Allahabad High Court
M/S Jay Chemical Works vs M/S Sai Chemicals on 9 October, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD COMMERCIAL APPEAL No. - 18 of 2025 M/s Jay Chemical Works ..Appellant(s) Versus M/s Sai Chemicals ..Respondent(s) Counsel for Appellant(s) : Imran Syed, Anil Kumar Sahu Counsel for Respondent(s) : Arun Kumar Misra, Devansh Misra Chief Justice's Court HON'BLE ARUN BHANSALI, CHIEF JUSTICE HON'BLE KSHITIJ SHAILENDRA, J.
1. This appeal under Section 13 (1A) of the Commercial Courts Act, 2015 (for short 'the Act of 2015') has been filed by the appellant aggrieved of the order dated 29.03.2025 passed by the Commercial Court, Kanpur Nagar in Commercial Suit No. 31 of 2023 whereby the plaint filed by the appellant has been ordered to be returned under the provisions of Order VII Rule 10 CPC.
2. The suit was filed on 01.05.2023 by the appellant against the respondent inter alia seeking following reliefs:
"RELIEF CLAIMED The plaintiff therefore claims the following relief:-
(A) Decree for permanent injunction is passed in favor of the plaintiff as against the defendant thereby restraining the defendants, their proprietors, heirs, representatives, employees, servants, and dealers, sub dealers stockiest and all other persons on their behalf from infringing the registered trade mark/ copyrighted label/ trade dress/ color scheme of the plaintiff as Annexure I And II and the defendant be further restrain from selling manufacturing trading etc. of the said deceptively/identical trade mark along with its label as Annexure III and IV.
(B) For an order for rendition of accounts of profit earned by the defendant by their impugned trade activities and a decree for the amount so found in favor of the plaintiff on such rendition of accounts.
(C) An order for costs in the proceedings.
(D) Any other relief which this Hon'ble court may deem fit and proper under the circumstances of the case."
3. Along with the suit, an application under Order XXXIX Rules 1 and 2 read with Section 151 CPC and Section 135 (2) of the Trade Marks Act, 1999 was filed inter alia praying as under:
"That the plaintiff has a good prima facie case in favor of the plaintiff. The balance of convenience is in favor of the plaintiff and against the defendant as the plaintiff is prior user, prior adopter and registered proprietor of the trade mark HARA PATTA and LOGO OF LEAF and its label/packaging. The plaintiff is suffering and will suffer due to illegal course of activities adopted by the defendants. The defendant has adopted identical and visually similar label/packaging for same goods deliberately to trade upon plaintiff's goodwill and reputation. The plaintiff is the lawful owner of the trade mark HARA PATTA and LOGO OF LEAF and its label/packaging. It is, therefore, necessary in the public interest also that the defendant, its servant, shopkeepers, agents, dealers, stockiest, successors, assignees, distributors and representatives or any other person acting on its behalf and engaged in infringing the plaintiff's trade mark and copyright and passing off goods under identical and similar label/packaging and passing off the goods as those of the goods of the plaintiff under identical/similar label/packaging having identical/ similar color combination, get-up, lay out placement, font/script be restrained immediately by an injunction order/temporary injunction order from carrying on its business and marketing, selling, offering for sale, advertising or displaying directly or indirectly, the products and allied goods under the impugned slavishly pirated label/packaging or under any other identical/deceptively similar label. If the defendant is not restrained by an injunction order, irreparable loss and injury would be caused to the plaintiff for the reason aforesaid.
Prayed accordingly"
4. It appears that on filing of the suit, on appearance of the respondent-defendant, the matter was referred by the Commercial Court for mediation on 12.05.2023 wherein a report dated 02.06.2023 was submitted regarding the parties not willing for the mediation. Whereafter the suit along with the application remained pending.
5. On 24.07.2024, the respondent moved an application inter alia indicating that provisions of Section 12-A of the Act of 2015 have not been complied with and therefore, it would not be appropriate to proceed with the suit and it was prayed that appropriate order may be passed.
