[Cites 4, Cited by 0]

Orissa High Court

Afr M/S Ele Animations (P) Ltd vs Satya Swagat Mohanty ....... Opposite ... on 31 March, 2026

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

              IN THE HIGH COURT OF ORISSA AT CUTTACK
                            CRP No. 47 of 2025

                  (An application under Section 115 of CPC)

AFR    M/s Ele Animations (P) Ltd.,
       Bhubaneswar                               .........       Petitioner


                                 -Versus-.

       Satya Swagat Mohanty                      .......     Opposite Party

       Advocate(s) appeared in this case:-
       ______________________________________________________________
       For Petitioner       : M/s. Gyan S. Samantray, S. Routray,
                              B.P. Samal, G. Dash, B.P. Sarangi &
                              B.C. Pattnaik, Advocates

       For Opp. Party       : Ms.Pami Rath, Sr. Advocate with
                              M/s. S. Gumansingh, A. Shilpa Rani
                              Achary, Depak Singhal, Advocates
       _______________________________________________________________
       CORAM:
            JUSTICE SASHIKANTA MISHRA
                                JUDGMENT

st 31 March, 2026

SASHIKANTA MISHRA, J. The Petitioner is Defendant No.1 in Civil

Suit No. 228 of 2025 pending before the Court of the learned

Civil Judge (Senior Division), Commercial Court, Bhubaneswar,

wherein, the present Opposite Party is the Plaintiff. The present

revision is directed against order dated19.09.2025 passed by

the said Court,whereby the application filed by the Petitioner

under Order VII Rule 11 of CPC, seeking rejection of the plaint

on the ground of non-compliance with the mandatory

requirement of pre-institution mediation under Section 12-A of

the Commercial Courts Act, 2015 was rejected. Further, the

rejection of application filed by the petitioner vide order dated

19.05.2025 and to recall the order dated 19.09.2025 are also

impugned herein.

2. The facts, briefly stated are that the Opposite Party,

as Plaintiff, instituted Civil Suit No. 228 of 2025 on 13.05.2025

seeking, inter alia, a decree of permanent and mandatory

injunction alleging infringement of its copyright in respect of

certain artistic works relating to the depiction of 'Lord

Jagannath' and a character described as 'Jagan.' Along with the

plaint, the Plaintiff filed an application under Order XXXIX

Rules 1 and 2 of the Code of Civil Procedure seeking ad interim

injunction, as well as an application seeking exemption from

compliance with the requirement of pre-institution mediation

under Section 12-A of the Commercial Courts Act, 2015 on the

ground of urgency.

By order dated 19.05.2025, the Commercial Court

granted exemption from pre-institution mediation. The

Petitioner, upon entering appearance, filed an application under

Order VII Rule 11 CPC contending that the suit was not

maintainable for want of compliance with Section 12-A of the

Act, as no genuine urgency was disclosed in the plaint or the

interlocutory application. It was further stated that the cause of

action was stated to have arisen in May 2024, whereas the suit

was instituted only in May 2025, stating absence of plea of

urgency.

The Commercial Court, upon consideration,

rejected the said application by the impugned order holding

that the suit contained urgent interim relief and therefore,

would fall within the exception under Section 12-A of the Act.

Being aggrieved, the present revision has been filed.

3. Heard Mr. S. Routray, learned counsel for the

Petitioner-Defendant No.1 and Ms. Pami Rath, learned Senior

Counsel with Ms. S. Gumansingh learned counsel for the

Opposite party-plaintiff.

4. Mr. Routray would argue that that the Court below

committed illegality in rejecting the application under Order VII

Rule 11 CPC by failing to appreciate that compliance with

Section 12-A of the Commercial Courts Actis mandatory in

nature, as held by the Supreme Court in several judgments. He

submits that the exemption from pre-institution mediation can

be granted only where the plaintiff genuinely seeks urgent

interim relief, and not where such urgency is illusory or created

merely to evade the statute. It is his submission that a bare

reading of the plaint would show that the plaintiff has himself

pleaded that the alleged cause of action arose in May 2024 and

continued till February, 2025, yet the suit was instituted only

on 13.05.2025, i.e., after a considerable lapse of time. According

to him, such delay is inconsistent with any plea of urgency and

clearly demonstrates that the exemption sought was a mere

device to bypass the mandatory requirement of pre-institution

mediation.

He further submits that the conduct of the plaintiff

also fails to justify the plea of urgency inasmuch as the

application for injunction was served upon the petitioner only

on 27.08.2025, i.e., after more than three months from the date

of service of the plaint. This, according to him, indicates that no

immediate relief was required. He also argues that the order

dated 19.05.2025 granting exemption from pre-institution

mediation is a non-speaking order passed in absence of any

reason as to urgency and therefore, suffers from non-

application of mind.

