Madras High Court
M/S. Bookmed Technologies Pvt. Ltd vs M/S.Sri Padman Biosciences Pvt. Ltd on 20 November, 2023
Author: Abdul Quddhose
Bench: Abdul Quddhose
A. No.4998 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.11.2023
CORAM:
THE HON'BLE MR. JUSTICE ABDUL QUDDHOSE
A. No.4998 of 2023
in
C.S. (COMM DIV.) No.198 of 2022
M/s. Bookmed Technologies Pvt. Ltd.
Represented by its Directors .. Applicant /
Defendant No.1
vs.
1. M/s.Sri Padman Biosciences Pvt. Ltd.,
Rep. by its Directors,
Mr.T.L. Narasimhan
Mr.T. Ramachandran
Having registered office at
AP-348, Ground Floor, 29th Street,
“I” Block,
Anna Nagar West,
Chennai – 600 040. ... Respondent No.1/
Plaintiff
2. Narasingarao Hindupur,
Director of Bookmed Technologies Pvt. Ltd.
No.1/26, I Floor,
No.3, Sri Gurukripa Arcade,
Royal Lakefront Residency,
1st Phase, J.P. Nagar, 8th Phase,
Bangalore – 560 076. ... Respondent No.2/
Defendant No.2
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A. No.4998 of 2023
3. Padma Narasinga Rao
Director of Bookmed Technologies Private Ltd.,
No.1/26, 1st Floor,
No.3, Sri Gurukripa Arcade,
Royal Lakefront Residency,
1st Phase,
J.P. Nagar,
8th Phase,
Bangalore – 560 076. .. Respondent No.2/
Defendant No.3
Prayer : Application filed under Order XIV, Rule 8 of the O.S. Rules
and Order VII Rule 11 of C.P.C.
For Applicant : Ms. Tanya Kapoor
For Respondent No.1 : Ms.Avinashwadhwani
ORDER
This application has been filed by the first defendant in the suit seeking for rejection of plaint under Order VII Rule 11 CPC. The application has been filed on the following grounds :-
a) Non joinder of necessary parties in the suit;
b) No cause of action as against the first defendant and
c) Section 12A of the Commercial Courts Act, 2015 has not been complied with by the first respondent / plaintiff before institution of the suit.
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2. The suit has been filed for recovery of money on the ground that the defendants have not paid the value of the goods supplied by the plaintiff. According to the plaintiff, the applicant/ first defendant placed orders with the plaintiff through its agent and based on the said orders, the plaintiff had sold and delivered goods to the applicant / first defendant which remains unpaid.
3. It is also the contention of the plaintiff as seen from the plaint that the second and third defendants who are the Directors of the first defendant have siphoned off the funds of the first defendant and unjustly enriched themselves and therefore they are also jointly and severally liable to pay the dues of the plaintiff along with the first defendant.
4. The following are the undisputed facts :
a) The suit was filed by the plaintiff before this court on 25.07.2022;
b) Leave to institute the suit under Clause 12 of the Letters Patent as against the defendants was obtained by the plaintiff by orders of this Court on 17.08.2022;
c) The suit was numbered by the Registry of this Court on 02.09.2022 as C.S. No.198 of 2022;
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d) After obtaining leave to institute the suit as against the defendants, the plaint was never returned by the Registry for any defects and since the suit was also filed without defects, the suit was numbered on 02.09.2022.
e) An application under Order 38 Rule 5 of the CPC was filed by the plaintiff along with the suit seeking for attachment of property owned by the defendants 2 and 3 and since the suit was also filed without defects, the suit was numbered on 02.09.2022.
