Himachal Pradesh High Court | Pre-Institution Mediation Under Section 12A of Commercial Courts Act Is Mandatory | Exception Only for Genuine Urgent Relief
Safiya Malik
The High Court of Himachal Pradesh Single Bench of Justice Ajay Mohan Goel held that the plaint filed in the matter stood rejected under Order VII, Rule 11(d) of the Civil Procedure Code. The Court directed that as the suit was instituted without following the mandatory pre-institution mediation procedure prescribed under Section 12A of the Commercial Courts Act, 2015, it could not be maintained. It was further recorded that there was no circumstance justifying the plaintiff’s bypassing of this statutory requirement by merely seeking urgent interim relief. The Court concluded that the plaint was filed without lawful compliance and ordered its rejection with costs being made easy and all pending applications disposed of accordingly.
The matter involved a dispute arising out of allegations concerning infringement of registered trademarks. The plaintiff sought to restrain the defendants from manufacturing, selling, advertising, or otherwise dealing in products alleged to be deceptively similar to its own registered trademarks. The plaintiff claimed rights in the trademarks Glucon-D and Glucon-C and alleged that the defendants were using marks such as Glucose-D, Glucospoon-D, and Glucose-C in connection with glucose powder-based drink mixes and allied products. The plaintiff alleged that these marks, together with the associated trade dress, were deceptively similar to its own marks and packaging.
The reliefs claimed by the plaintiff in the suit included a decree of permanent and mandatory injunction restraining the defendants from infringing its registered trademarks and trade dress, delivery up of infringing goods for destruction, rendition of accounts of profits allegedly earned illegally, damages in the sum of Rs.1,00,77,000 or as determined by the Court, mandatory injunctions directing the defendants to take down listings of infringing products, and a declaration that the plaintiff’s registered trademarks constituted well-known marks within the meaning of the Trade Marks Act, 1999.
Alongside the suit, the plaintiff filed an application under Order XXXIX, Rules 1 and 2 CPC seeking urgent interim relief. The interim reliefs prayed for included an ex parte ad interim injunction restraining the defendants from using the impugned marks, selling products under those marks, infringing the plaintiff’s copyright in label artwork, displaying online listings of the impugned products, and from disposing of assets that may affect recovery of damages.
The defendants, through counsel, filed an application under Order VII, Rule 11(d) CPC seeking rejection of the plaint on the ground that it was barred by law. They contended that as the matter constituted a commercial dispute under Section 2(c)(xvii) of the Commercial Courts Act, the plaintiff was mandatorily required to exhaust the remedy of pre-institution mediation under Section 12A of the Act. They argued that the plaintiff had not done so, and in the absence of genuine urgency, the plaint was liable to be rejected.
The defendants further contended that the cause of action relied upon by the plaintiff dated back to April 2023 when the first Cease and Desist notice was issued. They argued that the plaintiff waited nearly two years before instituting the suit in 2025, and thus, the claim of urgent relief was not bona fide. The defendants relied upon Supreme Court precedents which mandated compliance with Section 12A except in cases of genuine urgent relief.
On the other hand, the plaintiff contended that the last cause of action arose in December 2024 when the defendants offered infringing products for sale, and that it immediately approached the Court thereafter with an application seeking urgent relief. The plaintiff argued that in such circumstances it was not obliged to undergo pre-litigation mediation.
The Court examined the plaint, pleadings, and documents. It noted that the plaintiff’s grievances included multiple instances of alleged infringement dating back to 28 April 2023 when a Cease and Desist notice was first issued, followed by reminders, notices, replies, and an undertaking signed by one defendant in July 2024. Despite the undertaking, the plaintiff alleged that the defendants continued infringing activities and even offered products through third-party websites and directly through WhatsApp communication in December 2024.
The Court recorded the provisions of Order VII, Rule 11 CPC, which mandate rejection of a plaint if it is barred by any law. It also noted the provisions of Section 12A of the Commercial Courts Act requiring pre-institution mediation unless urgent interim relief is contemplated.
