Zydus Wellness Products Ltd. vs Karnal Foods Pack Cluster Limited And Ors.

. Decided on : 29.08.2025

Zydus Wellness Products Ltd. ...Non-applicant/plaintiff

Versus Karnal Foods Pack Cluster Limited and others. ...Applicant/defendants

Coram Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes

For the non-applicant/ : M/s Guruswamy Natraj, Shradha

plaintiff Karol and Vaibhav Singh Chauhan, Advocates. For the applicant/ : Mr. Rajiv Jiwan, Senior Advocate, defendants with M/s Yug Singhal, Prashant

Sharma and Aditi Sharma, Advocates, for applicant/ defendant No.2.

Mr. Praveen Chandel, Advocate,

for defendant No.4. Defendants No.1 & 3 already exparte.

Ajay Mohan Goel, Judge (Oral)

By way of this application, filed under Order VII,

Rule 11(d) read with Section 151 of the Civil Procedure Code

(hereinafter referred to as 'CPC'), prayer has been made by the 1Whether reporters of the local papers may be allowed to see the judgment?

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applicant for the rejection of the plaint.

2. Learned Senior Counsel for the applicant/defendant

No.2 argued that as the subject matter of the present suit

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constitutes a commercial dispute as defined under Section 2(c)

(xvii) of the Commercial Courts Act, 2015 (hereinafter referred

to as 'the Act'), it was mandatory upon the plaintiff to comply

with pre-institution mediation as provided under Section 12A(1)

of the Act and in the present case as the plaintiff did not

exhaust the said remedy, therefore, the plaint is liable to be

rejected on the said ground. He argued that the only exception

to the above mandatory compliance is when the party has

prayed for an urgent relief and the party can demonstrate

before the Court that in light of the fact that it is urging the Court

to grant urgent relief, it is not in the peculiar facts of that case,

required to go for a pre-litigation mediation in terms of the

provisions of the Act. Learned Senior Counsel by referring to

the judgments of the Hon'ble Supreme Court, which I will refer

to in the later part of this order, argued that mere filing of an

application for an interim injunction by the plaintiff is not

sufficient and the Commercial Court is obliged to holistically

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examine and scrutinize the nature and subject matter and

cause of action to affirm the genuineness of the urgency to

seek an interim relief. He submitted that a perusal of the plaint

.

demonstrates that herein the alleged cause arose in favour of

the defendant in the month of April, 2023 when the first Cease

and Desist notice was issued and since then the plaintiff has

been sending such kind of notices or reminders to defendant

No.2 and as the plaintiff approached the Court after a lapse of

two years as from the date when the cause of action accrued,

without demonstrating any sufficient cause so as to seek any

urgent interim relief, the bypassing of the mandatory

requirement of pre-litigation mediation cannot be condoned and

the plaint deserves to be rejected under Order VII, Rule 11 of

the CPC.

3. On the other hand, learned counsel for the non-

applicant/plaintiff submitted that a perusal of the plaint clearly

demonstrates that when the suit was filed by the plaintiff along-

with an application under Order XXXIX, Rules 1 and 2 of the

CPC praying for interim relief, the fact situation necessitated the

plaintiff to approach the Court to seek urgent relief in light of the

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conduct of the applicant/defendant No.2 who was flagrantly

violating the trademark of the plaintiff and as in this regard the

last cause of action arose in the month of December, 2024, as

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is clearly spelled out in the plaint, and thereafter, as the plaintiff

immediately approached this Court by way of the suit as well as

the application for urgent relief, the plaintiff was not obliged to

resort to the pre-litigation mediation and, therefore, as there is

no merit in the application, the same be dismissed.

4. I have heard learned Senior Counsel for the

applicant/defendant No.2 as well as learned counsel for the

non-applicant/plaintiff and have also gone through the contents

of the application as well as the reply thereto and the plaint.

