Remedy of pre-institution mediation envisaged under Commercial Courts Act is mandatory, non-adherence of which renders suit void and also non-suits plaintiff
Commercial Courts Act provides for the remedy of pre-institution mediation and the issue raised before the Court was whether the remedy of pre-institution mediation is a directory or mandatory.
The existence or user of the word 'shall' in provision is not the sole determinative factor for ascertaining whether that provision is a directory or mandatory. The user of such a word usually denotes a mandatory nature to provision. However, there are instances where the word 'shall' has been read to be a directory.
If the object of the Act would be defeated by non-compliance, then such statute to be regarded as mandatory. If a provision of law prescribes that, for a person to acquire a right a certain act has to be done in a particular manner and it is coupled with another provision that confers a right on another when such act is not done in that manner, then it has to be regarded as a mandatory provision.
The consequence of non-adherence to S. 12A of Act renders the institution of suit void. The pain of non-compliance with S. 12A of the Act for the plaintiff is getting non-suited.
S. 12A (1) of the Act distinguishes suits filed under the Act into two categories. Suits are categorized into two on basis of the need of the plaintiff to obtain urgent interim relief. One category is a suit where the plaintiff does not seek urgent interim relief. Another category of suits under S. 12A of the Act is a suit where the plaintiff seeks urgent interim reliefs.
In the category of suits where the plaintiff does not seek urgent interim relief, the plaintiff is statutorily required to exhaust pre-institution mediation, whereas a plaintiff seeking urgent interim relief is not required to do so.
In a suit where the plaintiff does not seek urgent interim reliefs, the limitation is extended or kept in abeyance, as one may perceive it, till the conclusion of the statutorily mandated period of mediation while in another category no such benefit is extended. A plaintiff may not undertake pre-institution mediation if he is in a position to demonstrate that he requires urgent interim relief. To do so, the plaintiff has to approach the Court before which suit is to be instituted and satisfy the Court that it needs to institute such a suit without undertaking a pre-institution mediation because of urgency claimed by the plaintiff. S.12A of the Act is a provision that regulates and affects the right of the plaintiff to approach a Court to try suits of a civil nature.
Considering all these factors, Debangsu Basak J held that remedy of pre-institution mediation envisaged under S. 12A of Act is mandatory.
Appearing counsel/s : Mr. Rajeev Kumar Jain, Mr. Ayush Jain, Mr. Surajit Nath Mitra, Mr. Reetobroto Mitra, Mr. Deepak Jain, Mr. Jayanta Mitra, Mr. Debdut Mukherjee, Ms. Prith Basu, Mr. Sabyasachi Chowdhury, Mr. Rajarshi Dutta, Mr. Avirup Chattaerjee, Mr. Swatarup Banerjee, Mr. Paritosh Sinha, Mr. Manali Bose, Mr. Saubhik Chowdhury, Mr. Dripto Majumdar, Ms. Ayusmita Sinha, Mr. Rajarshi Dutta, Mr. Ranjan Bachawat, Mr. Debdut Mukherjee, Mr. Meghajit Mukherjee, Mr. Vikas Tewary, Mr. Anik Banerjee, Mr. C. K. Saha, Mr. Syed Hassan, Mr. Subid Ali, Mr. Rajarshi Dutta, Mr. Sayantan Bose, Mr. K. K. Pandey
