[Cites 12, Cited by 0]
Calcutta High Court
Somabrata Mandal vs Arun Kumar Mandal And Ors on 23 December, 2025
Author: Ravi Krishan Kapur
Bench: Ravi Krishan Kapur
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IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
BEFORE:
The Hon'ble JUSTICE RAVI KRISHAN KAPUR
IA NO. GA/3/2023
[OLD NO. CS/86/2023]
In IP-COM/31/2025
SOMABRATA MANDAL
Vs
ARUN KUMAR MANDAL AND ORS
For the applicants/
defendant nos. 3 : Mr. Soumya Ray Chowdhury, Advocate
Mr. D. Sen, Advocate
Mr. Susrea Mitra, Advocate
For the plaintiff : Mr. Krishnaraj Thaker, Senior Advocate
Mr. Indranil Munshi, Advocate
Ms. Anushka Sarkhel, Advocate
Ms. Ahona Guha Majumder, Advocate
Heard on : 18 December 2025
Judgment on : 23 December 2025
Ravi Krishan Kapur, J.:
1. This is an application under Order VII Rule 11 read with section 151 of the
Code of Civil Procedure, 1908 seeking dismissal of the suit.
2. The plaint was admitted subject to the scrutiny by the Department and
leave granted under Clause 12 of the Letters Patent, 1865, Order II Rule 2
of the Code of Civil Procedure, 1908 and the requirement of Pre-Institution
Mediation and Settlement under section 12A of the Commercial Courts Act,
2015 dispensed with. Significantly, this is the second suit which has been
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filed by the plaintiff. A prior suit being CS/64/2023 which had been filed
was withdrawn with liberty to file afresh.
3. It is contended on behalf of the applicant that there has been no
compliance with the mandatory requirement under section 12A of the Act.
The plaintiff had sought for dispensation of Pre-Institution Mediation under
section 12A of the Act without any pleadings as to the contemplation of
urgent interim reliefs. The suit has also been filed in abuse of process. On
a comparison of the prior suit with the reliefs claimed in the instant suit it
would be evident that the scope of this suit has been intentionally and
mischievously enlarged violating the liberty which had been granted to the
plaintiff after having obtained the benefit of Court fees. There are also no
pleadings as to how this Court has pecuniary jurisdiction to entertain this
suit. The suit has been filed in gross abuse of process of law. The plaintiff
has filed multiple proceedings before different fora in respect of the same
cause of action and is attempting to forum shop for the self-same reliefs.
The suit is also barred under the provisions of Order 2 Rule 2 of the Code
of Civil Procedure, 1908. There are no pleadings nor any prayer justifying
leave under clause 12 of the Letters Patent, 1865. In support of such
contentions, the defendants rely on the decisions in Pankaj Plastic
Industries Private Limited vs. Anita Anu (2025) SCC OnLine Cal 8047;
Dhanbad Fuels Private Limited vs. Union of India And Another (2025) 9 SCC
424; and Vallabh Das vs. Dr. Madan Lal And Others 1970(1) SCC 761.
4. On behalf of the plaintiff, it is submitted that the instant application is
misconceived and is liable to be dismissed. Insofar as the question of leave
under Clause 12 of the Letters Patent, 1865 is concerned, the same was
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unnecessary since the defendant nos. 1 to 5 are all within the jurisdiction
of this Court. Hence, such leave was obtained only by way of abundant
caution and the same be revoked. There is no merit in the contention that
the suit has been filed in abuse of process. This is a comprehensive suit in
which reliefs have been sought both in respect of infringement and passing
off. In any event, this is not a ground for dismissal under Order VII Rule 11
of the Code of Civil Procedure, 1908. Similarly, Order VII Rule 11 of the
Code of Civil Procedure, 1908 does not contemplate dismissal of the suit on
the ground that the specified value to attract the jurisdiction of the
Commercial Division of this Court has not been pleaded. There is no case
of under-valuation or over-valuation. Insofar as the grounds seeking
dispensation under section 12A of the Act is concerned, it is now well
settled that it is only on a holistic reading of the plaint alongwith all
supporting documents that the Court assesses the requirement of urgency
or not. An application for interlocutory reliefs had been filed but the same
could not be heard on the ground of pendency of an amendment
application. In support of such contentions, the plaintiff relies on the
decision in Gavrill Metal Private Limited vs. Maira Fabricators Private
Limited 2023 SCC OnLine Cal 2443 and Novenco Building and Industry vs.
Xero Energy Engineering Solutions Private Limited & Anr. 2025 SCC OnLine
SC 2278.
