11. From time to time, the plaintiff requested the
defendant to clear the aforesaid outstanding invoices,
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
13. In another meeting held on 20 th March, 2025 at
the corporate office of the plaintiff at Berger Paints
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
Corporate Office at CF Block, New Town, Action Area-
1, New Town Kolkata-700156, outside the jurisdiction
aforesaid, and by an e-mail dated 24th March, 2025,
the defendant expressed its precarious financial
condition and the closure of the operation of the blade
plant located at Sarurpur Industrial Area, Faridabad,
outside the jurisdiction aforesaid. The defendant
communicated that an application for scheme in
compromise and arrangement under Section 230-232
of the Companies Act, 2013 has been filed before the
Hon'ble National Company Law Tribunal, Kolkata
Bench on 7th March, 2025 and the defendant also
forwarded the proposed scheme prepared by the
defendant. The defendant also supplied a copy of the
scheme of Compromise and Arrangement filed by the
defendant alongwith an application under Section
230 of the Companies Act, 2013. A copy of the e-mail
dated 24th March, 2025 alongwith the Scheme of
Compromise and Arrangement is collectively annexed
hereto and marked with the letter "F" series.
14. The defendant again on 24th March, 2025
informed the representatives of the plaintiff that they
shall be selling their factory land at Plot No. 23, Gali
No. 3(West), Sarurpur Industrial Area, Faridabad -
121004, outside the jurisdiction aforesaid."
5. Upon presentation of the plaint, the Co-ordinate bench by its
order dated April 16, 2025, inter-alia, allowed dispensation of
requirement for pre-litigation/ mediation under Section 12A of
the CC Act and the plaint was admitted.
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
SUBMISSIONS:
6. Mr. Kanishk Kejriwal, learned Counsel led by Mr. Suddhasatva
Banerjee, learned Counsel appearing for the defendant
referring to the averments made in the plaint submits that the
plaintiff has pleaded a case that goods were sold and delivered
by the plaintiff to the defendant and despite raising invoices
and demands the defendant has failed and neglected to pay the
price of the goods. The defendant made part payments and last
of such part payment was made in the Month of June, 2024.
During February, 2024 to June, 2024 the plaintiff supplied
goods aggregating for a total sum of Rs. 1,01,60,721/- and the
said entire sum is now due and payable, according to plaintiff.
7. The plaintiff then pleaded that in a meeting held on February
4, 2025 the defendant has expressed its desire and
requirement of fund as the defendant was passing through
severe financial crisis and to meet such crisis the defendant
was trying to sell its plant situated at industrial area,
Faridabad (Faridabad property). The defendant has also
informed the plaintiff that it has proposed to submit scheme of
compromise with the creditors under the Companies Act, 2013,
which would be filed before the jurisdictional of NCLT for
settlement of the dues of the creditors.
8. Learned Counsel for the defendant then submits that, the
plaintiff has pleaded that by an e-mail dated March 24, 2025
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
the defendant further expressed its precarious financial
condition and closure of its part of business. The scheme of
arrangement has already been presented before the
jurisdictional NCLT on March 7, 2025 and the defendant also
forwarded the proposed scheme prepared by the defendant to
the plaintiff.
9. In the light of the above, the defendant submits that the cause
of action of the plaintiff, as alleged, arose way back in June,
2024. The moment the alleged default occurred on the part of
the defendant. The defendant had expressed its financial
inability contemporaneously to the plaintiff which was in or
about June, 2024 or so soon thereafter. The contemplation by
the defendant to sell its Faridabad plant was also known to the
plaintiff contemporaneously. Thus, according to Mr. Kejriwal,
Learned Counsel appearing for the defendant, there was no
sudden and immediate urgency for an urgent interim relief, as
all such facts were known to the plaintiff much prior in point of
time.
10. Learned Counsel, Mr. Kejriwal then refers to the paragraphs of
the plaint where the cause of action has been pleaded and
submits that since the cause of action has arisen much prior
in point of time, the question for dispensation of the
requirement under Section 12A of CC Act did not arise and
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
as such, the said requirement should not have been dispensed
with.
11. Learned Counsel for the defendant then placed Section 12A
of the CC Act and submits that the object of the said Section
clearly denotes the mandatory condition precedent to avail of
pre-suit mediation before institution of a suit, as in the
instant case.
