Madras High Court
News Tamil 24 X 7 vs Ananda Vikatan Publishers (P) Ltd on 25 September, 2024
Author: Senthilkumar Ramamoorthy
Bench: Senthilkumar Ramamoorthy
A.No.3847 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.09.2024
CORAM
THE HONOURABLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
A.No.3847 of 2024
in C.S(Comm Div).No.58 of 2024
1.News Tamil 24 x 7,
Owned and controlled
by S.Plus Media Ltd.
Represented by its Director
Mr.Sakilan Padmanabhan,
No.145, Rukmani Lakshmipathi Road,
Pudupet, Chennai – 600 008. … Applicant/1st Defendant
2.S Plus Media Ltd.,
Represented by its Director,
Mr.Sakilan Padmanabhan,
No.145, Rukmani Lakshmipathi Road,
Pudupet, Chennai – 600 008. … Applicant/2nd Defendant
vs.
Ananda Vikatan Publishers (P) Ltd.,
Represented by its Authorised signatory,
Editor/Publisher Mr.Kalaiselvan Theiste,
No.757, Anna Salai,
Chennai – 600 002. … Respondent/Plaintiff
PRAYER : This Application has been filed under Order XIV Rule 8 of OS
rules R/w Order VII Rule 11 of C.P.C & S12-A of the Commercial Courts
Act, 2015, praying to reject the plaint in the above C.S. (Comm. Div.) No.58
of 2024.
Page No.1 of 13
https://www.mhc.tn.gov.in/judis
A.No.3847 of 2024
For Applicants : Richardson Wilson
For Respondent : Mr.Perumbulavil Radhakrishnan
ORDER
By this application, the first defendant seeks rejection of the plaint as
being barred by law under Order VII Rule 11(d) of the Code of Civil
Procedure, 1908 (the CPC) for alleged non-compliance with Section 12A of
the Commercial Courts Act, 2015 (the Commercial Courts Act). Most of the
material facts are not in dispute. The plaintiff asserts in the plaint that it
noticed the use of allegedly infringing promotional material by the defendants
on their channel in September 2023. A cease and desist notice was issued in
the circumstances on 10.10.2023. Such notice was replied to on 19.10.2023.
The plaint was signed thereafter on 22.12.2023 along with an interlocutory
application (O.A.No.200 of 2024). It is stated by the plaintiff that the plaint
and interlocutory application were filed in the registry on 02.01.2024. The
record discloses that such plaint was admitted on 12.03.2024. Later, the
interlocutory application was dismissed by order dated 05.07.2024. Upon
being carried in appeal, the Division Bench set aside the order dated
05.07.2024 and remanded the interim application for de novo consideration
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after first deciding the application for rejection of plaint.
2. Learned counsel for the applicant/first defendant contends that the
plaint is liable to be rejected. The first ground on which such contention is
advanced is that the plaint does not contain any averments that the plaintiff is
seeking urgent interim relief. According to learned counsel, as per the
judgment of the Hon'ble Supreme Court in Yamini Manohar v. T.K.D.Keerthi
(Yamini Manohar), 2023 SCC online SC 1382, in order to justify non-
compliance with mandatory pre-institution mediation, it is necessary that the
plaint should contain averments that the plaintiff seeks urgent interim relief.
By referring to the plaint, learned counsel contends that no explanation is
provided for filing the suit in 2024 after noticing the alleged act of
infringement in September 2023. In support of the contention that the plaint
is liable to be rejected in these circumstances, learned counsel refers to and
relies upon the orders of this Court in T.V.Krishnamoorthy and others v.
Kanakadhara Finance and others, MANU/TN/1331/2024, and Sangeetha
Caterers and Consultants LLP v. Sara Sangeeth Veg Restaurant
MANU/TN/4394/2024. In both these cases, learned counsel submits that the
Court concluded that the suit does not contemplate urgent interim relief
because such suit was filed after a time lag of about three months between the
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date of issuance of the lawyer's notice and the date of presentation of the suit.