5. By way of this Civil Suit, the plaintiff has, inter alia,

prayed for the following reliefs:-

"(i) decree of permanent and mandatory injunction

restraining Defendants, partners, proprietors, directors,

employees, officers, servants, agents, subsidiaries,

affiliates and all others acting for and on their behalf from

manufacturing, selling, offering for sale, exporting,

advertising, marketing and/or in any manner using

directly or indirectly in relation to its products being

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allied or cognate goods, the mark Glucose-D,

Glucospoon-D, Glucose-C and associated trade dress

.

which is deceptively similar to Plaintiff's registered word

and label trademarks Glucon-D and Glucon-C® and

associated trade dress and/or any other mark/trade

dress/packaging deceptively similar to Plaintiff's

registered trademarks and associated trade dress

mentioned in the present Plaint amounting to

infringement of trademark;

(ii) decree of permanent and mandatory injunction

restraining Defendants, partners, proprietors, directors,

employees, officers, servants, agents subsidiaries,

affiliates and all others acting for and on their behalf from

manufacturing, selling, offering for sale, exporting,

advertising, marketing and/or in any manner using

directly or indirectly in relation to its products being

glucose powder-based drink mixes and/or any other

allied or cognate goods, the marks Glucose-D,

Glucospoon-D, Glucose-C and associated trade dress

which is deceptively similar to Plaintiff's registered word

and label trademarks Glucon-DⓇ and Glucon-C® and

associated trade dress and/or any other mark/trade

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registered trademarks and associated trade dress

mentioned in the present Plaint amounting to

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infringement of Plaintiff's trade dress or trade dress

passing off;

(iii) decree of permanent and mandatory injunction

restraining Defendants, partners, proprietors, directors,

employees, officers, servants, agents, subsidiaries,

affiliates and all others acting for and on their behalf from

manufacturing, selling, offering for sale, exporting,

advertising, marketing and/or in any manner using

directly or indirectly in relation to its products being

glucose powder-based drink mixes and/or any other

allied or cognate goods, the marks Glucose-D,

Glucospoon-D, Glucose-C and associated trade dress

which is deceptively similar to Plaintiff's registered word

and label trademarks Glucon-DⓇ and Glucon-C® and

associated trade dress and/or any other mark/trade

dress/ packaging deceptively similar to Plaintiff's

registered trademarks and associated trade dress

mentioned in the present Plaint amounting to

infringement of Plaintiff's trade dress or trade dress

passing off;

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(iv) decree of delivery up of all the products, labels,

glasses, cartons, bottles, brochures, packets, dies,

packaging and any other document or goods of

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Defendants bearing the marks Glucose-D and/or

Glucose-C and/or Glucospoon-D and or its formative

marks/variants and its associated trade dress which is

deceptively similar to Plaintiff's registered trademarks

Glucon-D and/or Glucon-Cand its associated trade dress

which is deceptively similar to Plaintiff's packaging/

labels, to authorized representative of the Plaintiff for the

purpose of destruction/erasure;

(v) decree for rendition of accounts of profits illegally

earned by Defendants on account of the sale of the

products bearing marks Glucose-D and/or Glucose-C

and/or Glucospoon-D and or its formative marks/variants

and its associated trade dress which is deceptively

similar to Plaintiff's registered trademarks Glucon-D

and/or Glucon-C® and associated trade dress which is

deceptively similar to Plaintiff's packaging;

(vi) decree for the amount so found due be passed in

favour of Plaintiff or a Decree for damages for the

amount of the tune of Rs. 1,00,77,000/- (INR One crore

seventy-seven thousand only) or such higher sum as

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be passed against Defendants and in favour of Plaintiff;

(vii) a mandatory injunction against all Defendants to

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take down and ensure that no further listings of such

impugned products bearing the infringing marks Glucose-

D and Glucose-C and/or Glucospoon-D and/or variants

thereof are uploaded on any website(s) under their direct

or indirect control;

(viii) a declaration that Plaintiff's registered trademark

Glucon-D® word marks of the Plaintiff are a well-known

marks within the meaning of Section 2(1)(zg) of the

Trademarks Act, 1999."