5. Per contra, Ms. Rath would argue that the suit

pertains to continuing infringement of copyright, thereby giving

rise to a recurring cause of action. She submits that the

Plaintiff has specifically sought urgent interim relief under

Order XXXIX Rules 1 and 2 of CPC to restrain ongoing violation

of its rights, and therefore, the case squarely falls within the

exception under the proviso to Section 12-A of the Commercial

Courts Act.

She further submits that at the stage of considering

an application under Order VII Rule 11 of CPC, the Court is

required to confine its examination to the averments made in

the plaint and cannot enter into a detailed examination of the

defence raised by the Defendant. The plea of urgency is to be

assessed on the basis of the pleadings at the time of institution,

and not on subsequent procedural aspects such as the timing

of service of interlocutory applications. She also argues that

delay in instituting the suit does not by itself defy urgency in

cases involving continuing infringement, where the cause of

action is recurring in nature.

6. This Court has heard learned counsel for the

parties at length and carefully considered their respective

submissions on the core issue involved, i.e., whether

compliance with Section 12-A of the Commercial Courts Act was

mandatory in the facts of the present case or whether the Court

below was justified in entertaining the suit by granting

exemption on the ground of urgency as made out in the plaint.

7. Before adverting to the facts of the present case, it

would be apposite to refer to the decision of the Supreme Court

in Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd.1,

wherein it was held that Section 12-A mandates pre-institution

mediation in commercial disputes which do not contemplate

urgent interim relief. At the same time, the Supreme Court

recognized that where the suit contemplates urgent interim

(2022) 10 SCC 1

relief, the requirement of pre-institution mediation stands

exempted.

Thus, the legal position is no longer res integra that

although Section 12-A is mandatory in nature, the proviso

permits institution of a suit without resorting to pre-institution

mediation, provided the Court is satisfied that the suit involves

urgent interim relief. The satisfaction as to urgency is required

to be arrived at on the basis of the pleadings and the nature of

reliefs sought by the plaintiff.

8. In view of the above position of law, this Court shall

now proceed to examine the averments made in the plaint and

the interlocutory application filed before the learned Court

below to ascertain whether the Court below was justified in

entertaining the suit by exempting the plaintiff from complying

with the requirement of pre-institution mediation or not.

9. A careful reading of the plaint reveals that the

Plaintiff has alleged infringement of its copyright in respect of

certain artistic works relating to the depiction of 'Lord

Jagannath' and the character 'Jagan' and has further asserted

that such infringement is continuing in nature. The plaint

(which seeks the relief of permanent injunction), read along

with the application under Order XXXIX Rules 1 and 2 CPC,

indicates that the Plaintiff has sought immediate injunctive

relief to restrain the alleged on-going acts of infringement.

10. The principal contention of the Petitioner is that the

Plaintiff himself pleaded that the cause of action arose in May

2024, whereas the suit was instituted only on 13.05.2025,

thereby negating any claim of urgency. The said submission of

Mr. Routray is not tenable for the reason that in cases involving

continuing or recurring causes of action, particularly in matters

of alleged infringement, mere delay in instituting the suit does

not, by itself, extinguish the element of urgency. So long as the

alleged infringement continues, the necessity for interim

protection may still subsist. Judgment of the Supreme Court in

this regard may be had to the case of Novenco Building &

Industry v. Xero Energy Engineering Solutions (P) Ltd.2

20. The legal test distilled from the aforesaid decisions for the purposes of rejection of the plaint and for adjudication of interim relief can be culled out as follows:

(i) Section 12A mandatorily requires pre-institution mediation for commercial suits, non-compliance of which would ordinarily render the plaint institutionally defective.

2025 INSC 1256 : 2025 SCC OnLine SC 2278

(ii) A plaintiff can be exempted from the requirement of Section 12A only when the plaint and the documents attached with it clearly show a real need for urgent interim intervention. A wholesome reading of the plaint and the material annexed to the plaint ought to disclose the need for urgent relief.

(iii) The court must look at the plaint, pleadings and supporting documents to decide whether urgent interim relief is genuinely contemplated. The court may also look for immediacy of the peril, irreparable harm, risk of losing rights/assets, statutory timelines, perishable subject-matter, or where delay would render eventual relief ineffective.

(iv) A proforma or anticipatory prayer for urgent relief used as a device to skip mediation will be ignored and the court can require the parties to comply with Section 12A of the Act.

(v) The court is not concerned with the merits of the urgent relief, but if the relief sought seems to be plausibly urgent from the standpoint of the plaintiff the court can dispense with the requirement under Section 12A of the Act.

ANALYSIS

21. Thus, the question whether a suit 'contemplates any urgent interim relief' needs to be examined on the touchstone of the aforementioned criteria. The issue which arises for consideration in this appeal is whether a suit alleging continuing infringement of patent and design rights, accompanied by a prayer for interim injunction, can be said to contemplate urgent relief within the meaning of Section 12A of the Act, notwithstanding certain delay in its institution.