3. Learned counsel next contended that even the interlocutory
application does not contain any assertion that urgent interim relief is
requested. He contends that filing of an interim application does not per se
satisfy the requirements of Section 12A. For this proposition, Yamini
Manohar is once again pressed into service. In conclusion, on the merits,
learned counsel points out that the plaintiff's mark is used in relation to the
print medium, whereas the first defendant's mark is used in the television
medium. He also points out that the first defendant's device mark is clearly
distinguishable and that the use thereof is unlikely to result in confusion or
deception.
4. In response to these contentions, learned counsel for the
respondent/plaintiff submits that the plaintiff was constrained to file the suit
because the plaintiff's endeavour to resolve the dispute amicably by issuing
the cease and desist notice did not yield results. He further submits that such
cease and desist notice was replied to on 19.10.2023. Since such reply clearly
indicated the unwillingness of the defendants to resolve the dispute amicably,
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he submits that the plaintiff collated necessary documents to file the suit.
Since such documentation is extensive, learned counsel submits that the
process could be completed only in December 2023 and that the suit was filed
immediately upon the re-opening of the Court in January 2024. Learned
counsel next refuted the contention that the suit does not contemplate urgent
interim relief. Towards this end, learned counsel referred to several
paragraphs of the plaint, such as paragraphs 30, 32 and 35.
5. He also referred to the counter affidavit filed in response to this
application and pointed out that such counter affidavit also contains reasons
for not resorting to pre-institution mediation. According to learned counsel,
the plaintiff has not contravened Section 12A because the suit does
contemplate urgent interim relief.
6. Based on the rival contentions, two questions arise for determination.
The first question is whether the plaintiff contravened Section 12A of the
Commercial Courts Act. Sub-section (1) of Section 12A, which is relevant
for present purposes, is as under:
“12A. Pre-litigation Mediation and
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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”.
This provision was interpreted in multiple judgments, including two
judgments of the Hon'ble Supreme Court. In the factual context of a suit
being presented without an interim application, the provision was interpreted
in Patil Automation Private Limited and others v. Rakheja Engineers Private
Limited (Patil Automation), 2022 SCC Online SC 1028. The Supreme Court
concluded, in Patil Automation, that Section 12A is mandatory and that the
Court may exercise suo motu powers to reject the plaint for non-compliance
with this provision. Thereafter, the provision fell for interpretation in Yamini
Manohar (referred to and cited earlier) in the context of an application being
filed for interim relief by the plaintiff concerned. The following material
findings were recorded in the said judgment:
“10. We are of the opinion that when a plaint is
filed under the CC Act, with a prayer for an urgent
interim relief, the commercial court should examine
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the nature and the subject-matter of the suit, the
cause of action, and the prayer for interim relief. The
prayer for urgent interim relief should not be a
disguise or mask to wriggle out of and get over
Section 12-A of the CC Act. The facts and
circumstances of the case have to be considered
holistically from the standpoint of the plaintiff. Non-
grant of interim relief at the ad interim stage, when the
plaint is taken up for registration/admission and
examination, will not justify dismissal of the
commercial suit under Order 7 Rule 11 of the Code; at
times, interim relief is granted after issuance of notice.
Nor can the suit be dismissed under Order 7 Rule 11 of
the Code, because the interim relief, post the
arguments, is denied on merits and on examination of
the three principles, namely : (i) prima facie case, (ii)
irreparable harm and injury, and (iii) balance of
convenience. The fact that the court issued notice
and/or granted interim stay may indicate that the court
is inclined to entertain the plaint.
11. Having stated so, it is difficult to agree with
the proposition that the plaintiff has the absolute
choice and right to paralyse Section 12-A of the CC
Act by making a prayer for urgent interim relief.
