Zulekha Healthcare Holding ... vs Dr. Zeeshan Ahmed
2023 Latest Caselaw 6556 MP

                                  1                   F.A. No.167/2023



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                       BEFORE
    HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 24th OF APRIL, 2023
              FIRST APPEAL No. 167 of 2023
BETWEEN:-

ZULEKHA     HEALTHCARE   HOLDING
LIMITED THROUGH ITS CONSTITUTED
ATTORNEY MR. SATISH THARWANI AGED
ABOUT 34 YEARS S/O SHRI MAHESH
KUMAR CRAIGMUR CHAMBERS, P.O. BOX
71, ROAD TOWN, TORTOLA, BRITISH
VIRGIN ISLANDS (ORISSA)



                                                       .....APPELLANT
(BY SHRI KISHORE SHRIVASTAVA - SENIOR ADVOCATE WITH SHRI
SAHTABH SINGH- ADVOCATE AND MS. ADITI SHRIVASTAVA- ADVOCATE )

AND

DR. ZEESHAN AHMED SOLE PROPRIETOR
M/S ALEXIS HOSPITAL BHOPAL PLOT NO.
18, MUNAL GATE NO. 1, CHANAKYAPURI
J.K. ROAD BHOPAL ALSO AT 113-A, JK
ROAD NEERJA NAGAR DURGESH VIHAR,
AYODHYA NAGAR BHOPAL (MADHYA
PRADESH)



                                                    .....RESPONDENTS
(BY SHRI UTKARSH AGRAWAL - ADVOCATE )
.........................................................................................................

      This appeal coming on for admission this day, the court passed the

following:

                                  ORDER

This First Appeal under Section 96 of CPC has been filed against

the order dated 21.12.2022 passed by 8th District Judge, Bhopal in Commercial Suit No.3/2022 under Order 7 Rule 11 CPC read with Section 12-A of Commercial Courts Act, 2015 by which plaint has been returned with a direction to avail the remedy available under Section 12- A of Commercial Courts Act.

2. Multiple submissions were advanced by the counsel for the parties but this Court does not find it appropriate to reproduce and consider the same for the following reasons:

i. The suit was instituted by the plaintiff/appellant on 25.02.2022 against the infringement of the trade mark. ii. An application under Order 39 Rule 1 and 2 CPC was filed.

Although, Rule 3 was not mentioned in the cause title but in the prayer clause, ex-parte temporary injunction was sought. iii. The notices of the application as well as the plaint were issued. iv. The respondent filed its written statement. v. An application under Order 7 Rule 11 CPC was also filed by pleading interalia that since the appellant has not availed the remedy as provided under Section 12-A of Commercial Courts Act, therefore, the suit cannot be instituted.

vi. The application was duly replied.

vii. The plaint was returned on the ground that it has been instituted without complying the provisions of Section 12-A of Commercial Courts Act.

viii. Apart from various other grounds, it was submitted by Shri Kishore Shrivastava, learned senior counsel for the appellant that the trial Court has relied upon the judgment passed by the Supreme Court in the case of Patil Automation Private Limited

And others Vs. Rakheja Engineers Private Limited reported in 2022 SCC online SC 1028 and held that since the provisions of Section 12-A of Commercial Courts Act are mandatory in nature and as the plaintiff has instituted the suit without complying the same, therefore, the plaint was returned. However, the trial Court ignored a very important aspect of the matter. In paragraph 92 itself, it has been held by the Supreme Court that the declaration shall be effective from 20.08.2022 so that concerned stakeholders become sufficiently informed, whereas this suit was instituted on 25.02.20233, therefore, the judgment passed by the Supreme Court in the case of Patil Automation Private Limited (supra) would not apply.

3. Per contra, it is submitted by the counsel for the respondent that the submission made by the counsel for the appellant is misconceived. The purpose for making the judgment prospective means the Supreme Court had made the amendment prospective and therefore, the cases which were filed before the incorporation of amendment cannot be reopened but observation made by Supreme Court will not effect the suits which were filed prior to judgment in Patil Automation Private Limited (supra).

4. Heard the learned counsel for the parties.

5. Undisputedly, Section 12-A of the Commercial Courts Act is a procedural law and it well established principle of law that every amendment of procedural law is retrospective in operation unless and until it is specifically made prospective.

6. The Supreme Court in the case of Patil Automation Private Limited (supra) has considered this aspect, which starts from paragraph

85 of the said judgment.

7. Thus, the Supreme Court after considering all the aspects of the matter has held that the declaration i.e. Section 12-A of the Commercial Courts Act is mandatory and non-violation of the same must be visited with rejection of the plaint under Order 7 Rule 11 CPC is prospective in nature. This important aspect of the matter has not been dealt with by the trial Court.

8. It is well established principle of law that the judgment pronounced by the Court will have a retrospective operation unless and until it is made prospective. By making it prospective, the Supreme Court has made the declaration of Section 12-A of Commercial Courts Act as mandatory applicable from 20.08.2022. Since the suit in question was filed on 25.02.2022, therefore, the declaration made by the Supreme Court that Section 12-A of Commercial Courts Act is mandatory in nature, cannot be applied. Under these circumstances, this Court is of the considered opinion that the trial Court committed a material illegality by returning the plaint to the plaintiff.

9. Accordingly, the appeal is allowed.

10. The impugned order dated 21.12.2022 passed by 8th District Judge, Bhopal in Commercial Suit No.3/2022 is hereby set aside.

11. The matter is remanded back to the trial Court to proceed further and the suit is restored to its original file.

12. The parties are directed to appear before the trial Court on 01.05.2023.

13. No order as to cost.

(G.S. AHLUWALIA) JUDGE Shanu Digitally signed by SHANU RAIKWAR Date: 2023.04.25 13:40:28 +05'30'