Pre-Suit Mediation Exemption In Refiled Commercial Suit Must Be Assessed Independently Of Orders In Earlier Non-Commercial Suits: Calcutta High Court

Holding that earlier interim orders, prima facie findings and the defendants’ written statement in the non-commercial suit cannot determine that assessment, the Court dispensed with mediation under Section 12A of the Commercial Courts Act, 2015 and admitted a plaint, subject to departmental scrutiny.

The Court was hearing a plaintiff company’s request, at the stage of presenting a commercial plaint, to dispense with pre-institution mediation under Section 12A of the Commercial Courts Act, 2015. The company had refiled its claim after the non-commercial division returned the plaint upon finding the dispute commercial in nature.

A Bench of Justice Aniruddha Roy observed: “In the facts and circumstances of the instant case, the plaintiff had previously filed a suit in a non-commercial division. The non-commercial division having found the suit to be commercial in nature, had returned the plaint and the instant plaint had been filed in the commercial division. Thus, the instant suit being a commercial suit, the adjudication thereof will have to be and should be governed under the provisions of C.C. Act. The contemplation for an immediate interim relief will have to be seen and considered on the basis of the statements made in the plaint and the documents annexed to the plaint. Once the plaint is returned from the non-commercial division and has been filed before the commercial division, whatever order those had been passed in the non-commercial division would not have any bearing or material bearing in the instant suit, which is a commercial suit.”

The Bench further observed: “Therefore, the ad interim order or the interim order passed in the previous non-commercial suit or the prima facie case that led the non-commercial Court to pass such interim order and to continue with the same or the stand taken by the defendants in the written statement filed in the non-commercial suit would have no effect whatsoever to ascertain the contemplation of the plaintiff for an urgent interim relief in the instant suit. The plaint filed in the commercial division will have to be independently read by the commercial court strictly in the light of the provisions laid down under C.C. Act only without carrying any impression whatsoever in the mind with regard to what had happened when the previous suit was filed in the non-commercial division, notwithstanding whatever interim order was passed by the non-commercial court or the stand taken by the defendants in their written statement filed in the non-commercial suit.”

Advocate Chayan Gupta appeared for the plaintiff.

Background

The plaintiff placed three purchase orders for electronic goods. According to its case, the defendants supplied goods against the first two orders but failed to fulfil the third. The plaintiff claimed that about Rs.2.04 crore had been paid for goods it did not receive and that security cheques issued by the defendants were dishonoured when presented.

It initially brought a recovery suit in the non-commercial division. An interim order directed the defendants to maintain a specified bank balance and disclose their assets, properties, bank accounts and receivables. That protection was extended before the plaint was eventually returned for institution in the Commercial Division.

Seeking dispensation from mediation in the refiled suit, the plaintiff relied on the earlier interim protection, an email allegedly acknowledging liability, the dishonoured cheques and pending criminal cases against the defendants. It also referred to the defendants’ written statement in the earlier suit.

The plaintiff apprehended that the defendants would dissipate their assets during mediation, leaving any eventual decree incapable of satisfaction. It submitted that the Court needed to examine whether urgent interim relief was genuinely contemplated, rather than whether such relief would ultimately be granted.

Court’s Observations

The Court held that the refiled commercial suit had to be governed by the Commercial Courts Act, 2015. It emphasised the mandatory character of Section 12A, while subsequently examining whether the plaintiff fell within the exception for suits contemplating urgent interim relief.

The Court observed: “At the outset, the fundamental rule of law in a commercial suit is that once a suit has been registered as a commercial suit, the same is governed under the provisions of the C.C. Act and the relevant rules framed thereunder. The provisions laid down under C.C. Act including Section 12A of the Act are mandatory in nature and in absence of compliance of such provision including Section 12A of C.C. Act, the plaint should be rejected being barred by law.”

Referring to J K Engineering Private Limited v. Ane Industries Private Limited (2026), the Court considered Section 12A of the Commercial Courts Act, 2015 together with Rule 8 of the Calcutta High Court’s Practice Directions, 2021. The cited decision explained the requirement of prior leave for institution without mediation and the power to return the plaint where the Court is not satisfied that urgent relief justifies dispensation.

The Court reproduced the earlier decision’s reasoning: “On harmonious reading of Section 12A with Rule 8 of the Practice Directions, 2021, makes it clear that from the statements made in the plaint and on the basis of the submissions made on behalf of the plaintiff, if the Court is satisfied that the contemplation of the plaintiff is there for any urgent interim relief, the Court has ample authority and discretion to dispense with the formality required for pre-institution mediation and the Court is empowered to receive the plaint, try and determine the suit. The Court must arrive at its satisfaction with the case made out in the plaint and then shall use its power and discretion judiciously.”

The Court also referred, through that decision, to Yamini Manohar v. T.K.D. Keerthi (reported in 2024) and Dhanbad Fuels Private Limited v. Union of India (2025). The cited principles require a holistic assessment of the subject matter, cause of action and interim prayer from the plaintiff’s standpoint. Actual success on the interim prayer is not the test, but a request disguising an attempt to avoid mandatory mediation does not suffice.

The Court explained that the discretion under Section 12A of the Commercial Courts Act, 2015 requires examination of the particular plaint rather than application of an automatic rule.

The Court observed: “It is equally true that the assessment for contemplation for urgent interim relief from the stand point of the plaintiff by the Court would also depend and shall vary from facts to facts of each case. It is the perception of the Court on the basis of a particular plaint and there cannot and shall not be any straight-jacket or any thumb rule formula. With the application of mind and after arriving at a satisfaction of mind, a commercial court would have the discretion to allow the prayer for dispensation for pre-institution mediation or to reject it.”

Applying the Section 12A test under the Commercial Courts Act, 2015, the Court found that the plaint contemplated urgent interim relief to protect the alleged claim. It considered the specified pending criminal proceedings, dishonoured security cheques and email allegedly admitting liability. The Court referred to the alleged defaults, fraud and admission of liability as circumstances disclosed in the plaint.

The Court observed: “Some relevant facts as stated in the plaint are, inter alia, that several criminal proceedings have already been pending where the criminal trials are awaited. Plaintiff has made out a specific case that the defendants are allegedly habitual defaulter in the commercial market and defendants have allegedly defrauded various creditors.”

Conclusion

The High Court dispensed with pre-institution mediation under Section 12A of the Commercial Courts Act, 2015. It also granted leave under Clause 12 of the Letters Patent, 1865 and Order II Rule 2 of the Code of Civil Procedure, 1908. The plaint was admitted, subject to departmental scrutiny.

Cause Title: Amoga Globex Private Limited v. S K Gupta and Sons & Another

Appearances

Plaintiff: Advocates Chayan Gupta, Darshana Sett, Tanay Agarwal, Priyanka Agarwal and Arpita Dey

Defendants: Appearances not recorded in the supplied judgment

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