TaxTMI 
TaxTMI 
2025 (1) TMI 1819
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....ed by the defendants in the written statement, the suit was converted to a commercial suit vide order dated 22.03.2024 and it was renumbered as CS (COMM) No.286/2024. To be noted, that prior to such conversion, vide order dated 05.10.2023 the parties at their joint request were referred to mediation under the aegis of the Delhi High Court Mediation and Conciliation Centre, which ended as "not settled". 4. However, vide order dated 22.03.2024 the questions as to whether the mediation that the parties have already undergone, post-institution of the suit, would be the sufficient compliance of Section 12-A of the Commercial Courts Act [in short 'the Act'] and whether Section 12-A would be applicable when the plaintiff has sought urgent interim relief, were also kept open to be decided before proceeding further in the suit. 5. It is in the above backdrop that the parties have been heard on the question of compliance of Section 12-A of the Act. 6. Mr. Aman Lekhi, learned Senior Counsel appearing on behalf of the plaintiff submits that since the parties have already availed/exhausted the mediation process before the suit was converted into a commercial suit, therefore, the mandat....
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....Suit i.e. CS (OS) 601/2023 is camouflage and guise to by-pass the statutory mandate of the pre-litigation mediation and only that limited aspect has to be considered by the Commercial Courts in view of the law laid down in Yamini Manohar (supra). 11. He submits that this Court vide order dated 22.03.2024 converted the original suit into commercial suit and directed the plaintiff to comply with the requirements outlined in the Commercial Courts Act, however, no steps have been taken by the plaintiff to meet these requirements. He further submits that any mediation between the parties, post institution of the suit is not a sufficient compliance of Section 12A of the Act, which has been held to be mandatory by the Hon'ble Supreme Court in Patil Automation Pvt. Ltd. vs. Rakheja Engineers Pvt. Ltd. (2022) 10 SCC 1. He submits that in the said decision, the Hon'ble Supreme Court has held that any suit instituted violating the mandate of Section 12A must be visited with rejection of the plaint under Order VII Rule 11 CPC. 12. In rejoinder, Mr. Lekhi submits that when the suit was filed, the agreements were still subsisting. 13. Having heard the learned Senior Counsel for the plai....
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....erpts from the decision reads thus: "100. In the cases before us, the suits 'do not contemplate urgent interim relief. As to what should happen in suits which do contemplate urgent interim relief or rather the meaning of the word "contemplate" or urgent interim relief we need not dwell upon it. The other aspect raised about the word "contemplate" is that there can be attempts to bypass the statutory mediation under Section 12-A by contending that the plaintiff is contemplating urgent interim relief, which in reality, it is found to be without any basis. Section 80(2)CPC permits the suit to be filed where urgent interim relief is sought by seeking the leave of the court. The proviso to Section 80(2) contemplates that the court shall, if, after hearing the parties, is satisfied that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to the court after compliance. Our attention is drawn to the fact that Section 12-A does not contemplate such a procedure. This is a matter which may engage attention of the lawmaker. Again. we reiterate that these are not issues which arise for our consideration. In the fact of the cases admittedly ....
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...., 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 [Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 : (2023) 1 SCC (Civ) 545]. 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 Supplied) 17. The prayer in the suit is for specific performance, as well as, for the recovery. The caption of the s....
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.... within the suit property. ii) Ad-Interim order in terms of disposal of this application. iii) Ad-Interim Ex-parte Order with regard to No Third-Party Interest in the Suit Property. iv) Cost of Losses Incurred for removing the building material. v) Any other relief/order which this Hon'ble Court deems fit and proper under the facts and circumstances of the case in favour of the plaintiff and against the defendants." 20. This Court while issuing summons in the suit also directed for issuance of notice in the application [I.A.No.19153/2023]. Further, in view of the urgency articulated by the learned counsel for the defendants, the matter was directed to be listed for hearing on 05.10.2023. The relevant part of the order dated 27.09.2023 reads thus: "9. Issue notice to the defendants, on necessary steps being taken by the plaintiff, through ail permissible modes, including electronically. Dasti in addition. 10. Learned counsel for the plaintiff requests for urgent ad-interim relief inasmuch as the defendants are stated to be in flagrant breach of their obligations as contained in the agreement dated 19.04.2021 and the agreem....
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....on the touchstone of three principles namely, (i) prima facie case, (ii) irreparable harm and injury, and (iii) the balance of convenience, is not to be gone into at this stage nor the eventual dismissal of the said application can lead to rejection of plaint under Order VII Rule 11 CPC [See Yamini Manohar vs. T.K.D. Keerthi, (2024) 5 SCC 815] . However, at this stage suffice it to note that this Court was inclined to entertain the application for interim relief as it issued notice in the application and subsequently vide order 27.09.2023 the court fixed the matter at a short date i.e. on 05.10.2023 having regard to the urgency articulated by the learned counsel for the plaintiff. 23. The above aspects of the matter shows that the interim relief sought was justified and not camouflage or guise to bypass the statutory mandate of pre-institution mediation. 24. The question also needs to be examined from another angle. As above noted, at joint request of the parties, they were referred to mediation under the aegis of the Delhi High Court Mediation and Conciliation Centre, vide order dated 05.10.2023 which ended as "not settled" despite endeavour to resolve the dispute in three h....