Bombay High Court
National Thermal Power Corporation ... vs Tech Data Advanced Solutions (India) ... on 10 September, 2025
2025:BHC-OS:14897
7.COMS-153.22.DOCX
ppn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by PRACHI
ORDINARY ORIGINAL CIVIL JURISDICTION
PRACHI PRANESH
PRANESH
NANDIWADEKAR
NANDIWADEKAR IN ITS COMMERCIAL DIVISION
Date: 2025.09.11
14:22:41 +0530
INTERIM APPLICATION (L) NO.33574 OF 2022
IN
COMMERCIAL SUIT NO.153 OF 2022
National Thermal Power Corporation Ltd. ... Applicant
In the matter between
Tech Data Advanced Solutions (India)
Pvt. Ltd. ... Plaintiff
Versus
National Thermal Power Corporation
Ltd. & Anr. ... Defendants
WITH
INTERIM APPLICATION (L) NO.33573 OF 2022
IN
COMMERCIAL SUIT NO.153 OF 2022
National Thermal Power Corporation Ltd. ... Applicant
In the matter between
Tech Data Advanced Solutions (India)
Pvt. Ltd. ... Plaintiff
Versus
National Thermal Power Corporation
Ltd. & Anr. ... Defendants
WITH
INTERIM APPLICATION (L) NO.33568 OF 2022
IN
COMMERCIAL SUIT NO.153 OF 2022
National Thermal Power Corporation Ltd. ... Applicant
In the matter between
Tech Data Advanced Solutions (India)
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7.COMS-153.22.DOCX
Pvt. Ltd. ... Plaintiff
Versus
National Thermal Power Corporation
Ltd. & Anr. ... Defendants
WITH
COMMERCIAL SUIT NO.153 OF 2022
Tech Data Advanced Solutions (India)
Pvt. Ltd. (formerly known as Avnet
Technology Solutions (India) Private
Limited, a Company incorporated and
registered under the provisions of the
Companies Act, 1956 and having its
registered office at A 301, 3rd Supreme
Business Park, Behind Lake Castle,
Hiranandani Business Park,
Mumbai - 400 076. ... Plaintiff
Versus
1. National Thermal Power Corporation
Ltd.,
a Company incorporated and registered
under the provisions of the Companies
Act, 1956 and having its registered
office at NTPC Bhawan, Scope
Complex, 7, Institutional Area, Lodhi
Road, New Delhi - 110 003.
2. Rolta India Limited
a Company incorporated and registered
under the provisions of the Companies
Act, 1956 and having its registered
office at Rolta Tower A, Rolta
Technology Park, MIDC, Andheri
(East),
Mumbai - 400 093. ... Defendants
______________________________________________________
Mr Nimay Dave a/w Ms. Shivanee Shrivastava and Ms. Ashita
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7.COMS-153.22.DOCX
Chhibber i/b TRD Associates for the Applicant/
Defendant No.1.
Mr. Yash Pitroda a/w Mr. Rushil Mathur i/b Mr. Mayur Shetty
c/o Kochhar & Co. for the Plaintiff.
______________________________________________________
CORAM : Jitendra Jain, J.
DATED : 10 September 2025
Judgment :-
1. This Interim Application has been taken out by
defendant number 1 under Order VII Rule 11 of the Civil
Procedure Code, 1908 (CPC) for dismissal of the suit filed by
the plaintiff.
Submissions of the Applicant/Defendant No.1 in Interim
Application (L) NO. 33574 OF 2022 :-
2. Mr. Dave, learned counsel for the applicant/defendant
no.1 states that in this case, there is no compliance of
mandatory provision of Section 12-A of the Commercial
Courts Act, 2015 which provides for pre-litigation mediation
prior to the filing the present suit and therefore, under Order
VII Rule 11(d) of CPC, the suit is barred.
3. Mr. Dave further submits that no case is made out for
urgent interim relief and therefore, the exception carved out
by Section 12-A of the Commercial Courts Act is also not
applicable. He relied upon the decision in the case of Yamini
Manohar v. T.K.D. Keerthi1. He further submitted that the suit
2023 SCC OnLine SC 1382
7.COMS-153.22.DOCX
was filed on 10 December 2021 and the Division Bench of
this Court on 10 October 2021 in the case of Deepak Raheja v.
Ganga Taro Vazirani2 in para 37 held Section 12-A to be
mandatory. He therefore, submitted that since on the date
when the suit was filed, the jurisdictional High Court had
already upheld the mandatory nature of Section 12-A, the
ratio of the Supreme Court in the case of Patil Automation
Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd. 3 in para 113.3 also
covers the facts of the present case and therefore, application
under Order VII Rule 11 of CPC should be allowed and the
suit be dismissed.