6. By way of OMP No. 17 of 2025, filed under Order

XXXIX, Rules 1 and 2 of the CPC, the plaintiff has prayed for

the grant of following interim relief, during the pendency of the

Civil Suit:-

"(i) an Order for ex parte ad interim/ ad interim or

interim injunction restraining Defendants from using the

marks Glucose-D, Glucose-C and Glucospoon-D and/or

any other mark/label identical with or confusingly/

deceptively similar to the Plaintiff's registered Glucon-D®,

Glucon-C® and/or formative trademarks in respect of any

product or advertising or promoting or offering for sale or

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to amount to an infringement of trademark;

(ii) an Order of ex parte ad interim/ad interim/interim

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injunction restraining Defendants from manufacturing,

selling, offering for sale, exporting, advertising, marketing

and/or in any manner using directly or indirectly in

relation to its products being glucose powder-based drink

mixes and/or any other allied or cognate goods, the

marks Glucose-D, Glucose-C and Glucospoon-D and/or

associated trade dress deceptively similar to Plaintiff's

registered trademarks Glucon-DⓇ, Glucon-C® and/or

formative marks and/or associated trade dress and/or

any other mark/trade dress/ packaging

ED/TOD/deceptively similar to Plaintiffs registered

trademarks and associated trade dress mentioned in the

present plaint amounting to passing off of the der to

Regisgoods of Defendants as those of Plaintiff or trade

dress infringement;

(iii) an Order for ex parte ad interim/ ad interim or

interim injunction restraining the Defendants from using

Glucose-D, Glucose-C and Glucospoon-D label or

artwork identical or deceptively similar therein which is

similar to the Plaintiff's copyright in such labels and

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promoting or offering for sale or selling or exporting or

importing any such product so as to amount to an

.

infringement of copyright of the Plaintiff;

(iv) an Order for ex parte ad interim/ ad interim or

interim injunction restraining the Defendants from using

including by displaying online in any media, the

trademark/marks Glucose-D, Glucose-C and

Glucospoon-D label which is identical with or

confusingly/deceptively similar to the Plaintiff's registered

trademarks Glucon-D®, Glucon-C® in respect of any

product or advertising or promoting or offering for sale or

selling or exporting or importing any such product so as

to amount to an infringement of trademark;

(v) an Order for ex parte ad interim/ ad interim or

interim injunction restraining the Defendants from using

including by displaying online in any media, the

trademark/marks Glucose-D, Glucose-C and

Glucospoon-D label which is identical with or

confusingly/deceptively similar to the Plaintiff's registered

trademarks Glucon-D®, Glucon-C® in respect of any

product or advertising or promoting or offering for sale or

selling or exporting or importing any such product so as

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(vi) an Order for ex parte ad interim/ ad interim or

interim injunction against all Defendants to take down

.

any listing/listings online in any media and/or withdraw all

such promotional material including any offline or online

advertisements or offers for sale, including brochures,

pamphlets, leaflets, etc., qua the products impugned in

the present Suit which bear Glucose-D, Glucose-C and

Glucospoon-D label and/or artwork which is identical or

deceptively similar thereto;

(vii) an order directing Defendant Nos. 1 and 2 to state

on affidavit the exact dates of commencement of

sale/offer for sale by them of the product impugned in the

present Suit and file such affidavits in this Hon'ble Court;

(viii) an order directing Defendant Nos. 1 and 2 to file a

statement of account and assets on affidavit within a

period of three weeks qua the said products 101

impugned in the present Suit and refrain from disposing

or dealing with such assets in a manner which may

adversely affect the Plaintiff's ability to recover damages,

costs or other pecuniary reliefs which may finally be

awarded to the Plaintiff;

(ix) pass ex parte ad interim reliefs in terms of prayers

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(i) to (ix) above"

7. Order VII, Rule 11 of the CPC provides as under:-

"11. Rejection of plaint-- The plaint shall be rejected in the

.

following cases:--

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the

plaintiff, on being required by the Court to correct the

valuation within a time to be fixed by the Court, fails to do

so;

r (c) where the relief claimed is properly valued, but the

plaint is returned upon paper insufficiently stamped, and

the plaintiff, on being required by the Court to supply the

requisite stamp-paper within a time to be fixed by the

Court, fails to do so;

(d) where the suit appears from the statement in the plaint

to be barred by any law;

