As dictated by Section 12-A(1)1 of the Commercial Courts Act, 2015 (CCA), a suit which does not contemplate any “urgent interim relief” shall not be instituted unless one exhausts the remedy of “pre-institution mediation”. It is a mandatory provision. To try out less combative “mediation” is a good option. But what should happen in suits which do pray for urgent interim relief? Can't those suits be attempts to bypass mediation? The court, under Section 80(2)2 of the Code of Civil Procedure, 1908 (CPC), can return a plaint if it is satisfied, after hearing the parties, that no immediate relief need be granted. Section 12-A of the CCA does not outline such a process. Knowing the question was not under consideration, the Bench of K.M. Joseph and Hrishikesh Roy, JJ. of the Supreme Court of India did not “dwell upon it” in Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd.3
Indisputably, in “intellectual property law” cases, urgent interim reliefs are “extremely important”, as was identified by Pratibha M. Singh, J. of the High Court of Delhi in Bolt Technology OU v. Ujoy Technology (P) Ltd.4 They are quia timet actions against injuries anticipated. Ideally, one seeking an urgent interim relief in an intellectual property law case under CCA, should show, to borrow Pearson J.,'s words from Fletcher v. Bealey5, if damage does occur at any time, it will come in such a way and under such circumstances, it will be impossible to protect oneself. Whether such is shown or not is to be determined solely on the basis of pleadings and relief(s) sought as per the Division Bench of Vibhu Bakhru and Amit Mahajan, JJ. of the High Court of Delhi in Chandra Kishore Chaurasia v. R.A. Perfumery Works (P) Ltd.6 Does this mean, mere seeking of an urgent interim relief should suffice, even if it appears to be “farcical” and intends to avoid rigour of Section 12-A of the CCA? The Division Bench of Harish Tandon and Prasenjit Biswas, JJ. of the High Court of Calcutta in Odisha Slurry Pipeline Infrastructure Ltd. v. IDBI Bank Ltd.7, described Section 12-A of the CCA is silent on the same. C. Hari Shankar, J. of the High Court of Delhi in Novartis AG v. Zydus Healthcare Ltd.8 does warn, urgent interim reliefs sought can be “speculative”, without cogent and precise material.
It was stated recently by Dr D.Y. Chandrachud, C.J. in Iqram v. State of U.P.9, history often indicates, in seemingly small and routine matters, “issues of moment” emerge. On the “first day of hearing”10 before the High Court of Delhi in Sunshine Teahouse (P) Ltd. (Sunshine) v. MRTM Global (P) Ltd. (MRTM)11, Pratibha M. Singh, J. noted—
(i) the plaint, registered as a suit, is filed by Sunshine who claims to own 200 outlets across India and has been using the mark “Chaayos” since 2012;
(ii) MRTM, with 37 outlets claimed, has adopted the mark “Chaiops” for products and services identical to Sunshine; and
(iii) the debate is on phonetic/ocular similarity of “Chaayos” and “Chaiops” marks.
Interestingly, though an “interim injunction” had been prayed for, a battle of 200 outlets against 37 did not see the grant of an urgent interim relief because of the “status of the businesses” and there indeed appeared a possibility of “post-suit registration mediation”. It is strikingly indicative; no one foresaw the damage that could not be undone. After an “amicable resolution” was reached12 in little over a month, the full court fee was directed to be refunded to Sunshine in terms of Nutan Batra v. Buniyaad Associates13.
In view of Sunshine v. MRTM14 can it not be imagined, even if an interim injunction is prayed for, the option of meditation, the crucial purpose behind Section 12-A(1) of the CCA, is not foreclosed? Of course, both parties must agree on the same on the first day of the hearing and the urgent interim relief should not be pressed for anymore. It is submitted that if an intellectual property law case under CCA involves an urgent interim relief, Section 12-A(1) does not become inapplicable until completion of the first day of the hearing with both parties present. As said by Sanjiv Khanna, J. of the Supreme Court in Saranpal Kaur Anand v. Praduman Singh Chandhok15, the underlying objective of prescribing procedure is to advance cause of justice.
† Advocate at New Delhi and Kolkata. Author can be reached at firstname.lastname@example.org.