Madhya Pradesh High Court
Gsd Constructions Pvt. Ltd. Through ... vs Balaji Febtech Engineering Pvt. Ltd. on 7 August, 2019
THE HIGH COURT OF MADHYA PRADESH
MA No. 4081/2019
Indore dated:07/08/2019
Parties through their counsel.
The appellants before this court has filed present Misc.
Appeal being aggrieved by order dated 22/07/2019 passed by
Commercial Court, Indore in RCBS No. 266/2019.
The facts of the case reveal that the present appellants have
filed a civil suit for declaration, recovery of money and for grant
of injunction and they have also moved applications under
Sections under Order 7 Rule 1 of the Code of Civil Procedure,
1908 and under Order 39 Rule 1 and 2 read with Section 151 of
the Code of Civil Procedure, 1908.
Learned Judge Commercial Court passed the impugned order ,
taking into account the provisions of Section 12A(1) of the commercial
Courts, Commercial Division and Commercial Appellate Division of
High Courts Act and has returned the suit by directing the plaintiffs to
approach the authority as per Provisions of Section 12A(1) of the Act for
exhausting the remedy of pre-institution mediation.
Learned counsel for the appellants argued before this Court that
there is great urgency in the matter and in those circumstances, the
appellants have filed an application under Order 39 Rule 1 and 2
read with Section 151 of the Code of Civil Procedure, 1908 and it
is not mandatory for the plaintiffs to approach for mediation or to
avail pre-institution remedies. Learned counsel for the appellants
have placed heavy reliance in para Nos.2, 5, 6 and 7 of the
judgment delivered by Madras High Court in the case of
Sathyam Wood Industries Vs. Adoniss (P) Ltd. & Ors., dated
10/06/2019 passed in C.R. P.(MD) No. 804/2019.
Paragraph Nos. 2,5, 6 and 7 of the aforesaid judgment reads
as under:-
"2. The learned counsel for the
petitioner/plaintiff would submit that the
petitioner/plaintiff is the timber merchant doing
business in Trichy. The petitioner purchased
wooden logs from the first respondent. The logs
were loaded from santo Port in Brazil and discharged the Tuticorin Port. The shipment arrived at Tuticorin Port on 09/02/2019. Due to continuous delay with regard to detention and liner charges, the petitioner/plaintiff did not take delivery of the goods. Even after the payment by the plaintiff, the cargo is not yet released. The goods imported is damaged due to the delay and the petitioner/plaintiff filed a suit seeking to direct the respondents/defendants to pay Rs.6,00,000/- to the plaintiff for the delayed delivery and also consequential injunction against the respondents/defendants not to collect any further claim from the petitioner/plaintiff. The petitioner/plaintiff. Also filed an interlocutory application under Order, Rule 1 and 2 of CPC seeking interim mandatory order directing the second respondent to issue the delivery order. But, the court below, without numbering the plaint, has erroneously returned the plaint.
5. Section 12 A of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2015, reads as follows:
"12A.-Pre-Institution Mediation and Settlement (1) A Suit, which does not contemplate any 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.........."
6. The petitioner/plaintiff filed the suit for damages and also for consequential injunction. The petitioner/plaintiff also filed an interlocutory application seeking delivery of goods. It is seen from the plaint that the shipment was arrived at Tuticorin Port on 09/02/2019 and the goods are lying in the port for the past four months. The petitioner would state that the delay will cause irreparable loss to the petitioner/plaintiff apart from the damages to the goods. Therefore, the petitioner/plaintiff has made out a case that there is an urgency for interim relief.
7. In view of the above, this Court, without adverting to the merits of the case, is inclined to direct the learned District Judge, Tuticorin, to number the plaint, consider the interim application if there is any real urgency in the matter and decide the same on merits and in accordance with law and if necessary refer the parties for mediation."
This Court has carefully gone through the aforesaid judgment.
The appellant case is that he is running against time and his application filed under Order 39 Rule 1 and 2 of the CPC, 1908 deserves to be heard at an early date.
After hearing learned counsel for the parties and on going through the record and provisions of Section 12A(1) of the commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act and looking to the urgency of interim relief prayed by the appellants in the present matter, the trial Court is directed to hear the applications filed by the appellants and proceed ahead in the matter without forcing the appellants to avail the pre-institution remedies as observed by the learned Judge.
Applications be heard at an early date and decided as expeditiously as possible.
With the aforesaid observations this appeal stands disposed of. Certified copy today.
(S. C. Sharma) (Shailendra Shukla)
Judge Judge
skt
Santosh Kumar Tiwari
2019.08.07 16:52:33 +05'30'