Bombay High Court
Deelight Fortune Pvt. Ltd. And Anr vs Housing Development Finance ... on 25 July, 2022
Bench: N. J. Jamadar
40-IA-1275-21.doc
Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANTOSH
SUBHASH ORDINARY ORIGINAL CIVIL JURISDICTION
KULKARNI
Digitally signed by
SANTOSH SUBHASH
IN ITS COMMERCIAL DIVISION
KULKARNI
Date: 2022.07.27
11:24:16 +0530
INTERIM APPLICATION (L) NO. 1275 OF 2021
IN
COMMERCIAL SUMMARY SUIT NO. 19 OF 2021
Deelight Fortune Private Limited & Anr. ...Applicants/
Orig. Defendants
In the matter between
M/s. Housing Development Finance
Corporation Limited ... Plaintiff
Vs.
Deelight Fortune Private Limited & Anr ...Defendants
Ms. Mithila Damle a/w Ms. Sharanya Shivaraman, for the Plaintiff.
Mr. Umang Mehta i/b Taurus Legal, for Applicants/Ori. Defendants.
CORAM : N. J. JAMADAR, J
DATE : JULY 25, 2022
P.C.:
1. Heard.
2. This is an application taken out by the defendants to
dismiss the suit for non-compliance with mandatory
pre-institution mediation envisaged under Section 12A of the
Commercial Courts Act, 2015.
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40-IA-1275-21.doc
3. This suit is instituted for recovery of a sum of
Rs.18,62,65,529/- along with future interest being the amount
advanced by the plaintiff to the defendant No. 1.
4. This application is taken out by the defendant with the
assertion that the suit being a commercial suit under the
provisions of the Commercial Courts Act, 2015, it could not have
been instituted without resorting to pre-institution mediation
mandated by Section 12 -A of the Commercial Courts Act, 2015.
5. An affidavit-in-reply is filed on behalf of the plaintiff. It is,
inter alia, asserted that in accordance with the order dated 1 st
October, 2021, passed by the Division Bench in the case of
Deepak Raheja Vs. Ganga Taro Vazirani (Commercial Appeal (L)
No.11950 of 2021) (Coram: Nitin Jamdar and C. V. Bhadang, JJ.),
the suit be kept pending till the completion of the mediation
process already initiated by the plaintiff before the main
Mediation Center, Bombay High Court, on 23rd February, 2022.
6. The learned Counsel for the plaintiff invites the attention of
the Court to an order passed by this Court on 8 th April, 2022 in
Executive Trading Company Pvt Ltd Vs. Grow Well Mercantile
Private Limited, (Interim Application (L) No.7771 of 2022 in
Commercial Summary Suit No.19 of 2020).
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40-IA-1275-21.doc
7. The learned Counsel for the defendants submits that the
defendants are not averse to the said course being adopted.
However, the defendants should not suffer prejudice in the event
the suit is required to be heard on merits upon failure of
mediation, in the sense that, the time for filing an affidavit-in-
reply to seek leave to defend should not run against the
defendants. The aforesaid submission seems reasonable.
8. In the case of Executive Trading Company Pvt Ltd. (supra)
this Court has, inter alia, observed as under:
The course adopted by the Division Bench appears to be
more pragmatic de hors the objection thereto on behalf of
one of the contesting parties. What is of substance is
exploring the possibility of mediated settlement in
accordance with the mandate contained in section 12A of
the Commercial Courts Act, before the parties approach
the Court. In the case at hand, suit has been instituted
without pre-institution mediation. At the stage of hearing
of Summons for Judgment, the question of tenability of
suit cropped up for consideration. Thus, at this length of
time, it may not be appropriate to relegate the plaintiff to
the lodging stage. The suit can remain in the state of
suspended animation. In the event, the mediation is
successful, there would be no cause to revive the suit. If
the mediation does not succeed, the Summons for
Judgment can be again taken up for consideration on
merits. There is no element of prejudice to the defendant
in the event the parties are referred to mediation in the
manner devised by the Division Bench, while keeping the
suit in abeyance
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40-IA-1275-21.doc
9. Hence, the following order.
:ORDER:
(i) The Plaintiff and Defendants shall attend the office of the
Member Secretary, Maharashtra State Legal Services
Authority, on 4th August, 2022, for initiating the mediation
process.
(ii) No separate notice to the parties shall be required of the
said mediation.
(iii) The suit shall remain in abeyance for a period of three
months from 4th August, 2022.
(iii) If the learned Mediator is of the opinion that an extension is
required and grants extension, the direction to keep the
suit in abeyance shall stand suitably extended for the
period of such extension granted by the mediator.
(iv) Upon completion of the mediation, the Member Secretary
shall forward the report of the same to the Prothonotary
and Senior Master of this Court with copies to the parties.
(v) On the submission of the report of the Mediator as per
Clause (5), the direction for keeping the Suit in abeyance
shall stand lifted.
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40-IA-1275-21.doc
(vi) If the outcome of the mediation is positive, then no further
orders from the Court would be required as the scheme of
Section 12A of the Commercial Courts Act, 2015 will
become operational.
(vii) In the event of the mediation being unsuccessful,the parties
are at liberty to make a motion for hearing the Summons
for Judgment.
(viii) By way of abundant caution, it is clarified that the time to
file an affidavit seeking leave to defend the summary suit,
shall commence after the motion for hearing of the
summons for judgment is made by plaintiff in the event of
unsuccessful mediation, of which advance notice should
be given to the defendants.
(ix) Interim Application stands disposed.
(N. J. JAMADAR, J.)
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