6. The application was contested by the appellant by filing reply inter alia referring to the fact that the Commercial Court had directed for mediation between the parties which has failed and that as urgent interim relief was prayed in the matter by filing application under Order XXXIX Rules 1 and 2, CPC, provisions of Section 12-A of the Act, 2015, would have no application.
7. The Commercial Court after hearing the parties, by the order impugned, with reference to the judgement in the case of Patil Automation Private Limited and others vs. Rakheja Engineers Private Limited : (2022) 10 SCC 1, came to the conclusion that as the plaintiff had not brought to the notice of the Court regarding urgent interim relief and had not sought relaxation from the provisions of Section 12-A of the Act of 2015, he cannot be permitted to take advantage of the error committed by the Court and though referred to the judgement in the case of O.N.G.C. Limited vs. M/s Modern Construction Company : (2014) 1 SCC 648 by Hon'ble Supreme Court, came to the conclusion that the plaint was liable to be returned under Order VII Rule 10 CPC and passed the order accordingly.
8. Counsel for the appellant made submissions that the Commercial Court was not justified in ordering for return of the plaint in the circumstance of the present case wherein admittedly a prayer for urgent interim relief was made and after the parties had appeared, they were sent for mediation by the Commercial Court. Submissions have been made that besides the fact that provisions of Section 12A of the Act of 2015 do not apply to a suit which contemplates any urgent interim relief, the sequence of events in the present case, does not call for return of the plaint and therefore, the order impugned deserves to be set aside.
9. Learned counsel for the respondent raised preliminary objection that the order impugned is not appealable under Section 13 (1A) of the Act of 2015. Submissions were made that the application was filed under Section 12-A of the Act of 2015 against which order, the appeal in terms of the proviso to Section 13 (1A) is not maintainable, which is confined to orders which are appealable under Order XLIII CPC or Section 37 of the Arbitration and Conciliation Act. Therefore, it was prayed that the appeal be dismissed as not maintainable.
10. Further submissions were made that merely because an interim urgent relief has been claimed in the suit, the same is not sufficient for maintaining the suit without complying with the requirement of provisions of Section 12-A of the Act of 2015 and mediation held during the pendency of the suit would not suffice for the purposes of requirement of Section 12-A which contemplates pre- institution mediation and, therefore, the order passed by the Commercial Court does not call for any interference.
11. We have heard learned counsel for the parties and have perused the material available on record.
12. So far as the preliminary objection raised by counsel for the respondent is concerned, the said objection apparently has no substance as the Commercial Court by its order impugned has specifically exercised powers under Order VII Rule 10 CPC, which order is appealable under Order XLIII Rule 1(a) CPC and, therefore, in terms of proviso to Section 13 (1A) of the Act, the appeal would be maintainable.
13. The undisputed facts are that the suit was filed seeking permanent injunction along with an application seeking temporary injunction pertaining to a trade mark.
14. The provisions of Section 12-A of the Act of 2015 insofar as relevant, read as under:
"12A. Pre-litigation 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-litigation mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.
...
15. A perusal of the above would reveal that the provisions provide for an exception in a case where the suit contemplates any urgent interim relief from pre-litigation mediation.
16. The Hon'ble Supreme Court in Yamini Manohar vs. T K D Keerthi : (2024) 5 SCC 815, after taking into consideration the law on the subject, observed as under:-
10. We are of the opinion that when a plaint is filed under the CC Act, with a prayer for an urgent interim relief, the commercial court should examine the nature and the subject-matter of the suit, the cause of action, and the prayer for interim relief. 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. The facts and circumstances of the case have to be considered holistically from the standpoint of the plaintiff. Non-grant of interim relief at the ad interim stage, when the plaint is taken up for registration/admission and examination, will not justify dismissal of the commercial suit under Order 7 Rule 11 of the Code; at times, interim relief is granted after issuance of notice. Nor can the suit be dismissed under Order 7 Rule 11 of the Code, because the interim relief, post the arguments, is denied on merits and on examination of the three principles, namely: (i) prima facie case, (ii) irreparable harm and injury, and (iii) balance of convenience. The fact that the court issued notice and/or granted interim stay may indicate that the court is inclined to entertain the plaint.