1 [(e) where it is not filed in duplicate;]

2 [(f) where the plaintiff fails to comply with the provisions

of rule 9];

3 [Provided that the time fixed by the Court for the correction of

the valuation or supplying of the requisite stamp-paper shall

not be extended unless the Court, for reasons to be recorded, is

satisfied that the plaintiff was prevented by any cause of an

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the requisite stamp-paper , as the case may be, within the time

fixed by the Court and that refusal to extend such time would

.

cause grave injustice to the plaintiff.] "

8. In terms of the provisions of Order VII, Rule 11 of

the CPC, the plaint shall be, inter alia, rejected by the Court

where it does not disclose a cause of action or where the suit

appears from the statement in the plaint to be barred by any

law. It is settled law that for the purpose of the adjudication of

an application under Order VII, Rule 11 of the CPC, the Court

has to restrict itself to the contents of the plaint as well as

documents filed therewith to assess and ascertain as to

whether the plaint is hit by the provisions of Order VII, Rule 11

of the CPC or not. The Court is not to delve into the defence of

the other side to judge the credibility of the application. The

merit of the application has to be assessed by the Court on the

basis of the contents of the plaint itself.

9. Coming to the facts of this case in terms of the

averments made in the plaint, the plaintiff is stated to be the

holder of registered trademarks Glucon-D and Glucon-C. Its

grievance is that the defendants are infringing its trademarks by

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using trademarks identically/deceptively similar to its registered

trademarks and thus passing on their products as those

manufactured by the plaintiff.

.

10. According to the plaintiff, the infringing activities of

defendant No.2 date back as far as 28.04.2023, when

defendant No.2 was sent a Cease and Desist notice by the

plaintiff with respect to impugned mark Glucospoon-D. Further

in terms of the averments made in the plaint, this was followed

by a reminder sent to defendant No.2 on 18.05.2003.

Thereafter, plaintiff found that defendant No.1 was selling the

impugned products for defendant No.2 and a Cease and Desist

notice was issued to both defendants No.1 and 2 on

18.05.2023.

11. According to the plaintiff, a reply was sent to the

said notice on behalf of defendants No.1 and 2 on 28.07.2023,

blatantly disregarding the rights of the plaintiff. It is further

mentioned in the plaint that thereafter, since plaintiff could not

find the products of either defendant No.1 and/or of defendant

No.2 in brick-and-mortar stores, the plaintiff bonafidely believed

that the physical products of defendants No.1 and 2 bearing the

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infringing marks had been exhausted and were not available for

sale any longer. However, upon conducting a routine market

check, plaintiff came across the same infringing products on

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third party websites. Thereafter, plaintiff sent a Cease and

Desist notice to defendant No.1 on 29.05.2024 and via e-mail

on 01.06.2024. Reminders were sent on 11.06.2024 and on

12.07.2024. It is further the contention of the plaintiff that on

19.07.2024 defendant No.1 sent a signed and notarized

undertaking dated 19.07.2024 agreeing to refrain from

infringing the trademarks of the plaintiff.

12. According to the plaintiff, upon further follow up, it

was discovered that defendant No.1 continued to engage in

infringing the impugned marks and non-compliance e-mails

were sent to defendant No.1 on 22.07.2024 and 12.09.2024. As

per the plaintiff, a Cease and Desist notice was also sent to

defendant No.2, in the interregnum, on 18.04.2024 and this

notice was served upon the said defendant through e-mail on

22.05.2024. Defendant No.2 sent a reply to the Cease and

Desist notice dated 18.10.2024 denying plaintiff's rights over its

trademarks. Despite multiple notices and efforts made by the

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plaintiff to arrive at an amicable resolution, defendants blatantly

disregarded the rights of the plaintiff and continued to sell the

infringing products on the websites of defendants No. 2, 3 & 4.

.

13. According to the plaintiff, it received a message via

whatsapp from defendant No.2 on 09.12.2024 offering to supply

the infringing products.

