IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI &

HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA th ON THE 4 OF JANUARY, 2024 MISC. PETITION No. 3837 of 2022 BETWEEN:-

1. PUSHPSHREE HOSPITALS AND RESEARCH CENTRE THROUGH PROPRIETOR DR. GIRISH TAORI 12-13, PRAKASH NAGAR, NAVLAKHA INDORE (MADHYA PRADESH)

2. DR. GIRISH TAORI S/O SHRI M.M. TAORI, AGED ABOUT 57 YEARS, OCCUPATION: PROPRIETOR PUSHPSHREE HOSPITALS AND RESEARCH CENTRE 12-13, PRAKASH NAGAR, DISTIRCT INDORE. (MADHYA PRADESH)

.....PETITIONERS (SHRI KARPE PRAKHAR MOHAN, COUNSEL FOR PETITIONERS).

AND

1. KOTHARI CHEMIST (PROPRIETORSHIP CONCERN) THROUGH PROPRIETOR JAGDISHCHANDRA S/O LATE SHRI MANAKCHAND KOTHARI, AGED 78 YEARS, OCCUPATION: BUSINESS 14 PRAKASH NAGAR INDORE (MADHYA PRADESH)

2. JAGDISHCHANDRA S/O LATE SHRI MANAKCHAND KOTHARI OCCUPATION: PROPRIETOR KOTHARI CHEMIST 14, PRAKASH NAGAR, DISTRICT INDORE (MADHYA PRADESH)

.....RESPONDENTS (SHRI YOGESH KUMAR MITTAL, COUNSEL FOR THE RESPONDENTS).

This petition coming on for admission this day, Justice Sushrut Arvind Dharmadhikari passed the following:

Signature Not Verified

ORDER

This Miscellaneous Petition under Article 227 of the Constitution of India assails the order dated 01.07.2022 (Annexure-P/4) passed in Comms- 20/2022 whereby the application under Order 7 Rule 11 of the Code of Civil Procedure, filed by the petitioners/defendants has been rejected.

2. Briefly stated facts of the case are that the respondents are plaintiffs before the trial Court who have filed a suit for recovery under Order 7 Rule 1 of the CPC read with Section 16 of the Commercial Courts Act, 2015 (hereinafter referred to as the Act of 2015). On the basis of the transactions and averments, plaintiffs have sought recovery of the amount. After issuance of notice, petitioners/defendants filed an application under Order 7 Rule 11 of CPC contending that Section 2 of the Commercial Courts Act defines "Commercial Disputes" and looking to the aforesaid definition, the alleged transaction is not covered under any of the clauses mentioned in Section 2 of the Act and therefore, the provisions of the Act are not applicable and the plaint is liable to be rejected. Another ground that was raised in the application was the non- compliance of Section 12-A of the Act as the suit was filed without exhausting the remedy of pre-institution mediation, hence the same is not maintainable.

3. Learned trial Court, while passing the impugned order held that as per Section 2 (1)(c-xviii) which provides for 'Agreement for sale of goods or provisions of services', there is a commercial dispute between the parties. It was further held that the compliance of provisions of Section 12-A of the Act of 2015 is not mandatory, and accordingly the application under Order 7 Rule

11 filed by the petitioners/defendants was rejected. Hence, this petition.

4. Learned counsel for the petitioners contended that the trial Court has failed to consider that the alleged transactions cannot be said to be falling within Signature Not Verified the purview of the commercial dispute as defined under Section 2 of the Act of 2015. If a recovery suit is treated to be and tried in Commercial Court, then the purpose of enactment of the Act of 2015 will be frustrated. Further, the trial Court has erred in holding that compliance of Section 12-A of the Act are not mandatory. The provisions of Section 12-A is clear and unambiguous, which shows that a suit which does not contemplate any urgent interim relief under this Act cannot be instituted unless the plaintiff exhausts the remedy of pre- institution mediation. Hence, the impugned order passed by the trial Court is illegal and contrary to law and deserves to be set aside. In support of his contention, learned counsel for the petitioners placed reliance on the judgment passed by the Apex Court in case of Patil Automation Pvt. Ltd. & Ors. vs.

Rakheja Engineers Pvt. Ltd., (2022) 10 SCC 1

5. Per contra, learned counsel for the re