Calcutta High Court
Anr vs Mahalaxmi Enterprise on 10 March, 2026
Author: Aniruddha Roy
Bench: Aniruddha Roy
In the High Court at Calcutta
Commercial Division
Original Side
Judgment (2)
PRESENT :
THE HON'BLE JUSTICE ANIRUDDHA ROY
CS-COM/27/2026
SRIGOPAL YARN TRADING
PRIVATE LIMITED AND
ANR.
Vs
MAHALAXMI ENTERPRISE
AND ORS.
For the plaintiff : Mr. Nirmalya Dasgupta, Adv.
Mr. R. L. Mitra, Adv.
Ms. Priyanka Dhar, Adv.
Heard on : March 10, 2026
Judgment on : March 10, 2026
[In Court]
ANIRUDDHA ROY, J :
FACTS :
1. The plaintiffs claim to have sold and delivered materials to the defendants. The first defendant is the unregistered partnership firm and rest are the partners. The suit has been filed for recovery 2 of price of goods sold and delivered by the plaintiffs to the defendants. On the basis of the averments made in paragraph 55 onwards of the plaint, the plaintiffs contemplate an urgent interim relief and therefore prays for dispensation of the formalities under Section 12A of the Commercial Courts Act, 2015 (for short "CC Act") for not travelling to the pre-litigation mediation.
SUBMISSIONS:
2. After placing the averments made in the plaint contemplating urgency, Mr. Nirmalya Dasgupta, learned Advocate appearing for the plaintiff has placed reliance on the Division Bench judgment of this Hon'ble Court In the matter of : "Shristi Infrastructure Development Corporation Limited Vs. Sarga Hotel Private Limited and Another reported at 2024 SCC OnLine Cal 7817".
3. He has also placed reliance on a judgment of this Court dated November 7, 2025 In the matter of : "Berger Paints India Limited vs. GPHP Holdings Pvt. Ltd." rendered in IA No. GA-
COM/3/2025 in CS-COM/48/2025.
4. Mr. Dasgupta submits the test is not whether an urgent interim relief is immediately required but whether averments in the plaint speaks of a situation where an urgent interim relief is contemplated. If such an averment is there the formalities under Section 12A of the CC Act shall be dispensed with.
CS-COM/27/2026 A.R., J.
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5. The Hon'ble Division Bench In the matter of : Shristi Infrastructure Development Corporation Limited (supra) had observed as under:
"29. Now, let us take a look at some decisions. With regard to the meaning which has to be ascribed to the phrase "if a suit contemplates an urgent relief", a division bench of this Court in Gavrill Metal Pvt. Ltd. v. Maira Fabricators Pvt. Ltd., 2023 SCC OnLine Cal 2443 remarked:-
"16. The legislature, in my opinion, has used the expression "contemplated" to express the intention that an interim relief may be required at the time of filling of the suit or may be required any time the defendant expresses an intention to do some act to defeat the decree to be passed.
17. So, the test, in my opinion, is not whether an urgent interim. relief is immediately required but whether the averments in the plaint point to a situation where even before expiry of three months, the plaintiff may have the need to obtain interim relief."
CS-COM/27/2026 A.R., J.
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31. Say the plaint discloses a simple money suit, but it is likely that on notice of it, the defendant might start disposing of some of his assets to defeat the decree that might be passed against him. So, the plaintiff may "contemplate" the urgent relief of an attachment before judgment but need not plead it in the plaint, as the cause of action has not arisen at the time of institution of the suit.
32. Please note the wording of 12A(1). The legislature does not mention "plaint". It uses the word "suit". It employs the word "contemplation". Hence it avoids such words as "averments or statements in the plaint". In other words, the legislature does not say that from the statements or averments in the plaint urgent reliefs obtainable by the plaintiff should be apparent. I would interpret the Section as suggesting that if at the time of presentation of the plaint before the judge from the averment in the plaint and an affidavit to be filed by the plaintiff it would appear that in the contemplation of the plaintiff a situation for urgent relief might arise in the period when mediation has to be undergone, the court may allow the plaintiff to institute the suit without mediation.
CS-COM/27/2026 A.R., J.
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33. On the basis of the declaration that urgent relief is contemplated, the plaintiff should be allowed to present the plaint. The court should not ordinarily interfere with such assertion unless it is shown to be palpably erroneous or mala fide. Once, the plaintiff is allowed to file a suit without pre-litigation mediation the discretion of the court should not be allowed to be interfered with at a later stage. Otherwise the proceedings are likely to become very dilatory. Even after filing of the suit the parties can be referred to mediation, if the facts so warrant.
34. In this case, although the claim is monetary, there is a pleading that since the defendant is incurring heavy losses some urgent interim relief may be sought by the plaintiff. The learned judge should have accepted this averment and allowed the plaintiff to institute the suit without Section 12A pre-litigation mediation requirement. Instead of that the learned judge has tried to probe the nature, ambit and merits of the claim which at that stage was wholly unnecessary."
6. Mr. Dasgupta has also relied upon another judgment of the Hon'ble Division Bench In the matter of : "Gavrill Metal Pvt.
CS-COM/27/2026 A.R., J.
6Ltd. vs. Maria Fabricators Pvt. Ltd. reported at 2023 SCC OnLine Cal 2443".
7. The Hon'ble Division Bench In the matter of : Gavrill Metal Pvt. Ltd. (supra), had observed as under:
"16. The legislature, in my opinion, has used the expression "contemplated" to express the intention that an interim relief may be required at the time of filing of the suit or may be required any time the defendant expresses an intention to do some act to defeat the decree to be passed.
17. So, the test, in my opinion, is not whether an urgent interim relief is immediately required but whether the averments in the plaint point to a situation where even before expiry of three months, the plaintiff may have the need to obtain interim relief.
22. In my view, the expression an urgent relief is contemplated signifies the inbuilt case in the plaint from where it could be inferred that in all likelihood an interim relief may be required in the period of three months."
CS-COM/27/2026 A.R., J.
7DECISION:
8. In the light of the law settled above and on reading of the averments made in the plaint, this Court is of the considered view that the tests under Section 12-A of CC Act is not whether the prayer for urgent interim relief actually comes to be allowed or not, but whether on a scrutiny of the nature and subject matter of the suit and the cause of action pleaded in the plaint, the prayer of urgent interim relief by the plaintiff could be said to be contemplable when the matter is judged from the view taken by the plaintiff.
9. In view of the foregoing reasons and discussions and on reading the averments made in the plaint, it appears to this Court that the plaint contains averments contemplating urgent interim relief. Hence, the formalities for travelling to pre-litigation mediation under Section 12A of the CC Act, stands dispensed with and leave is granted to the plaintiffs to institute the suit without compliance of the said formalities.
10. Now comes the question of leave under Clause 12 of the Letters Patent, 1865.
11. In view of the averments made in paragraphs 13, 14 and 101 from the plaint, leave is granted under Clause 12 of the Letters Patent, 1865.
CS-COM/27/2026 A.R., J.
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12. On the basis of the averments made in paragraphs 102 and 103 of the plaint, leave is granted under Order II Rule 2 of Code of Civil Procedure, 1908.
13. The plaint stands admitted, subject to scrutiny by the Department.
(ANIRUDDHA ROY, J.) SK CS-COM/27/2026 A.R., J.