PRE-MEDIATION AS PER Article-12-A Commercial COURTS Act-NOT
MANDATORY
The Commercial
Courts Act 2015 is enacted to cater to a particular set of cases under a common
scheme and clear prescription, with a view to ensure expedition and in
pursuance thereto, a separate procedure
is laid down. However, chapter III A
titled Pre-Institution Mediation and Settlement was introduced
in 2018 in the said Act, by way of Amendment to the Commercial Courts,
Commercial Division and Commercial Appellate Division of High Courts Act, 2015
(‘the Act’) and it is made retrospectively applicable w.e.f 03.05.2018.
Section 12 A in the Act,
envisages a mandatory reference to mediation in order to attempt to resolve
differences, out of court, before a suit can be instituted. The mechanism, as
carved out by virtue of Section 12 A of the Act is the point of deliberation
herein, in as much as it has caused stumbling block in the way of bona fide
litigant i.e aggrieved party and rather than, providing a practical solution,
in real sense of terms is causing impediments. The issue is reckoned by various
high courts with a view to arrest the
misery of bona fide litigants/aggrieved party.
Before
unfolding the discussion in the context, however, it will be worthwhile to
reproduce the section 12 A of the Act.
Section 12 A of the Act reads as under:
“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 pre-institution
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, 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 the
date of application made by the plaintiff under sub-section (1):
Provided that the period of mediation may be 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.
(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.”.
DISCUSSION
As illustrated,
as per sub-section (1) of Section 12A of the Act, the mandatory reference to
mediation can be negated if, along with the plaint, an application for ‘urgent
interim relief’ is preferred, in that eventuality, the reference
to mediation can be given a go-by and the suit may be instituted and proceeded
with.
It may appear
on closer scrutiny that Section 12-A of the Act is an unnecessary appendage and is superfluous and is required to be done away with. As
narrated above, the Section 12- A which is inserted by way of amendment in the
year 2018, has caused significant consternation. The Limitation Act, 1963,
prescribes institution of most of the suits including money suits as Three (3)
years. Several parties, while filing the suit on the verge of expiry of
limitation period, when are left with facing such a dilemma are shocked. The
irony is that quite often, a plaintiff is made to know about it after lapse of
considerable time after the proceedings are already initiated before courts.
Significantly, the time consumed in courts, while rejecting the plaint for relegating
parties to pre-mediation is not excluded from reckoning, unlike, the actual
time consumed in pre-mediation. In this
context, it is worthwhile to state that many suits are filed on the verge of
expiry of limitation period, not as a design, but as a providence and without
choice, since, the parleys for settlement are invariably undertaken between the
parties and when no workable settlement is found plausible, then, an aggrieved
party approaches courts of law. What is of added significance that many parties
are government instrumentalities and Public Sector Banks and public money and
its recovery is in peril, thus causing loss to exchequer. This is so, as the Commercial
Courts, often comes to a conclusion that on rejection of plaint, (as is the
obvious corollary, if pre-mediation report is not accompanied with the suit)
and on the requirement of seeking fresh pre-mediation report, the limitation
period expires and an aggrieved party is rendered remediless. In essence, the
interest of an aggrieved party is left in
lurch and the delinquent gleefully enjoys the premium accorded as per the
scheme of law. The net result is that a delinquent
party is accorded privilege to reap benefits of its misdemeanor.
The exponent
of Section 12 A of the Act shall argue that pre-mediation tool is a gateway to
probable solution in pre-litigation stage and therefore it should be encouraged. The reality is quite tangent, in fact,
contrary. The high courts are flooded with appeals, against such orders of
rejecting the plaint by the Commercial District Court, which is incidentally,
the courts of first instance at District Level. Though, the high courts have
come to rescue of the aggrieved party, either by setting aside of such order/s
and restoring the suit to its original number and with a direction to comply
with mandatory trap of pre-mediation as per the Act, or by inferring that
insistence of section 12 A of the Act itself is contrary to the intent and
scheme of the Act, in as much as the delinquent party is afforded a premium on
their misdemeanor, whereas the aggrieved party has to undergo a period of
pre-mediation and has to incur expenses and time, when any pre-mediation
settlement is a rarity. What is further baffling is that if a matter could
indeed be settled, the same are also settled after litigation and likelihood of
settlement in that event is relatively more. It is not understood, thus, as to
why an aggrieved party and his interest is sought to be relegated and such
party is saddled with a condition precedent of pre-mediation.
The District
courts as a matter of course, in view of the prescription of Act is dismissing
the suit and the section 12 A , in any case is not achieving its desired
objective. The fallacy is more conspicuous, in as much as , it is also noticed
that many cases were firstly filed in ordinary court i.e non-commercial courts
and even notices are issued and later on i.e after expiry of several months,
files are sent to commercial courts and yet again after several hearings, the
plaint is rejected by commercial courts for want of pre-mediation. The time
spent in this context may be several months and even years and limitation
period is not extended on this count. The misery of aggrieved party and how it
is accentuated, can therefore be fathomed, as, despite all his bona fide
efforts, claim of aggrieved party, shall now be time-barred.
