Professional Documents
Culture Documents
filing suit: Madras High Court uplifts Section 12A of the Commercial Courts
Act.
SUBJECT:
In the present case, the Court is dealing with the matter of urgent interim relief that should be
provided at the time of filing a suit under Section 12 A of the Commercial Courts Act. This was
done to bypass mandatory pre-institution mediation that must exist at the time of institution of
the suit.
IMPORTANT PROVISIONS:
BRIEF FACTS:
QUESTIONS RAISED
The plaintiff demonstrated the ‘’urgent relief claim’ phenomenon by referring to Plaint
Document Nos. 42 and 43 dated 9 December 2021 and 22 December 2021. These
documents include the communications from PNB to plaintiff and plaintiff’s response to
the same.
Plaint Document No. 42 clearly stated that PNB invoked the personal guarantee on 21
June 2014 qua an outstanding of little over Rs. 440.49 Crores. The plaintiff responded
with an e-mail stating that the PNB did not discussed the matter with the him and
therefore, it is an impulsive unilateral step. The plaintiff even requested PNB to provide
all documents relating to the personal guarantee agreement.
The Commercial Division in Plaint Document No. 43 has mentioned one articulation that
the plaintiff by his own volition has stated that PNB should have shown the courtesy of
‘discussing’ considering the long standing cordial association. In this present view, the
Commercial Division and the plaintiff has suggested mediation.
Proceedings were initiated in ‘Debts Recovery Tribunal-I, Chennai’ (hereinafter to be
referred as ‘DRT’) by State Bank of India and Syndicate Bank. The Commercial Division
informed that the proceedings were done before ‘National Company Law Tribunal’
(hereinafter to be referred to as ‘NCLT’) but no documents were produced.
Learned counsel referred to Chandra Kishore Chaurasia v. R.A. Perfumery Works
Private Limited to explain the compliance of Section 12A of CCA.
The learned counsel claimed that the institution of mediation would create an irreversible
situation. There was also no explanation as to why was the plaintiff prevented from
invoking Section 12 A after the e-mail received on 22 December 2021.
Henceforth, the petitioner’s council submitted that the invocation of personal guarantee
along with the exposure was certainly unfair ground in urgency at this distant point of
time.
The plaintiff’s reply (dated 22 December 2021) to the communication from PNB (dated
9 December 2021) included all documents such as CBIL notification but those were only
consequences.
The Commercial Division called for records and summoned the first defendant on 26
December 2022 along with the Manager of the first defendant Bank.
ANALYSIS BY THE COURT
The Commercial Division deems it appropriate to preserve the rights of the plaintiff with a
similar or a same suit if the need arises after exhausting pre-institution mediation as per the
Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018 read with notification
authorizing the State and District Authorities under the Legal Services Authorities Act, 1987 as
the authorities under Section 12A of the Commercial Courts Act, 2015, both dated 3 July 2018.
The plaintiff by his own volition in his reply to PNB vide Document No. 43 dated 22 December
2021 has said that basic courtesy of discussing such a serious matter considering the long cordial
association should have been extended.
The Court observed that the observations in this judgment /order will neither serve as an impetus
nor be an impediment for either of the parties in collateral proceedings. Hence, it rejected the suit
filed by the plaintiff.
CONCLUSION
The Supreme Court has rightly observed the lack of elements in Section 12A that needed to be
addressed. The mediation attempt should not be diverted by promoting interim relief. According
to my opinion the Courts can use Section 89 of the Code of Civil Procedure, 1908 and refer such
cases to mediation after the urgent interim application is decided.