14. Under the head 'Cause of Action' in Para-90 to 96 of

the plaint, the following is mentioned:-

"90. The cause of action is as recent as September 2024

for Defendant No. 1 when Plaintiff learnt of online

advertisements of infringing products of Defendant No. 2

being sold by Defendant No. 1 on third party websites

such as IndiaMart and Trade India within the territorial

jurisdiction of this Hon'ble Court. Plaintiff sent multiple

mails asking Defendant to comply with terms of the

undertaking signed by it.

91. The cause of action has been continuing from the

date of Cease & Desist Notice being sent to Defendant

No. 1 in May 2024. Critically, the products sold by

Defendant No. 1 are accessible from within the

jurisdiction of this Hon'ble Court.

92. The cause of action arose again in December 2024

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products to Plaintiff's counsel. The WhatsApp

conversation is attached with the proceedings as

.

Annexure W. The cause of action for Defendant No. 2 is

a continuing cause of action dating back to April 2023.

93. Defendant No. 2 has paid no heed to the notices and

communications sent by Plaintiff and continues to

infringe Plaintiff's rights. This is a clear attempt to deceive

consumers and ride on the coattails of Plaintiff's

reputation built over so many years.

94. Defendant No. 2 has moreover tried to trick Plaintiff

by getting Defendant No. 1 to sign and notarise the

undertaking while carrying out the same infringing

activities on its own website and those of Defendant Nos.

3 and 4.

95. The cause of action is a continuing cause of action in

as much as Defendant No. 2 continues to advertise and

offer for sale the infringing products bearing the

impugned marks on its own websites and websites of

Defendant Nos. 3 and 4. The cause of action thus

subsists every day such acts of infringement are

continued by Defendants and the present Suit is within

limitation. Copies of Cease and Desist Notices and their

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Annexure X.

96. The present Suit is being filed on an urgent quia timet

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basis in as much as Defendant Nos. 1 and 2 appear to

have paid no heed to the earlier legal proceedings

through Cease and Desist Notices and are likely to dump

huge stocks of low-quality material."

15. Section 12A of the Commercial Courts Act, 2015

provides as under:-

r "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 preinstitution mediation in accordance

with such manner and procedure as may be prescribed by

rules made by the Central Government.

(2) The Central Government may, by notification,

authorise the Authorities constituted under the Legal Services

Authorities Act, 1987 (39 of 1987), for the purposes of pre-

institution mediation.

(3) Notwithstanding anything contained in the Legal

Services Authorities Act, 1987, the Authority authorised by

the Central Government under sub-section (2) shall complete

the process of mediation within a period of three months from

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section (1):

Provided that the period of mediation may be

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extended for a further period of two months with the consent

of the parties:

Provided further that, the period during which the

parties remained occupied with the pre-institution mediation,

such period shall not be computed for the purpose of

limitation under the Limitation Act, 1963 (36 of 1963).

(4) If the parties to the commercial dispute arrive at a

settlement, the same shall be reduced into writing and shall

be signed by the parties to the dispute and the mediator.

(5) The settlement arrived at under this section shall

have the same status and effect as if it is an arbitral award on

agreed terms under sub-section (4) of section 30 of the

Arbitration and Conciliation Act, 1996 (26 of 1996).]"

16. Hon'ble Supreme Court of India while interpreting

this statutory provision in Patil Automation Private Limited

and others versus Rakheja Engineers Private Limited,

(2022) 10 Supreme Court Cases 1, has been pleased to hold

as under:-

"99. We may sum-up our reasoning as follows:

::: Downloaded on - 01/09/2025 21:24:51 :::CIS 20 2025:HHC:29474 99.1. The Act did not originally contain Section 12A. It is by

amendment in the year 2018 that Section 12A was inserted.

The Statement of Objects and Reasons are explicit that Section

.

12A 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.

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

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hold that the provision is mandatory. The entire procedure for

carrying out the mediation, has been spelt out in the Rules. The

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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 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.