12. By not availing of the said pre-suit mediation, the plaintiff has
acted contrary to the provisions laid down under Section 12A
of the CC Act and thereby bypassed the mandatory statutory
provision, which is not permitted in law. In support, Learned
Counsel has placed reliance upon a decision of the Hon'ble
Supreme Court In the matter of: Yamini Manohar vs.
T.K.D. Keerthi reported at (2024) 5 Supreme Court Cases
815.
13. Learned Counsel for the defendant then submits that on a
plain reading of the plaint, it appears there was no urgency
involved praying for an urgent interim order.
14. Accordingly, the defendant prays for revocation of the leave
granted by the Court dispensing with the requirement of
Section 12A of the CC Act.
15. Mr. Anirban Ray, Learned Senior Advocate appearing for the
plaintiff at the threshold refers to the provisions laid down
under Section 12A of the CC Act and submits that the
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
language of the Section is very clear that a suit, which does
not contemplate any urgent interim relief, under the Act shall
not be instituted unless the plaintiff exhausts the remedy of
pre-litigation mediation. Therefore, if the plaintiff
contemplates an urgent interim relief the mandate under
Section 12A can be dispensed with by the Court, upon being
its satisfaction recorded.
16. Mr. Anirban Ray, learned Senior Advocate further submits
that from a reading of the said provision, it appears that the
fate of the prayer for urgent interim relief shall not be a
material consideration or even the reliefs in the suit would
have no bearing and the Court shall only consider whether the
contemplation of the plaintiff for urgent interim relief is
pleaded in the plaint or not.
17. Learned Senior Counsel Mr. Ray then refer to the averments
from the plaint and submits that the meeting and the e-mail
dated February 12, 2025 and March, 24, 2025 pleaded in
the plaint would show sufficient contemplation on the part of
the plaintiff for seeking an urgent interim relief for which the
dispensation of requirement under Section 12A of CC Act was
necessary. The point of time when the cause of action arose is
not material.
18. Mr. Ray then takes support from the decision of the Hon'ble
Supreme Court In the matter of: Yamini Manohar (Supra)
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
and submits the question whether a suit involves any urgent
interim relief is to be determined solely on the basis of the
pleadings and the reliefs sought by the plaintiff. If plaintiff
seeks any urgent interim relief, the suit cannot be dismissed
on the ground that the plaintiff has not exhausted the remedy
for pre-litigation mediation, as contemplated under Section
12A of CC Act. The cause of action in the plaint for final relief
does not matter. In support, learned Senior Counsel has
placed reliance upon a decision of the Hon'ble Division Bench
of this Court In the matter of: Shristi Infrastructure
Development Corporation Limited Vs. Sarga Hotel Private
Limited and Another, dated August 23, 2024 rendered in
FMAT 222 of 2024.
19. In the light of the above, Mr. Ray, learned Senior Counsel
submits that this application is devoid of any merit and
should be dismissed.
DECISION:-
20. After considering the rival contentions of the parties and
upon perusal of the materials on record, this Court first
proceed to read the averments made in the plaint, on the basis
whereof the plaintiff claims dispensation of the requirement of
pre-litigation mediation. The averments are already quoted
above. The averments clearly show that admittedly the meeting
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
dated February 12, 2025 was held and e-mails dated March
24, 2025 was addressed by the defendant to the plaintiff
informing that the Faridabad Plant would be sold and the
defendant has applied before the appropriate authority seeking
permission for the same. The property would be sold to settle
the outstanding claim including that of the plaintiff. The
scheme for compromise with the creditor submitted by the
defendant would appear from page 159 of the application and
specifically at page 171 it appears that as against the claim of
the plaintiff to the tune of Rs.99,08,520/- the proposed settled
amount was Rs.19,81,704/-. The plaintiff did not accept the
said settled quantum. In any event, it is not the case of the
defendant that nothing is due and payable to the plaintiff. The
averments in the plaint at the highest shows, prima facie, the
negotiation for settlement was going on for quite some time.
Even if, it was within the knowledge of the plaintiff prior in
point of time than March 2024, that the defendant is in the
process of selling its Faridabad Plant, the confirmation
ultimately came by way of writing through the said two
documents dated February 12, 2025 and March 24, 2025 as
pleaded in the plaint.
21. The relevant portion from Section 12A of CC Act is quoted
below:-
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
"12.A. Pre-Litigation 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 pre-litigation
mediation in accordance with such manner and
procedure as may be prescribed by rules made by the
Central Government
...........................................................................
................................................................................"
