Urgent Interim Relief Under Section 12 A (1) Of Commercial Courts Act, 2015,- A Camouflage Or Reality
Clearing the mist of controversy among the courts of our nation, the Hon’ble Supreme Court of India in a landmark Judgement of M/s Patil Automation Private Limited Vs. Rakheja Engineers Private Limited laid down that pre institution mediation in commercial matters is mandatory for the parties before approaching the commercial courts. However, in Patil Automation, the Hon’ble Apex...
Clearing the mist of controversy among the courts of our nation, the Hon’ble Supreme Court of India in a landmark Judgement of M/s Patil Automation Private Limited Vs. Rakheja Engineers Private Limited laid down that pre institution mediation in commercial matters is mandatory for the parties before approaching the commercial courts. However, in Patil Automation, the Hon’ble Apex Court did not “dwell upon” the cases which contemplate “urgent Interim relief”. Therefore, the question arose that where the Plaintiff is seeking urgent interim relief, are they permitted to approach the courts without following the protocol of pre-institution mediation. Section 12-A(1) of Commercial Courts Act, 2015, clearly provides the exception as per which Plaintiff in a suit contemplating urgent interim relief can straightaway approach the court without resorting to pre institution mediation and there is no conundrum about it. However, it is to be noted that not merely the interim relief but only “URGENT INTERIM RELIEF” qualify a suit to wriggle out of the rigours of 12-A(1). But the question arises as to what contemplates Urgent Interim Relief and can a mere plea of urgent interim relief qualify the Plaintiff to bypass the statutory mediation under section 12-A(1) or does a party really needs to show the “urgency”.
The Hon’ble Supreme Court therefore, once again came to our rescue and held in Yamini Manohar Vs. TKD Keerthi that the Plaintiff has no absolute choice and “right to paralyze section 12 A of Commercial Courts Act, 2015 by making a prayer for urgent interim relief”. The Hon’ble Court stated that “Camouflage and guise to bypass the statutory mandate of pre-litigation mediation should be checked when deception and falsity is apparent or established”. The Hon’ble Apex Court went a step ahead and solved the mystery of contemplation of Urgent interim relief and held that “The words ‘contemplate any urgent interim relief’ in Section 12A(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 12A of the CC Act is not defeated”.
In case of K. Varathan Vs. Mr. Prakash Babu Nakundhi Reddy h/, the Hon’ble High Court of Madras, has also examined the meaning of four terms i.e. (a) contemplate (b) urgent (c) interim and (d) relief. The Hon’ble Court observed that all these four terms have neither defined in Commercial Courts Act, 2015, nor in General Clauses Act, 1897. The Hon’ble Court while explaining the expression “contemplation of urgent interim relief” laid down following parameters/ test with regard thereto:
(a) whether the prayer for interim relief is a product of profound thinking carefully about the possibility of the happening;
(b)whether the matter demands prompt action and that promptitude is of such nature that exhausting the remedy of pre institution mediation without any intervention in the mean time can lead to a irreversible situation, i.e., a situation where one cannot put the clock back;
(c)where the urgency is of plaintiff's own doing, if that be so the plaintiff cannot take advantage of its own doing;
(d)high standard is required to establish the requirement of this prompt action (urgency);
(e)plaintiff should be on fair ground in urging urgency and an interim measure;
(f)actual or apprehended wrong or injury should be so imminent that the plaintiff should be able to satisfy the court that plaintiff should not be made to stand and suffer the same.
However, the Hon’ble court also made clear that the above adumbration is illustrative and not exhaustive in nature.
The Hon’ble High Court of Delhi in VijayMahajan Vs. Parvesh Kumar Gupta, held that while undertaking the exercise of coming to the conclusion whether urgent interim relief sought by the Plaintiff is merely an artificial device to avoid the rigour of section 12-A(1), the Court is required “to be mindful of the fact that of the circumstances in which the plaint is instituted by the plaintiff. Unless it is clear that no case for seeking urgent interim relief existed, and that the interim relief, if sought, was not urgent or that, if it was pleaded to be urgent, such plea was artificial, the Court would ordinarily have to defer to the right of the plaintiff to assess whether the interim relief sought was, or was not, urgent”.
The Hon’ble High Court of Delhi in Bolt Technology Vs. Ujoy Technology Private Limited & Anr. , took the view that Section 12-A gets obliterated since the Plaintiff had issued a cease and desist notice to the Defendant upon coming to know about the infringement and therefore, it would serve no purpose if the Plaintiff would have resorted the recourse of Section 12-A, whereas the Hon’ble High Court of Madras in Mohamed Aboobacker ChankLungi Pvt. Ltd. v. Revathy Textiles , refused to consider that “similar alleged infringers” would have vanished, in case the Plaintiff had invoked pre-litigation mediation, as a ground seeking urgent interim relief.
Since section 12-A(1) only talks about the “contemplation of urgent interim relief” without defining the same therefore, what qualifies an urgent interim relief is purely a question, the answer of which hides in the pleadings of the application seeking said relief but undisputedly the ultimate authority to scrutinize the expression lies with “Hon’ble Courts” of commercial division.
The author is an Advocate practicing at Delhi .Views are personal.