Justice Ajay Mohan Goel observed that “it is settled law that for the purpose of the adjudication of an application under Order VII, Rule 11 of the CPC, the Court has to restrict itself to the contents of the plaint as well as documents filed therewith to assess and ascertain as to whether the plaint is hit by the provisions of Order VII, Rule 11 of the CPC or not.” It was further stated that “the Court is not to delve into the defence of the other side to judge the credibility of the application. The merit of the application has to be assessed by the Court on the basis of the contents of the plaint itself.”
The Court noted that the plaintiff became aware of the alleged infringement in April 2023 and continued issuing notices thereafter. “If one closely peruses the averments made in the plaint, what is evident is the fact that the offending act of the defendants of purported infringement of the trademarks of the plaintiff, was in the knowledge of the plaintiff since 28.04.2023 onwards.” The Court recorded that there was no paradigm shift in the situation thereafter until the filing of the civil suit.
It was observed that “compliance of Section 12A of the Act is mandatory and it is the duty of the Courts to ensure the compliance of the said provision and also to ensure that in the garb of urgent relief, plaintiff does not circumvents the provisions of Section 12A of the Act.” The Court remarked that the application filed by the plaintiff for urgent relief was silent on what necessitated urgent intervention, despite the infringement being alleged continuously since April 2023.
Justice Goel cited the Supreme Court’s judgement in Patil Automation Private Limited v. Rakheja Engineers Private Limited which held that “Section 12-A of the Act is mandatory and hold that any suit instituted violating the mandate of Section 12-A must be visited with rejection of the plaint under Order 7 Rule 11.” The Court further referred to Yamini Manohar v. T.K.D. Keerthi, where the Supreme Court stated that “the prayer for urgent interim relief should not be a disguise or mask to wriggle out of and get over Section 12-A of the CC Act.” Reference was also made to Dhanbad Fuels Private Limited v. Union of India which reiterated that urgent interim relief must not be an unfounded excuse to bypass Section 12A.
Justice Goel recorded that in the present case, “as the suit filed is a Commercial Suit and Section 12A is a mandatory provision contained in the Commercial Courts Act, it ought to have been mentioned in the application as to what was the urgency, which was necessitating the filing of the application for urgent relief, at the stage, when the Suit was filed without resorting to pre-litigation mediation. The application is completely silent on this aspect of the matter.”
The Court concluded that “the situation at the time when the suit was filed, was not much different as from April, 2023 and there was no paradigm shift in the situation as from the month of April, 2023 or thereafter, till the filing of the Civil Suit qua the alleged infringement of the trademark and, therefore, the plaintiff ought to have had resorted to the pre-institution mediation in settlement.”
The High Court held that the plaint was filed in contravention of Section 12A of the Commercial Courts Act. Justice Goel directed: “In light of the above observations, as this Court is of the considered view that in the present case the Civil Suit was filed by the plaintiff without there being any occasion to do away with the pre-institution mediation in settlement as is provided under Section 12A of the Act, this application is allowed and the plaint is rejected, in light of the provisions of Order VII, Rule 11(d) of the Civil Procedure Code.” It was further ordered that “Costs easy. Pending miscellaneous application(s), if any, also stand disposed of accordingly.”
Advocates Representing the Parties:
For the Petitioners: M/s Guruswamy Natraj, Shradha Karol and Vaibhav Singh Chauhan, Advocates.
For the Respondents: Mr. Rajiv Jiwan, Senior Advocate with M/s Yug Singhal, Prashant Sharma and Aditi Sharma, Advocates, Mr. Praveen Chandel, Advocate.
Case Title: Zydus Wellness Products Ltd. v. Karnal Foods Pack Cluster Limited and others
Neutral Citation: 2025: HHC:29474
Case Number: OMP No. 644 of 2025 in COMS No.1 of 2025
Bench: Justice Ajay Mohan Goel