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100. In the cases before us, the suits do not contemplate

urgent interim relief. As to what should happen in suits which

do contemplate urgent interim relief or rather the meaning of

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the word "contemplate" or urgent interim relief, we need not

dwell upon it. The other aspect raised about the word

"contemplate" is that there can be attempts to bypass the

statutory mediation under Section 12-A by contending that the

plaintiff is contemplating urgent interim relief, which in reality,

it is found to be without any basis. Section 80(2) CPC permits

the suit to be filed where urgent interim relief is sought by

seeking the leave of the court. The proviso to Section 80(2)

contemplates that the court shall, if, after hearing the parties, is

satisfied that no urgent or immediate relief need be granted in

the suit, return the plaint for presentation to the court after

compliance. Our attention is drawn to the fact that Section 12-

A does not This is a matter which may engage attention issues

which arise for our consideration. IN the fact of the cases

admittedly there is no urgent interim relief contemplated in the

plaints in question."

Thereafter, Hon'ble Supreme Court in Para-113.1 thereof, held

as under:-

"113.1. We declare that Section 12-A of the Act is

mandatory and hold that any suit instituted violating the

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the plaint under Order 7 Rule 11. This power can be

exercised even suo motu by the court as explained

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earlier in the judgment. We, however, make this

declaration effective from 20-8-2022 so that stakeholders

concerned become sufficiently informed."

17. This was followed by the judgment of Hon'ble

Supreme Court in Yamini Manohar versus T.K.D. Keerthi,

(2024) 5 Supreme Court Cases 815, in which Hon'ble Supreme

Court after referring to its earlier judgment in Patil Automation

Private Limited and others versus Rakheja Engineers Private

Limited (supra), was pleased to hold as under:-

"10. We are of the opinion that when a plaint is filed

under the CC Act, with a prayer for an urgent interim

relief, the commercial court should examine the nature

and the subject-matter of the suit, the cause of action,

and the prayer for interim relief. The prayer for urgent

interim relief should not be a disguise or mask to wriggle

out of and get over Section 12-A of the CC Act. The facts

and circumstances of the case have to be considered

holistically from the standpoint of the plaintiff. Non-grant

of interim relief at the ad interim stage, when the plaint is

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not justify dismissal of the commercial suit under Order 7

Rule 11 of the Code; at times, interim relief is granted

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after issuance of notice. Nor can the suit be dismissed

under Order 7 Rule 11 of the Code, because the interim

relief, post the arguments, is denied on merits and on

examination of the three principles, namely: (i) prima

facie case, (ii) irreparable harm and injury, and (iii)

balance of convenience. The fact that the court issued

notice and/or granted interim stay may indicate that the

court is inclined to entertain the plaint.

11. Having stated so, it is difficult to agree with the

proposition that the plaintiff has the absolute choice and

right to paralyse Section 12-A of the CC Act by making a

prayer for urgent interim relief. Camouflage and guise to

bypass the statutory mandate of pre-litigation mediation

should be checked when deception and falsity is

apparent or established. The proposition that the

commercial courts do have a role, albeit a limited one,

should be accepted, otherwise it would be up to the

plaintiff alone to decide whether to resort to the

procedure under Section 12-A of the CC Act. An

"absolute and unfettered right" approach is not justified if

::: Downloaded on - 01/09/2025 21:24:51 :::CIS 25 2025:HHC:29474 the pre-institution mediation under Section 12-A of the

CC Act is mandatory, as held by this Court in Patil

Automation.

.

12. The words "contemplate any urgent interim relief in

Section 12-A(1) of the CC Act, with reference to the suit,

should be read as conferring power on the court to be

satisfied. They suggest that the suit must "contemplate",

which means the plaint, documents and facts should

show and indicate the need for an urgent interim relief.

This is the precise and limited exercise that the

commercial courts will undertake, the contours of which

have been explained in the earlier paragraph(s). This will

be sufficient to keep in check and ensure that the

legislative object/intent behind the enactment of Section

12-A of the CC Act is not defeated."

