Delhi High Court - Orders
M/S Imberatek Llc vs Apple Inc & Anr on 14 March, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~51
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 227/2024 & I.As. 5976-5983/2024
M/S IMBERATEK LLC ..... Plaintiff
Through: Mr. Anirban Sen, Advocate.
versus
APPLE INC & ANR. ..... Defendants
Through: Mr. Neeraj Kishan Kaul, Senior
Advocate with Mr. Saikrishna
Rajagopal, Mr. Sidharth Chopra, Ms.
Sneha Jain, Mr. Saif Rahman Ansari,
Ms. Shruti Jain and Mr. Raghav
Agarwal, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 14.03.2024
1. At the outset, before going into the merits of the case, Mr. Anirban Sen, counsel for Plaintiff, has apprised the Court that the subject patent, against which, infringement is alleged, is approaching the end of its term on 31st March, 2024. Thus, the Plaintiff is not insisting on any interim relief. Therefore, Plaintiff's case, in essence, purely pertains to a claim of damages which they would have to establish by proving infringement.
2. Considering the above position, the Court has queried as to why the mandate under Section 12A of the Commercial Courts Act, 2015 [hereinafter, "Act"] has not been followed in the instant suit. Mr. Sen, after making some submissions, on instructions, states that the Plaintiff is inclined to explore pre-institution mediation and seeks permission to withdraw the CS(COMM) 227/2024 Page 1 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/03/2024 at 23:15:12 present suit with liberty to approach the Court in case the mediation attempt in unsuccessful. Since the suit is being withdrawn on the first date itself with an intent to explore mediation, he further requests for refund of court fee.
3. Considering the above, the suit is dismissed as withdrawn. In the peculiar facts and circumstances of the case and considering that Mr. Sen has, without dwelling into merits, at the outset, sought to withdraw the present suit to endeavour to resolve the matter amicably, the request for refund of court fee is allowed. Registry is directed to issue a certificate for refund of full court fee in favour of the Plaintiff.
4. Needless to say, Plaintiff shall always be at liberty to approach the Court in the event pre-institution mediation does not fructify.
5. Dismissed as withdrawn, along with pending applications, with liberty as aforesaid.
SANJEEV NARULA, J MARCH 14, 2024 d.negi At 01:45 P.M.
6. At this juncture, Mr. Sen has mentioned the matter to submit that he did not have instructions to withdraw the suit. Accordingly, the Court has proceeded to consider the effect of non-compliance with Section 12A of the Act in the present suit.
7. Section 12A of the Act mandates a party to first explore mediation prior to instituting a commercial suit. This requirement is however dispensed with when the suit contemplates "any urgent interim relief". As noted CS(COMM) 227/2024 Page 2 of 3 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/03/2024 at 23:15:12 hereinabove, given the approaching end-date of the life of subject patent, Plaintiff does not wish to press for an interim relief. The judgments in Yamini Manohar v. T.K.D. Krithi,1 and Chandra Kishore Chaurasia v. R.A. Perfumery Works Private Ltd.,2 have explicitly laid down that a commercial suit cannot be instituted without exhaustion of pre-litigation mediation and that a Court has no discretion to exempt the application of the provision to any party.
8. In view of the settled legal position, in the opinion of the Court, absent an urgent interim relief, the Plaintiff cannot be permitted to circumvent the mandate of Section 12A of the Act.
9. The suit is accordingly dismissed in view of such non-compliance.
10. In view of the events that have transpired, the earlier direction to Registry to issue a certificate of refund of court fee is revoked.
SANJEEV NARULA, J MARCH 14, 2024 d.negi At 02:44 P.M.
11. Mr. Sen has yet again mentioned the matter, stating that he has now received instructions to withdraw the suit.
SANJEEV NARULA, J MARCH 14, 2024/d.negi 1 2023 SCC OnLine SC 1382.
2Neutral citation: 2022/DHC/004454.
CS(COMM) 227/2024 Page 3 of 3This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 22/03/2024 at 23:15:15