Delhi High Court - Orders
Acme Cleantech Solutions Pvt Ltd & Anr vs R K Container Line Pvt Ltd & Ors on 24 September, 2024
Author: Navin Chawla
Bench: Navin Chawla
$~23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 825/2024
ACME CLEANTECH SOLUTIONS PVT LTD & ANR.
.....Plaintiffs
Through: Mr.Dhanesh Relan, Ms.Sonia
A. Menon, Mr.Arindam Dey &
Mr.Aditya Pandey, Advs. along
with Ms.Shreya Sharma, AR of
P-1.
versus
R K CONTAINER LINE PVT LTD & ORS. .....Defendants
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
ORDER
% 24.09.2024 I.A. 40315/2024 (Exemption)
1. Allowed, subject to all just exceptions.
I.A. 40316/20242. This is an application filed on behalf of the plaintiffs seeking to file certain additional documents. The same shall be filed in accordance with the Commercial Courts Act, 2015.
3. The application is disposed of.
I.A. 40314/20244. By this application, the plaintiffs pray for exemption from initiating pre-institution mediation as mandated under Section 12A of the Commercial Courts Act, 2015. The plaintiffs submit that, in the present Suit, urgent interim relief in the form of a mandatory 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 25/09/2024 at 23:58:57 injunction has been sought, as the automation machines are lying at the Container Freight Station at Mundra Port, and if they are not immediately released, the solar module manufacturing machine cannot be installed by plaintiff No. 2, which would result in grave hardship.
5. I have considered the submissions of the learned counsel for the plaintiffs.
6. Section 12A(1) of the Commercial Courts Act, 2015 reads as under:
"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."
7. Explaining the mandatory nature of the above provision, the Supreme Court in Patil Automation (P) Ltd. (supra) held as under:
"99. We may sum-up our reasoning as follows:
99.1. The Act did not originally contain Section 12-A. It is by amendment in the year 2018 that Section 12-A was inserted. The Statement of Objects and Reasons are explicit that Section 12-A was contemplated as compulsory. The object of the Act and the Amending Act of 2018, unerringly point to at least partly foisting compulsory mediation on a plaintiff who does not contemplate urgent interim relief. The provision has been contemplated only with reference to plaintiffs who do not contemplate urgent interim relief.
The legislature has taken care to expressly exclude the period undergone during mediation for reckoning limitation under the Limitation Act, 1963. The object is clear.
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 25/09/2024 at 23:58:57 99.2. It is an undeniable reality that courts in India are reeling under an extraordinary docket explosion. Mediation, as an alternative dispute mechanism, has been identified as a workable solution in commercial matters. In other words, the cases under the Act lend themselves to be resolved through mediation. Nobody has an absolute right to file a civil suit. A civil suit can be barred absolutely or the bar may operate unless certain conditions are fulfilled. Cases in point, which amply illustrate this principle, are Section 80 CPC and Section 69 of the Partnership Act.
99.3. The language used in Section 12-A, which includes the word "shall", certainly, goes a long way to assist the Court to hold that the provision is mandatory. The entire procedure for carrying out the mediation, has been spelt out in the Rules. The parties are free to engage counsel during mediation. The expenses, as far as the fee payable to the mediator, is concerned, is limited to a one- time fee, which appears to be reasonable, particularly, having regard to the fact that it is to be shared equally. A trained mediator can work wonders.
99.4. Mediation must be perceived as a new mechanism of access to justice. We have already highlighted its benefits. Any reluctance on the part of the Court to give Section 12-A, a mandatory interpretation, would result in defeating the object and intention of Parliament. The fact that the mediation can become a non-starter, cannot be a reason to hold the provision not mandatory. Apparently, the value judgment of the lawgiver is to give the provision, a modicum of voluntariness for the defendant, whereas, the plaintiff, who approaches the court, must, necessarily, resort to it. Section 12-A elevates the settlement under the Act and the Rules to an award within the meaning of 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 25/09/2024 at 23:58:57 Section 30(4) of the Arbitration Act, giving it meaningful enforceability. The period spent in mediation is excluded for the purpose of limitation. The Act confers power to order costs based on conduct of the parties."
8. In Yamini Manohar (supra), the Supreme Court re-emphasised the mandatory nature of the above provision, while also clarifying that the facts and circumstances of each case have to be considered holistically from the standpoint of the plaintiff, though the plaintiff does not have the absolute choice and right to paralyse Section 12A of the Commercial Courts Act, 2015 by making a prayer for urgent interim relief, camouflaging or creating a facade to bypass the statutory mandate of the above Section. The role of the Commercial Courts is limited to check and ensure that the legislative mandate and object behind the enactment of Section 12A of the Commercial Courts Act is not defeated.
9. Considering the contents of the application, and after considering the submissions of the learned counsel for the plaintiffs, the plaintiffs are granted an exemption from initiating pre-institution mediation.
10. The application is disposed of.
CS(COMM) 825/2024
11. Let the plaint be registered as a suit.
12. Issue summons to the defendants, to be served through all permissible modes, including through electronic mode and dasti as well, returnable on 19th December, 2024 before the learned Joint Registrar (Judicial).
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 25/09/2024 at 23:58:58
13. The summons to the defendants shall indicate that the written statement(s) to the plaint shall be positively filed within a period of 30 days from the date of receipt of summons. Along with the written statement(s), the defendants shall also file the affidavit(s) of admission/denial of the documents of the plaintiff, without which the written statement(s) shall not be taken on record.
14. Liberty is given to the plaintiffs to file the replication within a period of 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the plaintiffs, the affidavit(s) of admission/denial of documents of the defendant(s) shall be filed by the plaintiffs, without which the replication(s) shall not be taken on record.
15. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
I.A. 40313/202416. By this application, the plaintiffs pray for the following relief:-
"a. grant ex-parte mandatory injunction directing the Defendant No.1 to issue a DO in terms of the Service Order/ LOI dated 11.05.2024 with respect to the 5-FR containers which have the Automated Machines which have been imported by the Plaintiffs from Shanghai Port to Mundra Port on 09.08.2024 and which 5-FR containers are at present lying in the CFS at Mundra port."
17. The learned counsel for the plaintiffs explains that an urgent relief is prayed for, inasmuch as not only is the subject machine that has been imported urgently required for setting up the solar module/solar power plant, but there is also a fear that it may be 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 25/09/2024 at 23:58:58 confiscated and auctioned by the Port/Customs Authorities.
18. Issue Notice to the Defendants, to be served through all permissible modes, including through electronic mode and dasti as well, returnable on 30th September, 2024 before the Court.
NAVIN CHAWLA, J SEPTEMBER 24, 2024/rv/VS Click here to check corrigendum, if any 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 25/09/2024 at 23:58:58