5. According to the learned counsel for the plaintiff, the application under Order 38 Rule 5 CPC was subsequently withdrawn by the plaintiff since adequate averments were not made in the affidavit to satisfy the requirements of Order 38 Rule 5 of CPC. A judgment of the Hon'ble Supreme Court in the case of Raman Tech. & Process Engg. Co. and another vs. Solanki Traders reported in 2008 2 SCC 302, also makes it clear that the plaintiff to avail the benefit under Order 38 Rule 5, CPC need to show prima facie that its claim is bonafide and valid and also satisfy the Court that the defendant is about to remove or dispose of the whole or part of its property, with the intention of obstructing or https://www.mhc.tn.gov.in/judis 4/27 A. No.4998 of 2023 delaying the execution of any decree that may be passed against them.
6. M/s.PATIL Automation Private Ltd. and Ors versus Rakheja Engineers Private Ltd. .judgment rendered by the Hon'ble Supreme Court reported in 2022 10 SCC 1 makes compliance of Section 12A of the Commercial Courts Act, 2015, mandatory unless the suit contemplates an urgent interim relief. However, the said judgment makes it clear that it will become effective only from 20.08.2022 so that stake holders concerned become sufficiently informed.
7. According to the applicant / first defendant as seen from the affidavit filed in support of this application, the plaintiff has not complied with the mandatory requirement of Section 12A of the Commercial Courts Act, 2015 by not going for pre-suit mediation before instituting the suit. It is also their case that no averment has also been made in the plaint disclosing that the suit contemplates an urgent interim relief which is a pre-requisite for getting exemption from filing a Commercial Suit without going for pre-suit mediation.
8. It is also contended by the learned counsel for the applicant / https://www.mhc.tn.gov.in/judis 5/27 A. No.4998 of 2023 first defendant that the suit came to be instituted only on 02.09.2022 since the suit was registered and numbered by the Registry only on that date. Hence according to her since the cut off date has been fixed by the Hon'ble Supreme Court as 20.08.2022, the institution of the present suit on 02.09.2022 without going for pre-suit mediation is not maintainable and the plaint has to be rejected under Order VII Rule 11 CPC for not adhering to the mandatory statutory requirement of pre-suit mediation as stipulated under Section 12A of the Commercial Courts Act. In support of the applicant / first defendant's contention, the learned counsel for the applicant / first defendant drew the attention of this Court to the judgment of the Hon'ble Supreme Court rendered in M/s.PATIL Automation case referred to supra and she relied upon various paragraphs contained therein. In particular, she drew the attention of this Court from paragraph Nos.94 to 98 of the said judgment.
9. According to her since the plaintiff has withdrawn the application seeking for attachment of the properties owned by the defendants 2 and 3 under Order 38 Rule 5 CPC and there was no urgent interim relief contemplated and the suit came to be instituted only on 02.09.2022 when the suit was registered and numbered, the ratio laid https://www.mhc.tn.gov.in/judis 6/27 A. No.4998 of 2023 down by the Hon'ble Supreme Court in M/s.PATIL Automation case referred to supra, squarely gets attracted. Hence, she would submit that since the plaintiff has not adhered to the mandatory statutory requirement of Section 12A of the Commercial Courts Act, 2015, the plaint has to be rejected under Order VII Rule 11 CPC. She would further submit that the Hon'ble Supreme Court in M/s.PATIL Automation case has made it clear that presentation of the plaint will not amount to institution of suit for the purpose of Order 4 Rule 1 CPC and Section 12A of the Commercial Courts Act, 2015.
10. The learned counsel for the applicant / first defendant also drew the attention of this Court to various paragraphs in the plaint and would submit that even according to the plaintiff as seen from the plaint averments, the goods were meant for a third party and not to the applicant / first defendant. It is further contended that the plaintiff have themselves admitted that the orders were placed on the plaintiff through an agent of the first defendant and therefore according to her the first defendant is not liable to pay the suit claim. Hence, according to her, there is no cause of action as against the defendants for filing the suit.