Submissions of the Respondent/Plaintiff in Interim
Application (L) NO. 33574 OF 2022 :-
4. Mr. Pitroda, learned counsel for the respondent/plaintiff
submits that as per the email which is at page 91 of the
plaint, defendant no.1-NTPC agreed for making payment on
behalf of Rolta India Ltd. (defendant no.2) to the plaintiff.
5. Mr. Pitroda further submitted that the decision in the
case of Deepak Raheja (supra) does not say that from that
particular day, non-compliance of Section 12-A would result
into dismissal of the suit. He therefore, vehemently objected
to the present application and prayed for dismissal.
6. Learned counsel for the plaintiff/respondent has relied
upon the following orders of this Court in support of his
above submissions :-
2021 SCC OnLine Bom 3124
(2022) 10 SCC 1
7.COMS-153.22.DOCX
(i) Aelea Commodities Pvt. Ltd. v. Shree Satpuda Tapi
Parisar Sahakari Sakhar Karkhana Limited4
(ii) Grow Well Mercantile Private Limited v. Executive
Trading Company Limited5.
(iii) Manoj Damani v. Alag Property Construction Pvt. Ltd.6
(iv) M/s. Housing Development Finance Corporation
Limited v. Deelight Fortune Private Limited & Anr7
(v) Bulk MRO Industrial Supply Pvt. Ltd. v. M/s. JS
Equipments8
and the decision of the Supreme Court in the case of Dhanbad
Fuels Private Limited Vs. Union of India9.
7. I have heard learned counsel for the applicant/
defendant no.1 and the learned counsel for the petitioner.
Analysis and Conclusions :-
8. There is no dispute, in the present case, that pre-
litigation mediation compliance has not been made by the
plaintiff prior to filing of the suit. There is also no dispute that
the plaint was filed on 10 December 2021 and the
jurisdictional High Court in the case of Deepak Raheja
Summons of Judgment No.26 of 2021 in Commercial Summary Suit No.48 of
2021 decided on 22 October 2021.
Interim Application (L) No.7771 of 2022 in Commercial Summary Suit No. 19
of 2020
Summons of Judgment No.4 of 2022 in Commercial Summary Suit No.26 of
2021 decided on 20 July 2022.
Interim Application (L) No.1275 of 2021 in Commercial Summary Suit No.19
of 2021 decided on 25 July 2022.
Summons of Judgment No.2 of 2022 in Commercial Summary Suit No.61 of
2021 decided on 10 August 2022.
2025 SCC OnLine SC 1129.
7.COMS-153.22.DOCX
(supra) on 1 October, 2021 in para 37 held Section 12-A of
the Commercial Courts Act as mandatory. Para 113 of Patil
Automation (supra) states that Section 12-A is mandatory
and it further observes that violation of Section 12-A would
result into rejection of the plaint under Order VII Rule 11 of
CPC. The Hon'ble Supreme Court further in para 113.3
observed that if the plaint filed violates Section 12-A after the
jurisdictional High Court has declared Section 12-A to be
mandatory, then in that case the plaintiff will not be entitled
to the relief. This observation was made since in para 113.1,
the Supreme Court held that the declaration of mandatory
provision is effective from 20 August 2022.
9. In the present case as observed by me above, prior to
filing the suit, the jurisdictional High Court had already held
Section 12-A of the Commercial Courts Act as mandatory and
therefore, it was incumbent upon the plaintiff to comply with
the provisions of Section 12-A. Therefore, in my view, the
distinction sought to be made by the Learned counsel for the
plaintiff is not correct and on a conjoint reading of the
decision of the Supreme Court in the case of Patil Automation
(supra) and the jurisdictional High Court in the case of
Deepak Reheja (supra), the plaintiff ought to have complied
with the provisions of Section 12-A before filing the suit.
10. Mr. Dave is justified in relying upon the decision in the
case of Yamini Manohar (supra) in support of his submission
that if there is a violation of Section 12-A, then the suit has to
be dismissed under Order VII Rule 11 of CPC.
7.COMS-153.22.DOCX
11. The only exception made out in Section 12-A is, if any
urgent relief is sought on the basis of the averments made in
the plaint. In this case, the suit was filed in the year 2021 and
there are no reliefs granted till today, that is upto 2025.
Furthermore, on a perusal of the plaint also, no case is made
out by the plaintiff to fall within the exception as per Section
12-A(1) of the Commercial Courts Act for dismissal under
Order VII Rule 11 of CPC. It is also important to note that
although the contract of the plaintiff was with defendant
no.2, there is no material to show that there was a privity of
contract between the plaintiff and defendant no.1 for
recovery of the amount except the email which is referred to
above.