22. The subject matter of the present action is continuing infringement of intellectual property. Each act of manufacture, sale, or offer for sale of the infringing product constitutes a fresh wrong and recurring cause of action. It is well settled in law that mere delay in bringing an action does not legalise an infringement and the same cannot defeat the right of the proprietor to seek injunctive relief against the dishonest user5. The appellant has pleaded that Xero Energy, its former distributor, has dishonestly appropriated its proprietary designs and patents to manufacture and market identical fans under deceptively similar name. The accompanying material demonstrates that such infringing activity is continuing and causing

immediate and irreparable harm to the appellant's business reputation, goodwill and proprietary rights.

23. From the standpoint of the appellant, each day of continuing infringement aggravates injury to its intellectual property and erodes its market standing. The urgency, therefore, is inherent in the nature of the wrong and does not lie in the age of the cause but in the persistence of the peril. The court cannot be unmindful of the fact that intellectual property disputes are not confined to the private realm. When imitation masquerades as innovation, it sows confusion among consumers, taints the market place and diminishes faith in the sanctity of the trade. The public interest, therefore, becomes the moral axis upon which the urgency turns. Therefore, the public interest element, need to prevent confusion in the market and to protect consumers from deception further imparts a colour of immediacy to the reliefs sought.

24. The appellant's prayer for injunction cannot be characterised as mere camouflage to evade mediation. It is a real grievance founded on the continuing nature of infringement and irreparable prejudice likely to be caused by the delay. The court must look beyond time lag and evaluate the substance of the plea for interim protection. The insistence of pre-institution mediation in a situation of ongoing infringement, in effect, would render the plaintiff remediless allowing the infringer to continue to profit under the protection of procedural formality. Section 12A of the Act was not intended to achieve such kind of anomalous result.

11. In the present case, the pleadings disclose that the

alleged acts of infringement are continuing in nature. Therefore,

at this stage, it cannot be conclusively held that the plea of

urgency is illusory merely on account of delay in approaching

the Court.

12. Even otherwise, this Court observes that in

disputes relating to intellectual property rights, where

allegations of infringement are raised, the nature of injury

complained of is often continuing and capable of causing

irreparable harm to the rights holder. In such cases, if the

pleadings disclose a prima facie case of on-going violation, the

requirement of pre-institution mediation, though ordinarily

mandatory, cannot be applied in a manner so as to defeat the

very purpose of granting timely and effective relief. The object of

Section 12-A is to encourage settlement in commercial disputes,

however, the said provision itself recognizes, by way of proviso,

that in cases involving urgent interim relief, recourse to

mediation may be dispensed with.

13. As regards the contention relating to delayed

service of the interim injunction application is concerned, the

same pertains to post-institution conduct. While such delay

may reflect procedural lapse, the same cannot be determinative

of the existence or otherwise of urgency at the time of

institution of the suit. The test under Section 12-A is to be

applied with reference to the pleadings at the threshold, and not

on the basis of subsequent events alone.

14. The further contention raised by the Petitioner that

the order dated 19.05.2025 granting exemption from pre-

institution mediation is a non-speaking order is not acceptable.

It is true that recording of reasons is an essential facet of

judicial orders, however, the exemption was granted at the

initial stage upon consideration of the pleadings. The order

dated 19.05.2025 itself shows that the Court below applied its

mind taking into account facts of the case and has taken a view

that the suit contained urgent interim relief. Such a view, in the

facts of the case being a plausible one, does not call for

interference in revisional jurisdiction, particularly when it has

not been demonstrated as to how such finding is wrong.

For better appreciation, the order dated 19.05.2025

is reproduced below-

"Heard from the plaintiff. In this suit, the plaintiff has filed injunction regarding his infringement of copy right in the art work of lord Jagannath relating to the character 'Jagan'. In my opinion, the above interim relief is urgent in nature. Accordingly, taking into account the above facts of this case, the petition is allowed. Accordingly, the suit is admitted. Issue summons to the defendants in both the ways. Put up on 07-07-2025 for awaiting S.R. & Ρ.Α."

It is well settled that the scope of interference

under Section 115 of the Code of Civil Procedure is limited and

supervisory in nature. Unless the order impugned suffers from

jurisdictional error, perversity, or material irregularity, this

Court would not be justified in interfering with the same. In the

present case, no such infirmity has been demonstrated. The

Court below being subjectively satisfied, this Court exercising

revisional jurisdiction is not persuaded to embark upon the

exercise to substitute its view for that of the Court below.

15. For the foregoing reason therefore, the application

filed by defendant No. 1 for rejection of the plaint cannot be

allowed. The order refusing to recall the order dated 19.09.2025