11. It is also her case that since the plaintiff, as seen from the https://www.mhc.tn.gov.in/judis 7/27 A. No.4998 of 2023 plaint averments have themselves disclosed that the goods were delivered to a third party and not to the first defendant, there is no cause of action for filing the suit against the defendants . Hence, according to her, the plaint has to be rejected under Order VII Rule 11 CPC for non joinder of the third party, who is a necessary party. Apart from the M/s.PATIL Automation case referred to supra, the learned counsel for the applicant / first defendant drew the attention of this Court to a recent decision of the Hon'ble Supreme Court in the case of Yamini Manohar vs. T.K.D. Keerthi reported in 2023 SCC Online SC 1382 which has followed M/s.PATIL Automation case, but has given more clarity with regard to certain issues.
12. The learned counsel for the applicant/ first defendant in particular referred to paragraph No.10 in Yamini Manohar's case and would submit that camouflage and guise to bypass the statutory mandate of pre-litigation mediation should be checked when deception and falsity is apparent or established. She would submit that since the plaintiff in the plaint averments has not stated anything about Section 12A of the Commercial Courts Act, which is a pre requisite for institution of a Commercial Suit, the dictum laid down by the Hon'ble Supreme Court in https://www.mhc.tn.gov.in/judis 8/27 A. No.4998 of 2023 Yamini's case referred to supra has also not been adhered to.
13. However, on the contrary, the learned counsel for the first respondent / plaintiff would submit that there is no ground for rejection of plaint as contended by the learned counsel for the applicant / first defendant. To support the plaintiff's contentions, he would submit as follows :-
a) The judgment of the Hon'ble Supreme Court in M/s.PATIL Automation case makes it clear that Section 12A of the Commercial Courts Act, 2015 becomes mandatory only with effect from 20.08.2022 so that stakeholders concerned become sufficiently informed.
b) On the date of filing of the suit i.e., on 25.07.2022, it was not mandatory to adhere to Section 12A of the Commercial Courts Act.
c) Even on 17.08.2022, when the plaintiff obtained Leave to sue the defendants under Clause 12 of the Letters Patent, Section 12A of the Commercial Courts Act, did not become mandatory as it became mandatory only with effect from 20.08.2022 as per M/s.PATIL Automation decisions.
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d) The plaint was a proper presentation not returned by the Registry for any defects after the plaintiff obtained leave to sue by orders of this court on 17.08.2022 and the suit was numbered on 02.09.2022. Infact M/s.PATIL Automation judgment rendered by the Hon'ble Supreme Court was rendered on the same date when the plaintiff obtained leave to institute the suit as against the defendants i.e., on 17.08.2022.
e) For no fault of the plaintiff, the plaintiff cannot be anti-suited.
f) Before instituting the present suit, the plaintiff had issued a legal notice dated 06.02.2022 to the defendants calling upon them to pay the outstanding dues. The defendants have also replied to the same, through their lawyer on 04.03.2022 by denying their liability. In view of the absolute denial of liability, pre-suit mediation will be an exercise in futility.
g. A decision of the Delhi High Court in the case of BOLT Technology OU vs. Ujoy Technology Private Ltd. and https://www.mhc.tn.gov.in/judis 10/27 A. No.4998 of 2023 another reported in 2022 5 High Court Cases (Del) 347 has also been relied upon for the proposition that when the defendants have absolutely denied the plaintiff's liability in their reply, pre-suit to mediation is an exercise in futility and hence, Section 12A compliance is not mandatory for the plaintiff's suit
h) As per Order 3 Rule 1 of the Madras High Court Original Side Rules, the suit gets instituted only when an application for leave to sue is ordered.
i) As per Order IV of the Madras High Court Original Side Rules only after the Registrar admits the plaint, the Court shall issue the summons to the defendant to appear and therefore when the plaint has been validly presented on 25.07.2022 itself and has not been returned by the Registry for any defects just because the Registrar had admitted the plaint only on 02.09.2022, it cannot be said that the suit was instituted only on 02.09.2022.
