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ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 28008 OF 2025
IN
COMMERCIAL SUIT (L) NO. 22835 OF 2025
Dipti Co-operative Housing Society Ltd … Applicant
IN THE MATTER BETWEEN
Buildcon Sethia Construction … Plaintiff vs.
Dipti Co-operative Housing Society Ltd … Defendant
Mr. Simil Purohit, Senior Advocate a/w. Mr. Vishal Pattabiraman i/b.
Mr. Nikhil Rajeshirke, Mr. Saurabh Rajeshirke for
Applicant/Defendant.
Mr. Karl Tamboly a/w. Mr. Bhavin Shah a/w. Mr. Anshul Anjarlekar a/w. Ms. Sanika Athalye i/b. Raval Shah and Co., for the Plaintiff.
JUDGMENT
1. This application is filed by the defendant under Order VII Rule 11 of the Civil Procedure Code, 1908 (‘CPC’), praying to reject the plaint under clause (d) of Order VII Rule 11 of the CPC on the ground that the suit filed without following the mandatory VIJAY RAJGURU requirement under Section 12A of the Commercial Courts Act, 2015 (‘said Act’) deserves to be rejected. It is the objection on behalf of the defendant that the suit does not contemplate any urgent interim relief. Thus, in view of the well-settled legal principles, the plaint deserves to be rejected for non-compliance with Section 12A of the said Act.
SUBMISSIONS ON BEHALF OF THE DEFENDANT:
2. Learned senior counsel for the defendant relies upon the relevant paragraphs in the plaint and submits that the redevelopment agreement in favour of the plaintiff was terminated by legal notice dated 1st April 2025. The suit to challenge the termination is filed on 10th July 2025. The plaint does not reveal that, according to the plaintiff, any urgent interim relief is contemplated. Even the interim application seeking urgent relief was filed only on 1st August 2025. According to the plaintiff, if any urgent interim relief was contemplated, the plaint should have contained the relevant averments justifying the reason for not complying with the mandatory provisions under Section 12A and the reasons for seeking urgent interim relief. He submits that if the relevant paragraphs of the plaint are seen, the plaint does not contain the pleadings that any urgent interim relief is contemplated in the suit. Though there is a prayer for interim relief in the suit, there are no averments as to the reason for seeking urgent interim relief.
3. To support his submissions, learned senior counsel for the defendant relied upon the wording of section 12A. He submits that the suit that does not contemplate any urgent interim relief cannot be instituted. It is a well-settled legal principle that compliance under Section 12A is mandatory. Thus, the plaint must contain relevant pleadings that the urgent interim relief is contemplated. As per wellsettled legal principles, the plaint must set out the reasons for noncompliance with the mandatory provision under Section 12A. He thus submits that based on the averments in the plaint and the supporting documents, the courts have to ascertain whether any urgent interim relief is contemplated according to the plaintiff for not complying with the mandatory provision of Section 12A. None of the paragraphs in the plaint contain any such averments that urgent interim relief is required. He relies upon the decision of this court in the case of Lakhani Realty LLP Vs. Kalina Vihar Darshan Cooperative Housing Society and Others[1], and submits that this court, by relying upon the legal principles in the decision of Patil Automation Private Limited and Others Vs. Rakheja Engineers 1 Interim Application No. 24924 of 2025 dated 15th October 2025, Yamini Manohar Vs. T.K.D. Keerthi[3], and Dhanbad Fuels Private Limited Vs. Union of India and Anr 4 has taken a view that the plaint and the supporting documents should reveal that urgent interim relief is contemplated. He relied upon paragraph NO. 25 of the judgment to support his submissions that the suit contemplates urgent interim relief, would mean that the plaint and documents should show and indicate the need for urgent interim relief. In the present case, the plaint is bereft of any averment that any urgent interim relief was contemplated, even according to the plaintiff. Thus, the test for urgent interim relief on examination of the plaint would show that the suit does not contemplate any urgent interim relief. He also relies upon the relevant observations of the Hon’ble Apex Court in the case of Yamini Manohar. He submits that the words “contemplate any urgent interim relief” should be clear from the language and words pleaded in the plaint.