5. It is no longer res integra that the requirement of Pre-Institution Mediation
is mandatory save and except in cases where the suit contemplates urgent
reliefs. In this context, section 12A of the Act reads as follows:
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"12A. Pre-Institution Mediation and Settlement.--- (1) A suit, which does
not contemplate any urgent interim relief under this Act, shall not
be instituted unless the plaintiff exhausts the remedy of preinstitution
mediation in accordance with such manner and procedure as may be
prescribed by rules made by the Central Government. (emphasis added)
(2) The Central Government may, by notification, authorise the
Authorities constituted under the Legal Services Authorities Act, 1987 (39
of 1987), for the purposes of pre-institution mediation.
(3) Notwithstanding anything contained in the Legal Services
Authorities Act, 1987 (39 of 1987), the Authority authorised by the Central
Government under sub-section (2) shall complete the process of mediation
within a period of three months from the date of application made by the
plaintiff under sub-section (1):
Provided that the period of mediation may be extended for a further
period of two months with the consent of the parties:
Provided further that, the period during which the parties remained
occupied with the pre-institution mediation, such period shall not be
computed for the purpose of limitation under the Limitation Act, 1963 (36 of
1963).
(4) If the parties to the commercial dispute arrive at a settlement, the
same shall be reduced into writing and shall be signed by the parties to
the dispute and the mediator.
(5) The settlement arrived at under this section shall have the same
status and effect as if it is an arbitral award on agreed terms under sub-
section (4) of section 30 of the Arbitration and Conciliation Act, 1996 (26 of
1996).]"
6. The suit is for infringement and passing off. There are rival proceedings
which are pending between the parties before different Courts. A connected
suit filed by and between the parties being IP-COM 6 of 2025 is also
pending before this Court.
7. On a reading of the plaint, it appears that the plaintiff has pleaded that
Mediation was not necessary since the same had taken place before the
Hon'ble Justice Kurian Joseph (Retired) Judge of the Hon'ble Supreme
Court, Mr. S.N. Mookherjee, Senior Advocate and also through family
friends and well-wishers. However, none of these had yielded any positive
result. There are no pleadings formal or otherwise which demonstrates that
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the suit contemplates urgent interim reliefs. The fact that repeated
attempts at Mediation have failed does not necessarily imply that the suit
contemplates urgent interim reliefs and this is the only limited window
available for filing of a suit without exhausting the remedy of Mediation in
accordance with the Act. It is well settled that the requirement of Mediation
under section 12A of the Act is mandatory. This is non-negotiable save and
except cases where the suit contemplates urgent reliefs. The mandate of
the Act must be complied in the manner prescribed under the Act. To this
extent, the plaint must contain necessary pleadings supported by facts.
Even the ritualistic averment that the suit contemplates urgent reliefs is
conspicuously absent in the plaint. This is not a case of the plaintiff's
perspective of urgency being justified or not. There is simply no pleading as
to urgent interim reliefs and this lacunae cannot be filled by the Court by
conducting a hair splitting exercise. In the absence of any pleadings on the
aspect of urgency, there is a palpable omission and glaring error in the
plaint which disqualifies the plaintiff from seeking dispensation under
section 12A of the Act. [Laxmi Polyfab Pvt. Ltd. vs Eden Realty Ventures Pvt.
Ltd. and Another 2021 SCC OnLine Cal 1457, Patil Automation (P) Ltd. v.
Rakheja Engineers (P) Ltd., (2022) 10 SCC 1, Yamini Manohar v. T.K.D.
Keerthi, (2024) 5 SCC 815; Dhanbad Fuels (P) Ltd. v. Union of India, (2025)
9 SCC 424, Novenco Building and Industry vs. Xero Energy Engineering
Solutions Private Limited and Another (2025) SCC OnLine SC 2278 and
Pankaj Plastic Industries Private Limited v. Anita Anu 2025 SCC OnLine Cal
4520].
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8. The question of this Court having admitted the plaint and granted
dispensation under section 12A of the Act is inconsequential and
irrelevant. The law permits such question to be raised. A mistake is liable
to be corrected, no matter by whom it may have been made. There is no
rigid dogma of infallibility which prevents a Court from acknowledging and
correcting its own errors. As Jackson J. had once observed 'I see no reason
why I should be consciously wrong today because I was unconsciously
wrong yesterday'. (Massachusetts vs. United States 333 US 34 at 42).
9. To the above extent, GA 3 of 2023 stands allowed. IP-COM 31 of 2025
stands dismissed. There shall be an order in terms of prayers (b), (d) and (e)
of the Master's Summons. The plaint is rejected. It will be open to the
plaintiff to file a fresh suit on the selfsame cause of action after following
the statutory mandate contained in section 12A of the Commercial Courts
Act, 2015. In view of the above, the remaining grounds urged by the
plaintiff are academic and require no consideration.
(RAVI KRISHAN KAPUR, J.)
S.Bag/S.Pal