On the flip
side, however, if aggrieved party seeks urgent and interim relief, though,
for the sake of nomenclature, Section 12 A of the Act shall not apply. We may
note at this stage, that in recovery of money, more often, the interim relief
is not sought. In fact, it cannot be sought, in as much as any attachment,
before judgment and decree is a rare scheme of law and shall not be attracted
in most of the recovery cases. The obvious result shall be misery heaped on the
aggrieved party , ironically, though, by a scheme of law. It is not understood
as to what are the magical charm in seeking urgent interim relief, in this
backdrop, so as dispense with the mandatory requirement of pre-mediation. The
mere filing of application for seeking urgent interim relief is supposedly, enough
to be out of the ambit of section 12-A of Commercial Courts Act. Whichever
angle, one may opt to analyse it, the inescapable inference that emerges is
that Section 12 A of the Act appears to be a superfluous appendage and is
causing more harm, then good and therefore is required to be deleted from the
statute book.
DISTRICT COMMERCIAL COURT &
ITS DEALING WITH COMMERCIAL CASES
In this
backdrop, it is to be of importance to see as to how the District Courts deal
with the matter:
(1)
The District Court relies on Ambalal
Sarabhai Enterprises Vs K.S Infraspace LLP2019 SCC Online SC 1311
The judgment of hon’ble Supreme
Court relates to filing of Commercial suit, alright, but, when the same was not
a Commercial Suit, but an ordinary suit. The Supreme Court has held that only
such suit which falls within the definition stipulated under the Commercial Act
should be treated as a suit for Commercial Courts Act and ordinary suit cannot
be treated as Commercial Suit. The
reliance of this judgment, in mandating pre-mediation is therefore is far –fetched. Perusal of concluding paragraph no. 14
recited by hon’ble Supreme Court shall make abundantly clear and shall
reinforce as regards what are stated above:
“14.In
that view it is also necessary to carefully examine and entertain only disputes
which actually answers the definition “commercial disputes” as provided under
the Act. In the instant case, as already taken note neither the agreement
between the parties refers to the nature of the immovable property being
exclusively used for trade or commerce as on the date of the agreement nor is
there any pleading to that effect in the plaint. Further the very relief sought
in the suit is for execution of the Mortgage Deed which is in the nature of
specific performance of the terms of Memorandum of Understanding without
reference to nature of the use of the immovable property in trade or commerce
as on the date of the suit. Therefore, if all these aspects are kept in view,
we are of the opinion that in the present facts the High Court was justified in
its conclusion arrived through the order dated 01.03.2019 impugned herein. The
Commercial Court shall therefore return the plaint indicating a date for its
presentation before the Court having jurisdiction”.
The relienace is therefore erroneous.
(2)
Trinity Globemerchants Pvt Ltd
Vs Manganga Sahkari Sakhar CS (Comm) 16/2020
The aforesaid order passed by
hon’ble Delhi court may be perused:
1. The
plaintiff seeks to withdraw the suit owing to the formal defect of having not
availed of pre-litigation mediation mandated before institution of a commercial
lis.
2. The application is allowed and disposed
of. CS(COMM) 16/2020
3.
The counsel for the plaintiff on enquiry states that the Registry was informed
not to issue summons to the defendant ordered to be issued on 15 th January
2020.
4.
The suit is dismissed as withdrawn with liberty to sue again on same cause of
action.
5.
However all defences shall remain open to the defendant.
6.
On request, a certificate is ordered to be issued, entitling the plaintiff to
refund of Court fees paid less Rs.50,000/-, to the plaintiff.
7.
The date of 3rd March, 2020 before the Joint Registrar is cancelled.
The bare perusal of the
aforesaid, shows that the plaint was withdrawn by the plaintiff, on his own
volition, though, notice was already issued. There is no decision as such and
therefore, the reliance on it as a ratio is erroneous.
As illustrated above, the
pre-mediation period even if excluded from the scheme of limitation, the same
could hardly aid aggrieved party (plaintiff) in as much as issues of
maintainability, some time is raised after few hearings and by that time the
limitation period may expire and there is no scheme under the Act to exclude
such period from the time period of limitation. This amount to non suiting bona
fide litigant and slamming the doors of legal recourse on aggrieved party.
In a case captioned as Bank of Baroda Vs M/s Suhail Garments CS (Comm) No.259/2020 the arguments of plaintiff was that bill for introducing section 12 A by way of amendment in the Act was introduced before the Parliament on 23.07.2018 and thereafter the amendment was passed on 01.08.2018 and it received the consent of the Hon'ble President of India on 20.08.2018 and that at the time of filing of this case, no authority was constituted which is specifically designated for conducting pre-litigation mediation. Although Section 12 A of the CC Act is not applicable to the given facts, but the plaintiff may be allowed to proceed further or the case may be returned granting opportunity/liberty to the plaintiff to first invoke pre-litigation mediation as per section 12 A of the CC Act and the Court fees may also be refunded.