Camouflage and guise to bypass the statutory mandate
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of pre-litigation mediation should be checked when
deception and falsity is apparent or established. The
proposition that the commercial courts do have a role,
albeit a limited one, should be accepted, otherwise it
would be up to the plaintiff alone to decide whether to
resort to the procedure under Section 12-A of the CC
Act. An “absolute and unfettered right” approach is
not justified if the pre-institution mediation under
Section 12-A of the CC Act is mandatory, as held by
this Court in Patil Automation.
12. The words “contemplate any urgent interim
relief” in Section 12-A(1) of the CC Act, with
reference to the suit, should be read as conferring
power on the court to be satisfied. They suggest that
the suit must “contemplate”, which means the plaint,
documents and facts should show and indicate the
need for an urgent interim relief. This is the precise
and limited exercise that the commercial courts will
undertake, the contours of which have been explained
in the earlier paragraph(s). This will be sufficient to
keep in check and ensure that the legislative
object/intent behind the enactment of Section 12-A of
the CC Act is not defeated.” (emphasis added)
7. The above excerpts from Yamini Manohar indicate clearly that the
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plaintiff cannot unilaterally and conclusively decide that the suit contemplates
urgent interim relief. Such satisfaction is required to be recorded by the court
concerned after considering the nature of the suit, the cause of action and the
like from the standpoint of the plaintiff. The Supreme Court proceeded to
clarify that the success or failure of the plaintiff in the interlocutory
application is immaterial for purposes of deciding whether the suit
contemplates urgent interim relief. The Supreme Court further held that the
plaint, documents and facts should be examined holistically to determine
whether the suit contemplates urgent interim relief, including by considering
whether the interim application is a device to circumvent pre-institution
mediation. These principles should be applied to decide this application.
8. As stated at the outset, both the plaint and the interlocutory
application were executed by the plaintiff on 22.12.2023. The suit is in
respect of alleged infringement of copyright and passing off. In the plaint, at
paragraph 34, after referring to the issuance of cease and desist notice dated
10.10.2023, the plaintiff asserts that the attempt to amicably resolve the issue
prior to the institution of the present suit was not fruitful. At paragraph 35, in
relevant part, the plaintiff asserts as under:
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“35. ....The plaintiff states that while a
wrongful gain through such unfair trade practise
is achieved by the Defendants, the Plaintiff is put
to wrongful and unjust loss by such acts of the
Defendants. The Plaintiff states that the
continued acts of the Defendants pose grave
prejudice to the intellectual property and interests
of the Plaintiff, until the Defendants are
restrained by suitable and effective Orders of this
Hon'ble Court.”
In the affidavit in support of the application for interim injunction, similar
averments are contained in paragraphs 32 and 33. The suit is admittedly in
relation to intellectual property and associated common law rights asserted by
the plaintiff, wherein every act of alleged infringement or passing off would
give rise to a fresh cause of action. The plaint and affidavit were executed a
little over two months after the receipt of the reply from the defendants to the
cease and desist notice. When these facts and circumstances are considered
cumulatively, it cannot be concluded that the interim application was
designed to circumvent Section 12A or that the suit does not contemplate
urgent interim relief.
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9. Since a conclusion was reached that the plaintiff did not contravene
Section 12A, it is unnecessary to dilate on whether the plaint is liable to be
rejected under Order VII Rule 11(d) of the CPC. It is sufficient to record that
a plaint is liable to be rejected on the ground that the suit is barred by law
only if such conclusion can be drawn from the statements in the plaint. On
closely examining the statements in the plaint, I am unable to conclude
therefrom that the suit is barred by law.
10. For the reasons set out above, the application to reject the plaint is
dismissed without any order as to costs.
25.09.2024
Index : Yes/No
Internet : Yes/No
Neutral Citation: Yes/No
vm
https://www.mhc.tn.gov.in/judis
SENTHILKUMAR RAMAMOORTHY,J.
vm
in C.S(Comm Div).No.58 of 2024
https://www.mhc.tn.gov.in/judis
25.09.2024
https://www.mhc.tn.gov.in/judis