4. On a similar proposition, learned senior counsel for the defendant relies upon the decision of this court in the case of M/s. Kamla Landmarc Real Estate and Others Vs. M/s. Image Developer and Anr[5]. He submits that this court has considered the conduct of the plaintiff pre-filing the suit and post-filing the suit to hold that the
5 IA(L) No. 5452 of 2025 in Commercial Suit (L) No. 39332 of 2024, dated 19.9.2025 plaintiff makes out no case to justify non-compliance with Section 12A. This court held that the onus lies heavily on the plaintiffs seeking non-compliance with the mandatory provision, and the same must be pleaded with factual details, and not by bald statements. By referring to the averments in the plaint in the present case, he submits that the plaint does not contain any such factual details and material to justify non-compliance with Section 12A. He thus submits that, as held by the Hon’ble Apex Court and followed by this court in various decisions, if the plaint does not contain any relevant pleadings justifying non-compliance with Section 12A, the plaint deserves to be rejected under Order VII Rule 11 of the CPC.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF:
5. Learned counsel for the plaintiff submits that the plaint, if read as a whole, would indicate that there was an urgent interim relief contemplated as the defendant had terminated the redevelopment agreement. He submits that, in the intervening period, if a new developer is appointed, such an appointment would defeat the plaintiff's rights. Hence, in the plaint, the plaintiff has pleaded all relevant particulars, pointing out the breach committed by the defendant in unilaterally terminating the redevelopment agreement. The plaint refers to all the particulars regarding the termination of the redevelopment agreement and the steps taken by the plaintiff prior to termination, including the payment made to the society under the redevelopment agreement. He referred to the relevant pleadings in paragraphs 13 to 17 of the plaint, regarding the steps taken by the plaintiff to comply with the terms and conditions of the redevelopment agreement. The particulars regarding the approval of the building plan and the further steps taken to obtain permissions from the Competent Authority are pleaded in detail in the plaint.
6. Learned counsel for the plaintiff also relied upon the pleadings from paragraph 39 onwards to submit that the refusal on the part of the defendant to comply with the terms and conditions of the agreement, including its refusal to execute Permanent Alternate Accommodation Agreements (PAAA) and hand over peaceful possession despite several reminders, frustrates the agreement in favour of the plaintiff. Failure on the part of the defendant to vacate the premises and hand over the same for the performance of the completion of the redevelopment agreement is specifically pleaded in the plaint. The steps taken in furtherance of the agreement, including obtaining relevant permissions, and the huge expenses incurred by the plaintiff, are also pleaded. The particulars of the total expenditure, aggregating to more than Rs. 7 crores, incurred by the plaintiff for compliance with the terms and conditions of the development agreement are pleaded. He therefore submits that if the urgent interim relief is not granted in favour of the plaintiff and a new developer is appointed by the society, the same would defeat the rights of the plaintiff. Hence, based on the substantive pleadings with regard to the steps taken by the plaintiff for compliance of the terms and conditions of the agreement and breach comitted by the defendant by refusing to comply with the obligation is the basis for seeking interim relief as prayed in the plaint in prayer clauses (j) to (l), supported by a separate interim application filed for interim relief. He therefore submits that if the plaint is read holistically, the reason and cause of action for seeking urgent interim relief is pleaded by the plaintiff. The subject matter of the suit and the facts and circumstances pleaded in the plaint, supported by documents and a separate application for interim relief, clearly indicate that the urgent interim relief is contemplated according to the standpoint of the plaintiff.
7. Learned counsel for the plaintiff submits that the interpretation of the words “contemplate urgent interim relief” is no longer res integra. He submits that after referring and relying upon the legal principles settled by the Hon’ble Apex Court, this court, in the case of Lakhani Realty LLP, has rejected the application under Order VII Rule 11 of the CPC. He relies upon paragraphs 25 to 29 of the decision in the case of Lakhani Realty LLP to support his submissions that the facts and circumstances of the suit have to be considered holistically from the standpoint of the plaintiff. He submits that the test for contemplating urgent interim relief has to be satisfied, notwithstanding the actual outcome on merits. In the present case, as the subject matter of the suit and the cause of action, for seeking urgent interim relief is seen to have been contemplated from the standpoint of the plaintiff, the plaint cannot be rejected at the threshold.