j) The plaintiff had filed an application under Order 38 Rule 5 CPC seeking for attachment of the properties owned https://www.mhc.tn.gov.in/judis 11/27 A. No.4998 of 2023 by the defendants 2 and 3. However, only in view of the fact that adequate averments satisfying the requirements as contemplated in the judgement of the Hon'ble Supreme Court in the case of Raman Tech. & Process Engg. Co. and another vs. Solanki Traders reported in 2008 2 SCC 302, were not made, the plaintiff had to withdraw the said application.
k) Adequate averments have been made in the plaint for lifting the corporate veil of the first defendant and for this argument, he drew the attention of this Court to the relevant paragraphs in the plaint.
l) Since the application has been filed only by the first defendant seeking for rejection of plaint, the first defendant cannot plead for the second and third defendants which will go to show that all the defendants are jointly and severally liable to pay the suit claim.
m) Non joinder of necessary parties is not a ground available for rejection of plaint under Order VII Rule 11 CPC. https://www.mhc.tn.gov.in/judis 12/27 A. No.4998 of 2023 Discussion :
14. Order VII Rule 11 of the Code of Civil Procedure deals with rejection of plaint. It is an independent and special remedy where a Court is empowered to summarily dismiss a suit at the threshold, without recording evidence or conducting a trial. Some of the grounds, based on which, a plaint can inter alia be rejected are where the plaint (a) discloses no cause of action; (b) is barred by any law; (c) has been undervalued; and (d) is written upon paper insufficiently stamped. The objective of this drastic power provided under Order VII Rule 11 is to ensure that judicial time is not wasted on meaningless litigations. The jurisprudence and the scope of Order VII Rule 11 is now fairly settled.
Some of the important principles as enunciated by the Hon'ble Supreme Court through its various decisions are summarized below:
a)An application for rejection of plaint can be entertained at any stage of the suit, i.e., before registering the plaint or after issuing summons to the defendant or at any time before the conclusion of the trial;
b)Once an application filed under Order VII Rule 11 is allowed, the plaint stands rejected and hence, the question of https://www.mhc.tn.gov.in/judis 13/27 A. No.4998 of 2023 presenting the same plaint before the appropriate Court does not arise. The only remedy is to file a fresh plaint within the parameters of Order VII Rule 13;
c)While deciding an application under Order VII Rule 11, the Court must only look at the facts and averments made in the plaint. The pleas taken by the defendant are irrelevant and not material;
d)The Court must have a meaningful and not a formal reading of the plaint and if it is manifestly vexatious and meritless i.e., it does not disclose any clear right to sue, the plaint must be rejected. The Court must be wary of clever drafting which creates the illusion of a cause of action;
e)The provision of Order VII Rule XI is mandatory in nature. It states that the plaint shall be rejected if any of the grounds specified in clauses (a) to (e) are made out. If the Court finds that the plaint does not disclose a cause of action or that the suit is barred by any law, the Court has no option, but to reject the plaint;
f)The Court, at the time of dealing with an application https://www.mhc.tn.gov.in/judis 14/27 A. No.4998 of 2023 under Order VII Rule 11, would not consider any evidence or enter into disputed questions of fact or law;
g)A plaint, which does not contemplate any urgent interim relief and is instituted, without following the mandatory pre-institution mediation as per the provisions of Section 12-A of the Commercial Courts Act, 2015, must be rejected under Order VII Rule 11. This power can be exercised even suo moto by the Court.
15. The question that arises for consideration in this application is whether the applicant/first defendant has satisfied any of the aforesaid requirements for rejecting the plaint under Order VII Rule 11 C.P.C. The applicant/first defendant, for the purpose of rejecting the plaint, has raised the following contentions:
a)The plaint filed in C.S. (Comm.Div.) No.198 of 2022 does not contemplate any urgent interim relief and has been instituted without going for the mandatory pre-institution mediation as per the provisions of Section 12A of the Commercial Courts Act, 2015;
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b)The plaintiff, being aware that the beneficiary of the goods is a third party, ought to have made the third party as a defendant to the suit and hence, the plaint has to be rejected for non-joinder of necessary party;
c)There is no cause of action for filing the suit against the applicant/first defendant as they are not the beneficiaries of the goods sold and delivered by the plaintiff even as per the plaint averments.
