TaxTMI 
TaxTMI 
2023 (10) TMI 1374
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....lant before filing the suit approached the Delhi High Court Mediation and Conciliation Centre (Samadhan) ('DHCMCC(S)', for short) for Pre-Institution Mediation. The petition was registered as petition No. 51/2020. The mediation/conciliation sessions were fixed for February 20, 2020, February 24, 2020 and March 04, 2020. The defendant did not appear despite notices and therefore, the proceedings were declared non-starter. Accordingly, the non-starter report dated March 05, 2020 was filed. 4. The appellant filed the suit through e-filing on April 02, 2022. The respondent/defendant was served by publication in the newspapers. She was proceeded ex parte vide order dated February 23, 2023 and her right to file written statement was closed as she did not appear and did not make any request for extension of time to file the written statement beyond the period of thirty days from the date of service. 5. It was in this background that the appellant had filed an application under Order VIII Rule 10 CPC for passing a decree in his favour. It was during the hearing on that application that a query was put by the learned DJ whether the Non-starter report dated March 05, 2020 issued by....
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....ituted without compliance of Section 12A CCA. The suits filed prior to 20.08.2022 are protected in terms of the judgment by Hon'ble Supreme Court in Patil Automation Case unless the jurisdictional High Court had already declared Section 12A CCA mandatory. (iii) For the pre-institution mediation the plaintiff has to approach the Authority authorized by the Central Government under Section 12A (2) CCA. The Authority will entertain the application according to territorial, pecuniary jurisdiction and subject matter of the suit. (iv) The Authority will issue notice to the opposite party. If the opposite party does not appear, non-starter report will be issued in Form-3, Schedule-I of the Rules framed by the Central Government. If the opposite party appears and agrees for mediation, the Authority shall refer the parties to a Ld. Mediator/Institution empaneled by it. Depending upon the success or failure of the mediation, the mediator will issue the appropriate certificate in the Form prescribed under Rules framed by the Central Government. (v) If the pre-institution mediation is a success, the settlement shall have the effect of an arbitral award in terms of Section 30 of Arbit....
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....nical approach, the learned DJ should have decided the case on merits as the predecessor Court had issued summons after satisfying the procedural compliance of Section 12-A of the CCA and after perusing the Non-starter report had issued the summons to the respondent. e) He states that the whereabouts of respondent/defendant were not known and even in the suit the defendant was ex parte, hence, no fruitful purpose was/is likely to be achieved even if the appellant had approached the DLSA for the purposes of Pre-Litigation Mediation. He also states that the hyper-technical approach by the learned DJ defeats the purpose and it is settled position of law whenever there is a conflict between substantial justice and hyper-technicality then the substantial justice should be preferred. f) Another submission of the learned counsel for the appellant is that, under Section 12-A of the CCA, DHCMCC(S) is an appropriate centre for the purposes of Pre-Institution Mediation. He also states that DHCMCC(S) follows Delhi High Court Mediation and Conciliation Rules, 2004, which lays down the procedure for Mediation and Conciliation which was made by the High Court of Delhi following the principles....
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....the pre-institution mediation under Section 12-A of the CCA. The relevant extract of proposed amendment to Section 12-A of the CCA is as below: "12A. 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 prelitigation mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government. (2) For the purposes of pre-litigation mediation, the Central Government may, by notification, authorise- (i) the Authority, constituted under the Legal Services Authorities Act, 1987 (39 of 1987); or (ii) a mediation service provider as defined under clause (l) of section 3 of the Mediation Act, 2021. ..." m) He states that by approaching the DHCMCC for pre-Institution Mediation appellant has in full, effective and valid compliance of Section 12-A of the CCA, sought settlement of dispute. According to him, there can be various other scenarios, which can be considered as full, effective and valid compliance of Section 12-A of the CCA, which the impugned judgment completely loses sight of: i. If before fi....
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....tlement, 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 award on agreed terms under sub-section (4) of section 30 of the Arbitration and Conciliation Act, 1996 (26 of 1996).]" 12. It is settled law that that in terms of the judgment Patil Automation Pvt. Ltd. (supra), the compliance of Section 12-A of the CCA is mandatory unless urgent relief is contemplated. A notification has been issued by the Government of India on July 03, 2018 by which the Central Government has made rules in respect of Commercial Courts (Pre-Institution of Mediation and Settlement) Rules, 2018 as contemplated under sub-section 21A read with sub-section (1) of Section 12-A of the CCA. 13. The sub-section 2 of Section 12-A mandate the Central Government may by notification authorise the authorities constituted under the Legal Services Authorities Act, 1987 for the purposes of Pre-Institution Mediation. 14. In the present case, the appellant has not made his claim in terms of the notification of July 03, 2018 before the District Legal Ser....
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.... Mediation process before the DHCMCC(S). 18. One of the plea of Mr. Garg is that, as per the Mediation Act, 2023 which has been notified by the Central Government, Section 40 of which reads as under, Court annexed mediation centre has been recognised as a centre for exploring mediation:- "40. (1) "mediation service provider" includes- (a) a body or an organisation that provides for the conduct of mediation under this Act and the rules and regulations made thereunder and is recognised by the Council; or (b) an Authority constituted under the Legal Services Authorities Act, 1987; or (c) a court-annexed mediation centre; or (d) any other body as may be notified by the Central Government: Provided that the bodies referred to in clauses (b), (c) and (d) shall be deemed to be mediation service providers recognised by the Council. (2) The mediation service provider shall be recognised by the Council in the manner as may be specified." 19. So, the DHCMCC(S) being a court-annexed mediation centre though under the Mediation Act, 2023 and not under the CCA Act, we are of the view that there has been a compliance of the spirit underlying Section 12A of the CCA. The issue can be....