18. These principles have been reiterated by the

Hon'ble Supreme in M/s Dhanbad Fuels Private Limited

versus Union of India and another, (2025) SCC online 1129

(Neutral Citation No. 2025 INSC 696) and Para-62 thereof,

Hon'ble Supreme Court has been pleased to hold as under:-

"E. CONCLUSION

62. In light of the aforesaid discussion, we summarise

our findings as under:

::: Downloaded on - 01/09/2025 21:24:51 :::CIS 26 2025:HHC:29474 a. The decision of this Court in Patil Automation

(supra) lays down the correct position of law as

regards Section 12A of the 2015 Act by holding it

.

to be mandatory in nature.

b. As held in paragraph 104 of the decision in Patil

Automation (supra), the declaration of the

mandatory nature of Section 12A of the 2015 Act

relates back to the date of the Amending Act.

c. As held in paragraph 113.1 of the decision in

Patil Automation (supra), any suit which is

instituted under the 2015 Act without complying

with Section 12A is liable to be rejected under

Order VII Rule 11. However, this declaration

applies prospectively to suits instituted on or after

20.08.2022.

d. A suit which contemplates an urgent interim

relief may be filed under the 2015 Act without first

resorting to mediation as prescribed under Section

12A of the 2015 Act.

e. Unlike Section 80(2) of the CPC, leave of the

court is not required to be obtained before filing a

suit without complying with Section 12A of the

2015 Act.

::: Downloaded on - 01/09/2025 21:24:51 :::CIS 27 2025:HHC:29474 f. The test for "urgent interim relief' is if on an

examination of the nature and the subject-matter

of the suit and the cause of action, the prayer of

.

urgent interim relief by the plaintiff could be said to

be contemplable when the matter is seen from the

standpoint of the plaintiff.

g. Courts must also be wary of the fact that the

urgent interim relief must not be merely an

unfounded excuse by the plaintiff to bypass the

mandatory requirement of Section 12A of the 2015

Act.

h. Even if the urgent interim relief ultimately

comes to be denied, the suit of the plaintiff may be

proceeded with without compliance with Section

12A if the test for "urgent interim relief" is satisfied

notwithstanding the actual outcome on merits.

i. Suits instituted without complying with Section

12A of the 2015 Act prior to 20.08.2022 cannot be

rejected under Order VII Rule 11 on the ground of

non-compliance with Section 12A unless they fall

within the exceptions stipulated in paragraph

113.2 and 113.3 of the decision in Patil

Automation (supra).

::: Downloaded on - 01/09/2025 21:24:51 :::CIS 28 2025:HHC:29474 j. In suits instituted without complying with Section

12A of the 2015 Act prior to 20.08.2022 which are

pending adjudication before the trial court, the

.

court shall keep the suit in abeyance and refer the

parties to time-bound mediation in accordance

with Section 12A of the 2015 Act if an objection is

raised by the defendant by filing an application

under Order VII Rule 11, or in cases where any of

the parties expresses an intent to resolve the

dispute by mediation."

19. Thus, it is evident from the said judgments of the

Hon'ble Supreme Court that when a plaint is filed under the

Commercial Court Act, with a prayer for urgent interim relief,

the Commercial Court is duty bound to examine the nature

and subject matter of the suit, the cause of action and the

prayer for interim relief. The Court has to ascertain and

satisfy itself that the prayer for urgent relief should not be a

guise or mask to wriggle out of and get over Section 12A of

the Act. Hon'ble Supreme Court has also held that non-grant

of interim relief at the ad-interim stage when the plaint is

taken up for registration/admission and examination, will not

justify dismissal of the Commercial Suit under Order VII,

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Rule 7 of the CPC. Camouflage to bypass the statutory

mandate of pre-litigation mediation should be checked when

deception and falsity is apparent or established.

.

20. Therefore, now, in the facts as they stand

narrated hereinabove, this Court has to adjudicate as to

whether the plaintiff was justified in the facts of the case in

bypassing the pre-litigation mediation as is envisaged under

Section 12-A of the Act or not.

21. As is evident from the averments made in the

plaint, the plaintiff, in terms of the pleadings, became aware

of the alleged infringement of its trademark by defendant

No.2 on 28.04.2023 and defendant No.1 sometime

thereafter. Further in terms of the averments made in the

plaint, from 28.04.2023 the plaintiff continued to issue Cease

and Desist notices to the defendants along-with other

notices calling upon them to desist from infringing the

trademarks of the plaintiff. In terms of averments made in

Para-90 to 96 of the plaint, the cause of action recently

before the filing of the plaint arose in the month of

September, 2024, when the plaintiff learnt of online

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advertisements of infringing products manufactured by

defendant No.2, being sold by defendant No.1 on third party

websites, such as India Mart and Trade India and again in

.

the month of December, 2024, when defendant no.2 offered

for sale the impugned products to the learned counsel for

the plaintiff.

