TaxTMI 
TaxTMI 
2022 (10) TMI 1233
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the territorial jurisdiction of the Court. 2. The respondent (defendant) had also sought dismissal of the suit under Order VII Rule 11(d) of the CPC on the ground that the appellant had instituted the said suit without complying with the mandatory provisions of pre-institution mediation under Section 12A of the Commercial Courts Act, 2015. The Commercial Court did not accept the said contention as the appellant had sought urgent relief. Accordingly, the said prayer of the respondent was rejected. The respondent has preferred cross-objection, assailing the impugned order to the extent the learned Commercial Court has rejected its prayer for rejection/dismissal of the plaint on the aforesaid ground. 3. The controversy to be addressed in the present appeal is two-fold. First, whether the impugned order directing return of the plaint for want of territorial jurisdiction is erroneous; and, second, whether the plaint is liable to be rejected on account of failure on part of the appellant to exhaust the remedy of pre-institution mediation as required under Section 12A of the Commercial Courts Act, 2015. Return of Plaint under Order VII Rule 10 CPC 4. The appellant had filed the su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the court has to find out whether those averments disclose a cause of action or a triable issue as such. The court cannot probe into the facts on the basis of the controversy raised in the counter." 10. In a later decision in Liverpool & London S.P. & I Association Ltd. v. M.V. Sea Success I & Anr. (2004) 9 SCC 512, the Supreme Court observed as under: "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in its entirety, a decree would be passed." 11. In Exphar Sa and Anr. v. Eupharma Laboratories Ltd. and Anr. (2004) 3 SCC 688, the Supreme Court reiterated the above proposition in the following words: "9. Besides, when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and the plaintiff was essentially aggrieved by the same. However, the said decision was set aside by the Division Bench of this Court in M/s Allied Blenders and Distillers Pvt. Ltd. v. Prag Distillery Pvt. Ltd. & Anr.: (2017) SCC OnLine Del 7225 oon the principal that the averments made in the plaint were required to be accepted as correct for the purpose of deciding an application under Order VII Rule 10 of the CPC. The plaintiff had averred that it apprehended the respondent launching its products in Delhi and that it had filed the suit as a quia timet action. If the said averments were accepted as correct-which the court was required to do for the purposes of deciding an application under Order VII Rule 10 CPC-this Court would have jurisdiction to entertain the suit. 14. Bearing the aforesaid principle in mind, it is necessary to now refer to the averments made in the plaint. Paragraphs 33 and 34 of the plaint are relevant and set out below: 33) That the cause of action for filing the present suit arose on 09.02.2021, when the plaintiff through his sales staff for the first time from the tobacco market/traders in Shahdara, Anand Vihar, Delhi learnt that in order to take the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing registration of mark 1191 for whole of India. That this Hon'ble Court has jurisdiction to entertain and try the present suit as the plaintiff is carrying on business and working for gain in Delhi within jurisdiction of this Hon'ble Court. The present dispute is a commercial in nature in terms of Section 2(1)(d) of the Commercial Courts Act, 2015." 15. It is apparent from the above that the appellant claims that the respondent is clandestinely selling its infringing goods within the territorial jurisdiction of the Court. The appellant also alleges that defendant has been advertising, soliciting and selling its goods within the jurisdiction of the Court through interactive websites. In addition, it is claimed that the defendant is carrying on business activity in Delhi by advertising its products in a trade magazine, which is circulated within the jurisdiction of the Court. In addition, the appellant claims that the respondent is also carrying on its business within the territorial jurisdiction of this Court. 16. Plainly, if the aforesaid averments are accepted as correct, the respondent's application under Order VII Rule 10 of the CPC is liable to be rejected. 17.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t's application under Order VII Rule 10 of the CPC and directs return of the plaint, cannot be sustained and is, accordingly, set aside. Rejection of plaint in terms of Section 12A of the Commercial Courts Act, 2015 23. The respondent contends that the learned Commercial Court had erred in rejecting its application under Order VII Rule 11(d) of the CPC. According to the respondent, the plaint is liable to be rejected as being barred in terms of Section 12A of the Commercial Courts Act, 2015. The learned Commercial Court had rejected the said contention as it found that the provisions of Section 12A of the Commercial Courts Act, 2015 were not applicable because the appellant (plaintiff) had sought urgent interim reliefs. 24. Mr Sengupta, learned counsel appearing for the respondent, did not dispute that the provisions of Section 12A of the Commercial Courts Act, 2015 are not applicable to suits involving urgent reliefs. He, however, submitted that the appellant (plaintiff) could not be the sole judge of determining whether the provisions of Section 12A of the Commercial Courts Act, 2015 are applicable. Therefore, it was necessary for the appellant (plaintiff) to file an appli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h manner and procedure as may be prescribed by rules made by the Central Government. (2) The Central Government may, by notification, authorise the Authorities constituted under the Legal Services Authorities Act, 1987, for the purposes of pre-institution mediation. (3) Notwithstanding anything contained in the Legal Services Authorities Act, 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. (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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is hit by the bar of Section 12A(1) of the Commercial Courts Act, 2015. The question whether a plaintiff desires any urgent relief is to be decided solely by the plaintiff while instituting a suit. The court may or may not accede to such a request for an urgent interim relief. But that it not relevant to determine whether the plaintiff was required to exhaust the remedy of pre-institution mediation. The question whether a suit involves any urgent interim relief is not contingent on whether the court accedes to the plaintiff's request for interim relief. 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 p....