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TMI Blog2023 (5) TMI 1307X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial Courts Act, 2015. 3. The petitioner/defendant filed an application under Order VII Rule 11 of the CPC seeking rejection of the plaint as being not maintainable as the plaintiff failed to comply with provisions of Section 12A of the Commercial Courts Act mandating pre-institution mediation before filing a commercial suit. 4. The case of the petitioner before the Commercial Court was that mere filing of an application under Order XXXIX Rules 1 and 2 of CPC would not exempt the plaintiff from compliance under Section 12A of the Commercial Courts Act, as the same is a mandatory requirement. Reliance in this regard has been placed on the judgment of the Supreme Court in Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd., 2022 SCC OnLine SC 1028. 5. The case set up by the respondent/plaintiff before the Commercial Courts was that in cases pertaining to intellectual property, the relief of interim injunction, including ex parte ad interim stage is extremely important as the cases relating to intellectual property are not only for the benefit of the plaintiff but also for the benefit of the public at large. In the present case, the respondent/plaintiff had made valid grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court has to apply its mind to assess whether the plaint and the application for interim relief contemplates an urgent relief that would require bypassing the mandatory provision of Section 12A of the Commercial Courts Act. iii. The Commercial Court failed to conduct the exercise to determine whether the present suit contemplated any urgent interim relief and dismissed the application filed by the petitioner only on the ground that in intellectual property cases, relief of interim injunction is extremely important. iv. The petitioner places reliance on Section 80(2) of the CPC to interpret the provisions of Section 12A of the Commercial Courts Act. Under Section 80(2) of the CPC, a person can file a suit against the Government without sending the requisite notice in terms of Section 80(1) of the CPC after taking leave of the Court. Therefore, while considering grant of leave under Section 80(2), the Court would have to apply its judicial mind to determine if urgency is contemplated in the suit or not. Reliance in this regard has been placed on the judgment of the Supreme Court in State of A.P. v. Pioneer Builders, (2006) 12 SCC 119. 8. Per contra, counsel for the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government." 11. The aforesaid provision was the subject matter of consideration before the Supreme Court in Patil Automation (supra). The relevant observations of the aforesaid judgment are set out below: "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 urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial Courts Act does not contemplate taking leave of the Court. 13. In Chandra Kishore Chaurasia (supra), 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. Before the Division Bench, a contention was raised on behalf of the defendant that the plaintiff could not be the sole judge of determining whether the provisions of Section 12A of the Commercial Courts Act are applicable or not, as is sought to be done in the present case. It was in this backdrop that the Court considered the expression, 'contemplate any urgent interim relief', as used in Section 12A(1) of the Commercial Courts Act and made the following observations: "33. This Court also finds it difficult to accept that a Commercial court is required to determine whether the urgent interim reliefs ought to have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In this factual backdrop, the Court in Bolt Technology (supra), held as under: "17. As per the experience seen in intellectual property cases, the relief of interim injunction, including at the ex parte stage and ad interim stage, is extremely important. Such matters do not merely involve the interest of the plaintiff and the defendants, which are the contesting parties before the court, but also involve the interest of the customers/consumers of the products and services in question. Intellectual property cases relate to a wide gamut of businesses such as - medicines, FMCG, food products, financial services, technology, creative works such as books, films, music, etc. Recent trends also point towards large scale misuse on the internet. In some cases, due to misuse of known marks and brands, the consumers are being duped into parting with large sums of money. The rights of the parties are affected almost on a daily basis as there is continuous manufacturing, selling, and offering of servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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