and has a potential to

harm the public at large. The necessary ingredients were very

much available in the plaint and commercial Court had erred in

rejecting the plaint on the ground that the appellant has failed to

avail the remedy of the pre-institutional mediation.

5)

During the course of hearing, learned counsel for the

appellant placed reliance on the judgments of Bombay High

Court in Ganga Taro Vazirani Vs. Deepak Raheja reported in

2021 SCC OnLine Bom 195 and judgment of Telangana High

Court in M/s MK Food Products Vs. SH Food Products passed

in CRP No.3690/2018. It is urged that the purpose of inserting

section 12-A in the act is to encourage the parties to settle their

dispute through mediation but in a case where there exists

urgency, there is no bar or embargo to entertain the suit directly.

In this case, the cause of action was not limited upto 04.03.2021,

indeed, it continued thereafter and therefore, the commercial

Court was not justified in non-suiting the appellant on the

ground that there exists no special cause of action after

04.03.2021. To attack this finding, heavy reliance is placed on

the police complaint dated 23.11.2020, wherein the appellant

requested the police authority to collect the Enerzy Powder

which is being illegally sold by the defendant/company. Later

on, the appellant himself could lay his hands on one such

invoice dated 09.02.2021, which shows that the defendant is

indulging in selling