12. The exception carved out in Section 12-A(1) for non-
compliance of pre-litigation mediation and settlement is a
case where any urgent relief is contemplated. The objective of
this exception is that the interim relief required are of such a
nature that it cannot wait for the period which would be
consumed for initiating and concluding mediation. It is in
these circumstances that Section 12-A(1) makes an exception
for instituting a suit without undergoing pre-litigation
mediation and settlement. In the instant case before me, the
plaintiff has not made out any case in support of its
submission to fall within the exception carved out in Section
12-A(1) of the Commercial Courts Act, 2015.
13. The email at page 91 of the plaint only states that
defendant no.1 will make payment on behalf of defendant
7.COMS-153.22.DOCX
no.2 to the plaintiff. In my view, that does not constitute a
privity of contract between the plaintiff and defendant no.1.
It is also important to note that although defendant no.2 has
been made a party in the cause title of the plaint, no relief is
sought against defendant no.2 in the prayer clause. This
clearly shows that since the plaintiff is not in a position to
recover any amount from defendant no.2, an attempt is made
to recover the same from defendant no.1.
14. Insofar as the decisions relied upon by the learned
counsel for the plaintiff/respondent in the cases of Aelea
Commodities Pvt. Ltd. (supra), Grow Well Mercantile Private
Limited (supra), Manoj Damani (supra), M/s. Housing
Development Finance Corporation Limited (supra), Bulk
MRO Industrial Supply Pvt. Ltd. (supra) are concerned, all
these orders have been passed prior to 17 August 2022 and
the decision of Patil Automation (supra) was rendered by the
Hon'ble Supreme Court on 17 August 2022 wherein in
paragraph 113.3, the Supreme Court categorically stated that
if the plaint is filed violating Section 12-A after the
jurisdictional High Court has declared Section 12-A
mandatory, the plaintiff will not be entitled to the relief.
Therefore, in the light of the subsequent decision of the
Supreme Court in the case of Patil Automation (supra) the
learned counsel for the plaintiff/respondent is not justified in
relying upon the decisions of this Court which were rendered
prior to 17 August 2022.
7.COMS-153.22.DOCX
15. Insofar as the decision of the Hon'ble Supreme Court in
the case of Dhanbad Fuels (supra) is concerned, the Hon'ble
Supreme Court in paragraph 62(i) has held that suits
instituted without complying with Section 12-A of the
Commercial Courts Act, 2015 prior to 20 August 2022 cannot
be rejected under Order VII Rule 11 of CPC on the ground of
non-compliance unless they fall within exception stipulated in
paragraph 113.1 and 113.3 of the decision in case of Patil
Automation (supra). In my view and as observed above, the
present case falls within the exception stipulated in paragraph
113.3 of the decision in the case of Patil Automation (supra)
since in the instant case, before me, prior to filing of the suit,
the jurisdictional High Court in the case of Deepak Raheja
(supra) had already held that provisions of Section 12-A were
mandatory. Therefore, paragraph 62(i) of the Dhanbad Fuels
(supra) case supports the submissions made by the
applicant/defendant no.1 and, therefore following the said
decision, the applicant/ defendant no.1 is justified in praying
for rejection of the suit under Order VII Rule 11 of CPC.
16. In view of above, the interim application is allowed by
rejecting the plaint filed as Suit No.153 of 2021 under Order
VII Rule 11 of the Code of Civil Procedure, 1908.
17. Consequently, the Commercial Suit No.153 of 2022 is
disposed of.
7.COMS-153.22.DOCX
18. In the light of the above, the Interim Application (L)
Nos. 33573 of 2022 and 33568 of 2022 do not survive and
are disposed of accordingly.
19. The Interim Application (L) Nos.33573 of 2022, 33574
of 2022 and 33568 of 2022 are filed by defendant no.1 in the
year 2022 and they are still on lodging numbers till today i.e.,
till 2025. There is no reason why for 3 years, the objections
could not have been removed and the Interim Applications
could not have been finally numbered.
20. Therefore, cost of Rs. 75,000/- (Rs.25,000/- for each
Interim Application) is imposed. The said cost to be paid to
Cama and Albless Hospital, BMC Office, Mahapalika Marg,
Dhobi Talao, Fort, Mumbai-400001 within a period of four
weeks from today.
21. Liberty to the plaintiff to seek refund of Court fees in
accordance with Rules and if permissible in law.
(Jitendra Jain, J)