22. If one closely peruses the averments made in the

plaint, what is evident is the fact that the offending act of the

defendants of purported infringement of the trademarks of

the plaintiff, was in the knowledge of the plaintiff since

28.04.2023 onwards. As from the said date i.e. 28.04.2023

up to the filing of the Civil Suit, nothing new was being done

by defendants No.1 and 2 except the alleged infringement of

the trademarks of the plaintiff by advertising and selling the

products of defendant No.2, as is mentioned in the plaint.

This means that there was no qualitative change in the

cause of action as from 28.04.2023 up to the filing of the

Civil Suit.

23. Now, as already mentioned hereinabove, in terms of

the judgments of the Hon'ble Supreme Court, compliance of

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Section 12A of the Act is mandatory and it is the duty of the

Courts to ensure the compliance of the said provision and also

to ensure that in the garb of urgent relief, plaintiff does not

.

circumvents the provisions of Section 12A of the Act.

24. A perusal of the application filed by the plaintiff for

the grant of urgent relief demonstrates that besides giving the

chronological narration of the facts as well as the narration of

the cause, as to how according to the plaintiff, the trademark of

the plaintiff is being infringed by the defendants, in the backdrop

of the fact that the plaintiff itself alleges in the plaint that the

infringement was being done by the defendants, since the

month of April, 2023, there is no whisper in the application as to

what necessitated the plaintiffs to seek urgent relief, by

bypassing the statutory provisions of Section 12A of the Act.

This Court is not suggesting that the plaintiff, should have

prayed for exemption for doing away with the mandate of

Section 12A of the Act, however, as the suit filed is a

Commercial Suit and Section 12A is a mandatory provision

contained in the Commercial Courts Act, it ought to have been

mentioned in the application as to what was the urgency, which

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was necessitating the filing of the application for urgent relief, at

the stage, when the Suit was filed without resorting to pre-

litigation mediation. The application is completely silent on this

.

aspect of the matter.

25. Therefore, in the facts of this case, this Court is of

the considered view that the plaintiff could not have done away

with the mandatory pre-institution mediation in settlement, as is

contemplated under Section 12A of the Act.

26. Herein, the situation at the time when the suit was

filed, was not much different as from April, 2023 and there was

no Paradigm shift in the situation as from the month of April,

2023 or thereafter, till the filing of the Civil Suit qua the alleged

infringement of the trademark and, therefore, the plaintiff ought

to have had resorted to the pre-institution mediation in

settlement, as the time frame mentioned in Section 12A of the

Act to undergo pre-institution mediation in settlement, would not

have caused any grave prejudice or detriment to the interest of

the plaintiff as the alleged infringement of its trademark was

continuing from the month of April, 2023 onwards. Therefore,

act of the plaintiff in the present case of bypassing the

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provisions of Section 12A of the Act, cannot be condoned.

27. It is clarified that the non-grant of urgent relief to the

plaintiff has not weighed with this Court while passing this order.

.

28. This Court is alive to the fact that what has to be

examined is whether urgent relief application was a bonafide

application or just a camouflage to bypass Section 12A of the

Act. In this case, the application was filed just to bypass Section

12A of the Act.

29. In light of the above observations, as this Court is of

the considered view that in the present case the Civil Suit was

filed by the plaintiff without there being any occasion to do away

with the pre-institution mediation in settlement as is provided

under Section 12A of the Act, this application is allowed and the

plaint is rejected, in light of the provisions of Order VII, Rule

11(d) of the Civil Procedure Code. Costs easy. Pending

miscellaneous application(s), if any, also stand disposed of

accordingly.

(Ajay Mohan Goel) Judge

August 29, 2025 (Shivank Thakur)

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