8. To support his submissions, learned counsel for the plaintiff also relies upon the decision in the case of Khar Petrochemical Company Vs. Hazel Mercantile Limited 6. He submits that this court held that mere delay in filing the application cannot be considered for the purpose of ascertaining whether the urgent interim relief is contemplated. The urgency must be judged in the light of the circumstances and not the merits of the urgent interim relief. He thus submits that mere filing of an application for interim relief after a few days from the date of institution of the suit cannot be construed to mean that no urgent relief is contemplated from the 6 IA(L) No. 3847 of 2024 I n Commercial Suit No. 48 of 2024, dated 9th June 2025. standpoint of the plaintiff. He thus submits that the plaint cannot be rejected at the threshold.
CONSIDERATION OF SUBMISSIONS:
9. I have carefully perused the pleadings in the plaint. The plaint contains substantial pleadings regarding the terms and conditions of the redevelopment agreement, as well as the steps the plaintiff has taken to comply with those terms and conditions in furtherance of the agreement. The payments made by the plaintiff and the expenditure incurred for compliance with the terms and conditions are specifically pleaded in the relevant paragraphs. The plaint, if read as a whole, shows the reasons from the plaintiff's standpoint for seeking urgent interim relief. According to the plaintiff, if the urgent relief is not granted, it would defeat the rights created in the plaintiff's favour. The relevant averments in the plaint from paragraph 37 onwards pertain to the allegations made against the defendant that attempts were made by the defendant to frustrate the agreement. Hence, according to the plaintiff, the defendant's failure to comply with the terms and conditions of the agreement and to hand over possession for the performance of the redevelopment agreement is the cause of action for filing the suit and the reason for seeking urgent interim relief. The urgent interim relief as contemplated by the plaintiff would find place in the prayer clauses. The urgent relief as contemplated from the standpoint of the plaintiff is further supported by filing a separate application seeking interim relief.
10. As rightly pointed out by the learned counsel for the plaintiff, the urgent interim relief as contemplated from the standpoint of the plaintiff for justifying non-compliance with the mandatory provisions of Section 12A is a well-settled legal principle, as evidenced by various decisions of the Hon’ble Apex Court, followed in various decisions of this court. The issue of non-compliance with Section 12A, with reference to the urgent interim relief contemplated from the plaintiff's standpoint, is no longer res integra.
LEGAL POSITION:
11. In the decision of this court in the case of Lakhani Realty LLP, the earlier decisions are discussed. In view of the well-settled legal principles, the standpoint of the plaintiff is with reference to the facts and circumstances of the suit from the viewpoint of the plaintiff. Mere absence of a specific statement in the plaint that urgent interim relief is contemplated for not complying with the provision of Section 12A, itself, would not mean that the plaint deserves to be rejected for non-compliance with Section 12A. As held by the Hon’ble Apex Court in the case of Yamini Manohar, the words ‘contemplate urgent interim relief’ suggest that the suit must contemplate urgent interim relief. Thus, it is held that the facts and circumstances should be considered holistically from the standpoint of the plaintiff. Refusal to grant ad-interim or interim relief cannot be a justification to dismiss the suit under Order VII Rule 11 of the CPC. The test for urgent interim relief is that if, on examination of the nature and the subject matter of the suit and the cause of action, the plaintiff’s prayer for urgent interim relief could be said to be contemplable when the matter is seen from the standpoint of the plaintiff. Thus, the legal principles settled by the Hon’ble Apex Court and followed by this court in the case of Lakhani Realty LLP, squarely support the arguments raised on behalf of the plaintiff.
12. So far as the decision in the case of M/s. Kamla Landmarc Real Estate, relied upon by the learned senior counsel for the defendant is concerned, the relevant observations regarding the material and statement in the plaint and pre-filing and post-filing conduct of the plaintiff is concerned, is with reference to the facts of the said case and the test applied is for considering whether the urgent interim relief is contemplated from the standpoint of the plaintiff in the said case. Hence, the relevant observations relied upon by the learned senior counsel for the defendant from this court's decision in M/S. Kamla Landmarc Real Estate cannot be interpreted to mean that in every suit, the mere absence of any specific words in the plaint; it can be said that no urgent interim relief is contemplated in the facts and circumstances of that suit for considering whether non-compliance with Section 12A is justified or not. As held by the Hon’ble Apex Court in the decisions of Yamini Manohar and Dhanbad Fuels Private Limited, the facts and circumstances should be considered holistically from the standpoint of the plaintiff.
