Shasmith Technologies Private Limited v. Max Healthcare Institute Limited

1. Petitioner seeks stay of the proceedings pending before the learned Trial Court.

2. According to him, matter is fixed for arguments on application moved under Order XIII-A CPC for deciding whether the plaintiff is entitled to summary judgment or not and, in case such application is decided in favour of the plaintiff, the present petition would become infructuous.

3. The matter is reportedly coming up for further hearing before the learned Trial Court on 29th instant.

4. Since learned counsel for respondent is also present, with the consent of the learned counsel for the parties, the main petition as such has been taken up for consideration. CM(M) 426/2023 2

5. Petitioner, who is defending a commercial suit, is aggrieved by order dated 15.02.2023 passed by the learned Trial Court whereby his application moved under Order VII Rule 11 CPC has been dismissed.

6. The prime grievance raised by the petitioner/defendant is to the effect that there is no compliance of mandatory provision of Section 12A of Commercial Courts Act and, therefore, suit could not have been instituted, without exhausting the remedy of pre-institution mediation.

7. Copy of the suit has also been annexed with the petition and a bare perusal of the aforesaid suit would indicate that the plaintiff i.e. Max Healthcare Institute Limited, has filed a suit for permanent injunction restraining infringement of their trademark and passing off, damages etc.

8. Along with the suit, the plaintiff also filed an application under Order XXXIX Rules 1 & 2 r/w Section 151 CPC.

9. Suit was instituted on 19.09.2022 and was taken up for hearing for the first time by the learned Commercial Court on 21.09.2022 and while issuing summons of the aforesaid suit and notice of the application moved under Order XXXIX Rules 1 & 2 r/w Section 151 CPC, learned Trial Court, even, passed an interim restraint order against the defendants and, simultaneously, plaintiff was also directed to comply with provisions of Order XXXIX Rule 3 CPC.

10. Evidently, the suit was not only contemplating but was also seeking urgent relief.

11. In the aforesaid peculiar matrix, it is beyond my comprehension to understand as to on what basis, the defendant claims that there was no compliance of mandatory provision of Section 12 Commercial Courts Act. The aforesaid mandatory requirement would kick in only where the suit does CM(M) 426/2023 3 not contemplate any urgent relief.

12. As already noted above, the suit was seeking permanent injunction and the plaintiff had even filed an application seeking interim relief and interim injunction was even granted to the plaintiff.

13. Learned counsel for petitioner/defendant submits that parties were already under mediation before Delhi High Court Mediation & Conciliation Centre and invocation of such centre is not in consonance with the provisions of the Act and Rules made thereunder.

14. However, even such argument is fallacious in nature.

15. According to learned counsel for plaintiff/respondent herein, the plaintiff had received a legal notice from the defendant and it was in the aforesaid backdrop that they had invoked mediation.