16. It is settled law that while deciding an application under Order VII Rule 11 of C.P.C. seeking for rejection of plaint, the Court must only look at the facts and averments made in the plaint. The pleas taken by the defendants are irrelevant and not material.
17. Let us now see the averments made in the plaint with regard to the cause of action for instituting the suit against the applicant/first defendant. The relevant paragraphs pertaining to the cause of action for instituting the suit against the applicant/first defendant as found in the plaint are reproduced hereunder :
https://www.mhc.tn.gov.in/judis 16/27 A. No.4998 of 2023 "2.The Plaintiff states that the first defendant company is a customer of the Plaintiff. The purchase orders of the first defendant are placed through Mr.H.N.Uday Simha, its consultant. The arrangement, viz., the purchase orders being placed by Mr.H.N.Uday Simha, dispatch of goods through a carrier arranged by the first defendant and payment by the first defendant has been in vogue since the business relationship commenced.
....
7.Similarly, on 12.08.2021, 23.08.2021, 25.08.2021 and 02.09.2021, the first defendant, through its consultant, placed orders for supply of 1,000 nos. of Prevenar 13 on each occasion. The same delivery partner and delivery vehicle was assigned for dispatch of the goods. All the invoices were raised in the name of the 1 defendant. The GSTN number, GST No. 29AAICB7134P1Z1 of the 1st defendant was provided to the plaintiff for billing purposes. The goods were dispatched as per instructions of the first defendant company to the concerned delivery person after obtaining a similar endorsement on the corresponding invoices. The particulars of date of supply of Prevenar 13 on various dates along with corresponding invoices and amounts due to be paid by the defendants are tabulated hereunder:
S. Nos. Date Invoice Amount
Nos.
1 12.08.2021 A1328/21-22 Rs.30,01,986.00/-
2 23.08.2021 A1438/21-22 Rs.30,04,128.00/-
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S. Nos. Date Invoice Amount
Nos.
3 25.08.2021 A1465/21-22 Rs.24,03,302.00/-
4 02.09.2021 A1531/21-22 Rs.36,04,954.00/-
8.The plaintiff states that a perusal of the GST returns would indicate that input tax credit towards the supply was claimed by the defendant. The first defendant had also issued cheques towards payment of amounts due under the respective invoices. The cheques were issued in the name of the Plaintiff company. The cheques were signed by the third defendant, drawn in favour of the plaintiff at with Indian Bank, J.P. Nagar, 9 Phase, Bengaluru. Needless to state, at no point of time did the first defendant dispute the order placed or the delivery made. It had confirmed the receipt of the goods and also issued cheques against the invoices raised. As stated, the input tax credit was also claimed Further, on receipt of goods, Mr. Simha would intimate the plaintiff that the cheque(s) for the corresponding invoice had been sent through courier.
9.On one occasion, the first defendant had issued cheques dated 18.09.2021 and 19.09.2021. The Plaintiff was requested not to present the cheques issued with the assurance that the payment would be made either through RTGS or adjusted in future payments. Shockingly, the cheques issued for other consignments were https://www.mhc.tn.gov.in/judis 18/27 A. No.4998 of 2023 dishonored. While the cheque dated 03.09.2021 was returned with an endorsement funds insufficient', the remaining cheques were returned with an endorsement that 'Payment was stopped by drawer'. No intimation was given to the Plaintiff prior to such instructions being issued by the bank. Needless to state, the first defendant did not raise a dispute at any point of time as it was aware the goods had been received.
......
14.It is pertinent to note that the purchase made by the first defendant from the plaintiff has been accounted for in the GST returns filed by the defendants. In fact, considering the purchase made by the defendants from the plaintiff, the first defendant had in turn sold the goods to one M/s.Plas Pharma and further availed input tax credit for the purchase made.
......