13. In Khark Petrochemical Company, this court was dealing with an application for interim relief in a suit instituted for a decree on a foreign Award passed by the Arbitral Tribunal. In the facts of that case, pendency of proceedings before NCLT and possibility of the orders being passed therein to the prejudice of the plaintiff was pressed as justification for non-invocation of mediation under Section 12A. While examining the objection raised by the defendant that such a justification would not be tenable, this Court held that the delay on the part of the plaintiff in approaching the court from the date of the Award may bear upon the entitlement of the plaintiff for interim relief; however, the urgency is required to be judged in the light of the circumstances as seen on the date of institution of the suit. This court rejected the application for interim relief. However, while examining the objection that non-compliance with Section 12A was not justified, this Court relied upon the well-settled legal principles in Yamini Manohar and Patil Automation to hold that a primary enquiry based on the averments in the plaint, documents annexed thereto, and the attendant facts of the case indicated that the suit contemplated an urgent interim relief. It is further held that a decline to grant ad-interim or interim relief would not bear upon the tenability of the suit sans pre-institution mediation.
ANALYSIS AND CONCLUSIONS:
14. Thus, in view of the well-established legal principles as discussed above, there cannot be a straitjacket formula while examining the justification for non-compliance with Section 12A. After reading the plaint as a whole, each suit has to be examined in the facts and circumstances of that case for ascertaining whether non-compliance with Section 12A is justified on the ground that urgent interim relief is contemplated from the plaintiff’s point of view.
15. While deciding the application under Order VII Rule 11 of the CPC, it is also necessary to refer to the legal principles for applying the provisions of Order VII Rule 11 of the CPC for rejection of the plaint at the threshold. The relevant observations regarding the legal principles for applying Order VII Rule 11 of the CPC in the decision of Lakhani Realty LLP in paragraph nos. 28 to 30 read as under: “28. ……..It is necessary to note that the legislature has found it fit to amend some of the provisions of CPC for its application to the commercial division and commercial courts. In the amendments made applicable to the commercial division and commercial courts, the provisions of Order VII Rule 11 of the CPC are not amended, and thus the legal principles for rejection of the plaint in Order VII Rule 11 of the CPC would also apply to the suits filed in the commercial courts and commercial division.
29. Thus, considering the well-settled legal principles by the Hon’ble Apex Court in the case of Dahiben vs. Arvindbhai referred by this court in the decision of Westin Infra World Private Ltd., it is held that the power conferred on the court to terminate a civil action is drastic one and thus conditions enumerated under Order VII Rule 11 of the CPC are required to be strictly adhered.
30. Considering the facts and circumstances of the present case, the plaintiff has made out a case for not complying with the mandatory provision of pre-institution mediation, as according to the plaintiff, urgent interim relief is contemplated in the suit. As held by the Hon’ble Apex Court in the decision of Yamini Manohar and Dhanbad Fuels Private Limited, the prayer for urgent interim relief by the plaintiff would be said to be contemplable, when the matter is seen from the standpoint of the plaintiff. Thus, in view of the pleadings in the plaint, coupled with the supporting documents as discussed in the above paragraphs, non-compliance with the mandatory requirement under Section 12A of the said Act would not warrant rejection of the plaint. The arguments made on behalf of the defendants that the cause of action pleaded in the suit and the requirement for a drastic mandatory injunction and appointment of Court Receiver are not made out by the plaintiff would be a question to be decided at the time of examining the prayer for interim relief.”
16. Thus, the legal principles for rejection of the plaint under Order VII Rule 11 of the CPC are required to be strictly adhered to for rejecting the plaint at the threshold. Considering the relevant pleadings in the plaint in the present case, the plaint cannot be rejected at the threshold for non-compliance with the mandatory requirement under Section 12A of the said Act. The pleadings in the plaint, the supporting documents, the facts and circumstances explained in the plaint, and the prayers made in the plaint for interim relief, supported by a separate interim application seeking urgent interim relief, clearly make out the case, when viewed from the standpoint of the plaintiff, that the suit contemplates urgent interim relief. Filing a separate interim application seeking urgent interim relief on a subsequent date cannot be a ground for holding that, on the date of filing the suit, no urgent interim relief was contemplated. Hence, in the present case, non-compliance with the provisions of Section 12A is justified. Therefore, the plaint cannot be rejected at the threshold on the ground of non-compliance with Section 12A of the said Act.
17. For the reasons set out in the aforesaid paragraphs, the application is rejected. (GAURI GODSE, J.)