2023 (5) TMI 1307 - HC - Indian Laws

Seeking permanent injunction restraining infringement of trademark and passing off along with other ancillary reliefs - plaintiff failed to comply with provisions of Section 12A of the Commercial Courts Act mandating pre-institution mediation before filing a commercial suit - Order XXXIX Rules 1 and 2 of the CPC - HELD THAT - In CHANDRA KISHORE CHAURASIA VERSUS RA PERFUMERY WORKS PRIVATE LTD. 2022 (10) TMI 1233 - DELHI HIGH COURT , a Division Bench of this Court interpreted the expression, contemplate any urgent interim relief used in Section 12A of the Commercial Courts Act. In the case before the Division Bench, the Commercial Court did not accept the contention of the defendant that the plaint should be rejected under Order VII Rule 11 of the CPC on the ground that the suit had been filed without complying with the mandatory provisions of Section 12A of the Commercial Courts Act. The facts of the present case are very similar to those before the Coordinate Bench in BOLT TECHNOLOGY OU VERSUS UJOY TECHNOLOGY PRIVATE LIMITED AND ORS. 2022 (8) TMI 1495 - DELHI HIGH COURT . Like in the present case, the plaintiff in Bolt Technology, had issued a cease and desist notice dated 6th November, 2020 to the petitioner/defendant to which no response was received. In respect of the notice of opposition filed by the plaintiff therein against the trademark application of the defendant, the defendant filed a counter-statement stating that the opposition was frivolous - the Court in the aforesaid case held that the requirement of Section 12 A of the Commercial Courts Act stands satisfied on both counts i.e., i. Firstly, the Plaintiff had attempted an amicable resolution which was clearly refuted, rejected and condemned by the Defendants; Secondly, the Plaintiff has also sought urgent interim relief before this Court and is entitled to maintain the present suit. The plaintiff has also filed along with the plaint an application for grant of ex parte interim injunction under Order XXXIX Rules 1 and 2 of the CPC against the defendant from using the impugned mark. In the said application also, it has been pleaded that the plaintiff shall suffer an irreparable loss and injury, which cannot be compensated in monetary terms unless an immediate order of injunction is passed . The plaintiff also filed an application seeking exemption from complying with the provisions of Section 12A of the Commercial Courts Act on the ground that the plaintiff is seeking ex parte ad interim injunction against the defendant. The Commercial Court correctly came to the conclusion that the suit filed by the plaintiff contemplated grant of urgent interim reliefs against the defendant and therefore, the plaintiff was not required to exhaust the remedy of pre-institution mediation as contemplated under Section 12A(1) of the Commercial Courts Act. There is no merit in the present petition and the same is dismissed.

Summary

Issues Involved:
1. Compliance with Section 12A of the Commercial Courts Act, 2015.
2. Requirement of pre-institution mediation for suits seeking urgent interim relief.
3. Interpretation of the term "contemplate any urgent interim relief" under Section 12A.

Summary:

1. Compliance with Section 12A of the Commercial Courts Act, 2015:
The petitioner/defendant filed an application under Order VII Rule 11 of the CPC seeking rejection of the plaint on the grounds that the plaintiff failed to comply with Section 12A of the Commercial Courts Act, 2015, which mandates pre-institution mediation before filing a commercial suit. The petitioner relied on the Supreme Court judgment in *Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd.*, 2022 SCC OnLine SC 1028, asserting that mere filing of an application under Order XXXIX Rules 1 and 2 of CPC does not exempt the plaintiff from this mandatory requirement.

2. Requirement of pre-institution mediation for suits seeking urgent interim relief:
The respondent/plaintiff argued that in intellectual property cases, the relief of interim injunction is crucial, and urgent interim relief was contemplated in the present suit. The Commercial Court agreed, noting that the suit involved urgent interim relief and therefore, pre-institution mediation was not required. The Commercial Court dismissed the petitioner's application under Order VII Rule 11 of the CPC, emphasizing the importance of interim injunctions in intellectual property cases.

3. Interpretation of the term "contemplate any urgent interim relief" under Section 12A:
The petitioner contended that the contemplation of urgent interim relief should not be left solely to the plaintiff's discretion and that the court must assess whether the suit genuinely requires bypassing the mandatory pre-institution mediation. The respondent countered that the Supreme Court in *Patil Automation* did not address cases involving urgent interim relief and that the present suit, filed before the judgment's effective date, was not subject to the same ruling. The respondent also cited *Chandra Kishore Chaurasia v. R A Perfumery Works Private Ltd.*, 2022 SCC OnLine Del 3529, and *Bolt Technology OU v. Ujoy Technology Private Limited and Ors.*, 2022 SCC OnLine Del 2639, arguing that the determination of urgent interim relief should be based solely on the pleadings and relief sought by the plaintiff.

The High Court, referencing the Division Bench in *Chandra Kishore Chaurasia*, upheld that the question of urgent interim relief is determined by the plaintiff's pleadings and relief sought, not by the court's decision to grant such relief. The court found that the present suit did contemplate urgent interim relief, as evidenced by the pleadings and the application for an ex parte interim injunction.

Conclusion:
The High Court dismissed the revision petition, affirming the Commercial Court's decision that the suit involved urgent interim relief and thus did not require pre-institution mediation under Section 12A of the Commercial Courts Act. All pending applications were disposed of accordingly.