16.The Plaintiff states that on 07.10.2021, the first defendant forwarded a letter to one M/s. Plas Pharma wherein the first defendant had admitted that goods supplied originated from the plaintiff and also admitted the dues owed to the plaintiff by the first defendant. The first defendant in the letter has also admitted that cheques issued by the first defendant in favour of the plaintiff for the suit transaction have been dishonored. The letter is in possession of the first defendant and the first defendant must be called upon to https://www.mhc.tn.gov.in/judis 19/27 A. No.4998 of 2023 produce it. Needless to state, the letter amounts to acknowledgment of debt by the defendants. It confirms that the stand of the first defendant of 'non-receipt of goods' or 'denial of purchase' for a defense is false and frivolous. On the contra, it speaks to deceitful and devious nature of the defendants.
.....
19.The cause of action for filing the present suit arose on 05.08.2021 when the defendants placed the order with the plaintiff on 12.08.2021, 23.08.2021, 25.08.2021, 02.09.2021 when the plaintiff had raised invoices for the goods supplied to the defendants on 03.09.2021, 15.09.2021, 18.09.2022, 19.09.2022, 26.09.2021, 27.09.2021 when the defendants had issued cheques to the plaintiff; on 07.10.2021 when the defendants acknowledged the debt owed to the plaintiff in their communication to one M/s.Plas Pharma; on 24.12.2021 when the plaintiff sent a demand letter to the defendants; on 27.12.2021 when delivery receipt signifying proof of delivery of the letter to the defendant was issued; on 06.02.2022 when the plaintiff had issued lawyer's notice to the defendants demanding payment; on 10.02.2022 when the defendants had acknowledged the notice; on 04.03.2022 when the defendants had issued a reply notice and on various other dates within the jurisdiction of this Court and the cause of action for suing the defendants arose within the jurisdiction of this Court. https://www.mhc.tn.gov.in/judis 20/27 A. No.4998 of 2023
18. As seen from the aforementioned paragraphs contained in the plaint, the purchase orders were placed on the plaintiff for the supply of goods by the first defendant through its consultant and the said practice was in vogue ever since the business relationship commenced between the plaintiff and the first defendant. The invoices are also raised by the plaintiff only on the first defendant. The first and third defendants have also issued cheques towards part payment for the goods sold and delivered by the plaintiff. The details of the dishonored cheques issued by the defendants have also been disclosed in the plaint. Therefore, it cannot be said that there is no cause of action against the defendants for filing the suit though the defendants may contend that the actual beneficiary of the goods is a third party, namely, M/s.Plas Pharma and that they would have to make the payment. It is a triable issue, which cannot be adjudicated in a rejection of plaint application. Infact, as seen from the plaint averment in paragraph 14, a categorical assertion has been made by the plaintiff that the defendants had purchased the goods from the plaintiff and the first defendant had in turn sold the goods to one M/s.Plas Pharma. While that be so, at this stage, without going for trial, the first defendant/applicant cannot seek for rejection of plaint https://www.mhc.tn.gov.in/judis 21/27 A. No.4998 of 2023 under Order VII Rule XI of C.P.C. on the ground that there is no cause of action against the defendants.
19. It is also seen from the plaint averments that a categorical assertion has been made that the first defendant has placed orders with the plaintiff for the purchase of goods, who in turn had sold the goods to one M/s.Plas Pharma. Invoices were also raised by the plaintiff only in favour of the first defendant and not in favour of M/s.Plas Pharma. Therefore on a prima facie consideration, this Court is of the considered view that there is no necessity to join M/s.Plas Pharma or any other 3rd party as a party defendant in the suit. Further, Order VII Rule 11 CPC enumerates the grounds on which a plaint can be rejected. Non joinder of necessary parties is not a ground mentioned in Order VII Rule 11 CPC for rejection of plaint.