22. On a meaningful and harmonious reading of the said
provision, this Court is of the view that, if the plaintiff does
not contemplate any urgent interim relief then it is a
mandatory requirement under the statute to avail of the
remedy of pre-litigation mediation. Therefore, if an urgent
interim relief is contemplated by the plaintiff, there is no bar
under the Section upon the plaintiff to file the necessary civil
action without exhausting the remedy of pre-litigation
mediation. To ascertain whether an urgent interim relief has
been contemplated by the plaintiff, the averments in the plaint
to be taken as true and correct and to be read as sacrosanct.
23. The averment in the instant plaint shows specifically that by
way of said two documents, as referred to above of February
and March 2025, since the defendant has contemplated to
sale its property and informed the plaintiff in writing, the
same has given rise to the contemplation of the plaintiff for an
urgent interim relief and hence, the plaintiff prayed for
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
dispensation of the requirement for pre-litigation mediation as
provided under Section 12A of the CC Act.
24. The Hon'ble Supreme Court In the matter of: Yamini
Manohar (Supra) had observed as under:-
"6. The words used in Section 12-A of the CC Act
are - " A suit which does not contemplate any
urgent interim relief, wherein the word
"contemplate" connotes to deliberate and consider.
Further, the legal position that the plaint can be
rejected and not entertained reflects application of
mind by the Court Viz. the requirement of "Urgent
interim relief".
7. In the present case, it is an accepted fact that an
urgent interim relief has been prayed for and the
condition that the plaint "Contemplates" an urgent
interim relief is satisfied. Therefore, the impugned
judgment/ order of the Delhi High Court dated 8-5-
2023, which upholds the order of the District Judge
(Commercial Court)-01, South District at Saket, New
Delhi dated 6-2-2023, rejecting the application
under Order 7 Rule 11 of the Code, is correct and in
accordance with law.
34. The use of the words "Contemplate any urgent
interim relief" as used in Section 12(1) of the
Commercial Courts Act, 2015 are used to qualify
the category of a suit. This is determined solely on
the frame of the plaint and the relief sought. The
plaintiff is the sole determinant of the pleadings in
the suit and the relief sought.
35. This Court is of the view that the question
whether a suit involves any urgent interim relief is
to be determined solely on the basis of the
pleadings and the relief(s) sought by the plaintiff. If
a plaintiff seeks any urgent interim relief, the suit
cannot be dismissed on the ground that the plaintiff
has not exhausted the pre-institution remedy of
mediation as contemplated under Section 12-A(1) of
the Commercial Courts Act, 2015."
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
25. The Hon'ble Division Bench In the matter of: Shristi
Infrastructure Development Corporation Limited Vs. Sarga
Hotel Private Limited & Anr.(Supra) had observed, inter alia,
as under:-
"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.
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.
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.
In this case, although the claim in 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
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
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.
For all those reasons the impugned judgment and order
cannot stand. I hold that the impugned order is
appealable. I further hold that the learned judge by the
impugned order ought not to have refused the section
12A dispensation sought. We grant such dispensation
and direct the learned Court below to hear out the suit
as expeditiously as possible."
26. The expression 'contemplate any urgent interim relief'
used under Section 12(1) of the CC Act shall qualify the
plaintiff, if pleaded in the plaint, to pray for dispensation of
the requirement for pre-litigation mediation under Section 12A
of the Act.
27. Furthermore, the subsequent order dated May 6, 2025 shows
that after dispensation of the process for pre-litigation
mediation, though an interim order of injunction was passed
against the defendant dated April 16, 2025, learned Counsel
for the defendant submitted that the defendant had already
executed a registered deed on March 26, 2025 in respect of
the subject immovable property.
28. It matters little, whether ultimately the plaintiff would succeed
on its prayer for interim relief or with its suit on merit, what
matters is that the averments in the plaint should show a
contemplation by the plaintiff for an urgent interim relief,
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
which in the considered and firm view of this Court is there in
the plaint as it appears prima facie.
29. In view of the forgoing reasons and discussions, this Court is
of the firm view that, there is no reason to recall the order
dated April 16, 2025 under which the Coordinate Bench has
dispensed with the requirement for pre-litigation mediation in
terms of Section 12A of the Act.
30. The instant application IA No. GA-COM/3/2025 is devoid of
any merit and stands dismissed, without any order as to
costs.
(ANIRUDDHA ROY, J.)
DB/mg
IA NO. GA-COM/3/2025
In CS-COM/48/2025
A.R., J.