(emphasis supplied)
17. It has been laid down that when a plaint is filed under the Act of 2015, with a prayer for an urgent interim relief, the Commercial Court should examine the nature and subject matter of the suit and that the prayer for urgent interim relief should not be a disguise or mask to wriggle out of and get over Section 12A of the Act of 2015 and camouflage and guise to bypass the statutory mandate of pre-litigation mediation should be checked when deception and falsity is apparent or established. The Court in the said judgment categorically laid down that the fact that the Court issued notice and/or granted interim stay may indicate that the Court is inclined to entertain the plaint.
18. In the present case, as noticed hereinbefore, plaint was entertained and after parties appeared, they were referred to mediation and on failure of the mediation, the suit was registered on 07.07.2023 as indicated in para 15 of the affidavit of Mr. Ajay Kumar Agarwal in support of the Stay Application.
19. Whereafter the written statement was filed by the respondent wherein no objection pertaining to alleged non compliance of provisions of Section 12-A of the Act, 2015 was raised, however, on 24.07.2024 apparently with a view to seek adjournment in the suit, absolutely cursory and non descriptive application was filed by the counsel representing the respondent which reads as under:
egksn;] fuosnu gS fd mDr okn vkt U;k;ky; Jheku~ th ds le{k fu;r gSA mDr okn esa oknh eqdnek }kjk /kkjk 12 d okf.kfT;d U;k;ky; vf/kfu;e 2015 esa of.kZr izko/kku dk ikyu ugh fd;k x;k gS ,slh fLFkfr esa mDr okn vfxze dk;Zokgh fd;k tkuk U;k;kspr ugh gksxkA izkFkZuk vr% Jheku~ th ls fouez izkFkZuk gS fd mijksDr rF;ksa dks n`f"Vxr j[krs gq;s mDr okn esa ;Fkksfpr vknsk ikfjr djus dh d`ik dh tk;sA egku n;k gksxhA fnukad 24-7-2024 izkFkhZ es0 lkbZ dsfedy }kjk vf/koDrk ,l0,u0 'kqDyk ,MoksdsV
20. It would be seen that one line averment pertaining to non compliance of provisions of Section 12-A of the Act of 2015 was made and the Court was required to pass an appropriate order. The application did not allege that the suit did not contemplate any urgent interim relief and, therefore, the provisions were applicable and no prayer was made seeking rejection of the plaint.
21. The trial court on its part, though referred to the judgment in the case of O.N.G.C. Limited (supra), contrary to the law laid down therein which provides that the respondent cannot be permitted to take advantage of a mistake made by the Court and raise a technical objection to defeat the cause of substantial justice, read it against the plaintiff by indicating that the plaintiff cannot be permitted to take advantage of the mistake committed by the Court.
22. Be that as it may, after going through the record i.e. plaint, application for temporary injunction, the law laid down by Hon'ble Supreme Court in the case of Yamini Manohar (supra) and the sequence of events in the present case, we find that the plaint/application for temporary injunction had contemplated grant of urgent interim relief and merely because the commercial court did not specifically observe/pass order to the fact that the requirement of pre-institution mediation as contemplated under Section 12-A of the Act of 2015 was being dispensed with, the determination made by Hon'ble Supreme Court in the case of Yamini Manohar (supra) that 'the fact that the court issued notice and/or granted interim stay may indicate that the court is inclined to entertain the plaint', the order passed by the Commercial Court to the contrary and order for the return of the plaint under Order VII Rule 10 CPC, cannot be sustained.
23. Consequently, the appeal is allowed. The order dated 29.03.2025 passed by the Commercial Court is quashed and set aside.
24. The matter is remanded back to the Commercial Court, Kanpur Nagar to proceed with the suit from before the stage the order dated 29.03.2025 was passed.
25. No order as to costs.
(Kshitij Shailendra, J) (Arun Bhansali, CJ)
October 09, 2025
RK