20. Insofar as the non adherence to pre-suit mediation as mandated under Section 12A of the Commercial Courts Act, 2015 is concerned, this Court is of the considered view, non adherence to the same by the plaintiff will not result in rejection of plaint under Order VII Rule 11 CPC for the following reasons :-
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a) M/s.PATIL Automation decision rendered by the Hon'ble Supreme Court makes it clear that adherence to Section 12A of the Commercial Courts Act, 2015, becomes mandatory only with effect from 20.08.2022 so that stakeholders concerned become sufficiently informed.
b) On the date of filing of this suit i.e., on 25.07.2022, it was not made mandatory to adhere to pre-suit mediation as per the provisions of Section 12A of the Commercial Courts Act, 2015.
c) Even on 17.08.2022, when the plaintiff obtained leave to sue the defendants under Clause 12 of the Letters Patent, Section 12A of the Commercial Courts Act was not made mandatory as it became mandatory only with effect from 20.08.2022 as per the decision rendered by the Hon'ble Supreme Court in M/s.PATIL Automation's case
d) As per Order IV of the Madras High Court Original Side Rules, a suit shall be instituted by presenting to the Registrar a plaint in Form No.5 of Appendix-II. After admission of the plaint, the Registrar or other Officer of the https://www.mhc.tn.gov.in/judis 23/27 A. No.4998 of 2023 Court shall issue summons to the defendant to appear. The plaint was properly presented on 25.07.2022 and was not returned by the Registry for any defects, even after the plaintiff obtained leave to sue the defendants by orders of this Court on 17.08.2022 and the suit was numbered on 02.09.2022. Infact M/s.PATIL Automation's judgement rendered by the Hon'ble Supreme Court was rendered on the same date when the plaintiff obtained leave to institute the suit against the defendants i.e., on 17.08.2022.
e) For no fault of the plaintiff, the plaintiff cannot be anti-suited.
f) Adequate averments have also been made in the plaint for making the defendants 2 and 3 also jointly and severally liable to pay the suit claim. The plaintiff has contended that the defendants 2 and 3 who are the Directors of the first defendant Company have siphoned off the funds of the first defendant Company for unjustly enriching themselves.
g) Along with the suit, an application seeking for attachment of properties owned by the defendants 2 and 3 was https://www.mhc.tn.gov.in/judis 24/27 A. No.4998 of 2023 also filed by the plaintiff as per the provisions of Order 38 Rule 5 of CPC though the said application was subsequently withdrawn for which sufficient explanation has also been given by the learned counsel for the plaintiff by stating that in view of the judgement rendered by the Hon'ble Supreme Court in the case of Raman Tech. & Process Engg. Co. and another vs. Solanki Traders reported in 2008 2 SCC 302, the applicant /plaintiff had to withdraw the Order 38 Rule 5 application since adequate averments have not made in the affidavit filed in support of the said application.
h) There was no necessity for the plaintiff to make a specific averment in the plaint for not adhering to the provisions of Section 12A of the Commercial Courts Act, 2015, since on the date of the filing of the suit i.e., on 25.07.2022, the adherence to pre-suit mediation was not mandatory and it become mandatory only with effect from 22.08.2023 pursuant to the judgment rendered by the Hon'ble Supreme Court in M/s.PATIL Automation's case. https://www.mhc.tn.gov.in/judis 25/27 A. No.4998 of 2023
i) Non-joinder of necessary parties is also not a ground available for rejection of plaint under Order VII Rule 11 CPC
21. For the foregoing reasons, the first defendant has not satisfied the requirements of Order 7 Rule 11 CPC for rejection of plaint as the contentions raised by them are triable issues, which can be adjudicated only after trial in the main suit.
22. In the result, there is no merit in this application. Accordingly, this application is dismissed.
20.11.2023 Index: Yes/ No Speaking order / Non speaking order Neutral citation : Yes / No vsi2 https://www.mhc.tn.gov.in/judis 26/27 A. No.4998 of 2023 ABDUL QUDDHOSE, J.
vsi2 A. No.4998 of 2023 in C.S. (COMM DIV.) No.198 of 2022 20.11.2023 https://www.mhc.tn.gov.in/judis 27/27