It is
held that by ld District Commercial Court that the use of the words "shall
not be instituted" in section 12 A of the CC Act clearly mandates that the
suit of commercial nature cannot be filed at all, unless Pre Institution
Mediation step is followed where there is no urgent interim application for
seeking some immediate relief. Dictionary meaning of word 'instituted' is read
as 'commence or start'. Section 12 A of the Act is not a simple formality but
is a necessary condition to be followed before filing of the suit or before
commencing the proceedings itself. This provision clearly bars the institution
of the suit itself and law does not permit the plaintiff to file the case
straightway in the Court without following the mediation proceedings when no
interim urgent relief is claimed that is why the provisions itself has given
extension of the period of limitation because the period spent during such
mediation proceedings will not be counted and has to be excluded.
On such
premise the suit was dismissed.
HIGH COURTS ON SECTION 12 A
The aggrieved party had preferred
appeal before hon’ble Delhi High Court and the aforesaid judgment was set aside by hon’ble high court in CM (M)
131/2021 (captioned as Bank of Baroda Vs
M/s Suhail Garments). It is held as under:
“ ……the impugned order is set
aside and the suit is restored to its original number. The
suit shall, however, be kept in abeyance for the petitioner to explore
pre-institution mediation in terms of Section 12 A of the Commercial Courts Act
, 2015, for which purpose the petitioner shall approach the concerned Mediation
Centre within one week from today. On failure of mediation process, the suit
shall revived and shall be adjudicated upon in accordance with law.”
The hon’ble Delhi high court has,
though, has not commented about section 12 A ( Amendment Act of 2018) ,
however, it is clearly held that the dismissal of suit on the premise of
pre-suit mediation was incorrect and plaint was restored to its original
number, thereby setting aside the judgment passed by ld District Judge,
Commercial Courts, whereby the plaint was rejected and for want of mediation.
The hon’ble High Court had restored the suit to its original number and as the
appellant wanted to take recourse to mediation in the meanwhile, thus, it was
permitted.
The dust is somewhat cleared by hon’ble Delhi High
Court.
MADRAS HIGH COURT
The
hon’ble Madras High Court has comprehensively dealt with the issue in hand in A.No.35 of 2021 in C.S.No.669 of 2019,
Pronounced on 17.08.2021 and the captioned matter was - Shahi Exports Pvt Ltd. Versus Gold Star Line Limited.
The hon’ble Madras High Court had dealt
with the non-compliance of Section 12-A of Commercial Court Act. Section 12-A
of the Commercial Court Act was introduced by way of an amendment to the Act
through an ordinance promulgated by the “President of India” on 3rd May
2018. Later, in exercise of the power conferred under Section 21-A of the
amended Act, in consultation with NALSA, Ministry of Law and Justice, drafted
Rules for the Commercial Court (Pre-Institution Mediation and Settlement). This
rule was notified of 03.07.2018. The suit for recovery of money was presented
on 13th July 2019. On the date of filing the suit, Section 12-A as well as the
Rules governing the pre-suit mediation were in force.
The para no.24 & 25 of the judgment
is reproduced herein:
24. Though, the word 'shall'
in Section 12-A of the Act, sounds Pre-litigation mediation is mandatory on the
part of the plaintiff to explore Settlement before filing suit under Commercial
Court Act, the Rule framed use the word 'Shall' and makes it an optional. Also
even if one party go for pre-litigation mediation the other party may
conveniently abstain from participating in the mediation and make it a
non-starter. Even otherwise, mediator can proceed only if the both the parties
appear and give consent to participate in the mediation process. Thus, it is
very clear that on combined reading of the Commercial Courts Act and the Rules
framed thereunder, pre-litigation mediation is subject to urgency for any
interim relief and the consent of the parties.
25. “In such circumstances, the harmonious Interpretation
takes us to the irresistible conclusion that Section 12-A of the Commercial
Courts Act, is not a mandatory provision. The right to access justice which is
a Constitutional Right cannot be denied or deprived for not resorting to
mediation. The Court is not substitute to Alternative Dispute Redressal, it is
otherwise. The litigant cannot be denied the doors of justice for directly
approaching the Court without exploring the possibility of mediation. There can
be no prejudice to the defendant, if the defendant is ready for mediation, even
after Institution of the suit. Also there is no impediment either for the party
or for the Court to refer the pending matter to be resolved through mediation
or any other Alternative Dispute Redressal mechanism. This provision is meant
for the parties to work out an amicably settlement without involving in the
adversary system of litigation. The intention of this Section is not to prevent
access to justice or to aid anyone who refuse to subject himself to the
judicial process. The intention is to avoid the procedural rigor and to arrive
an amicable win-win settlement. Any other interpretation to Section 12-A of the
Act contrary to the intention will amount to miscarriage of Justice.
Moreover, it is also referred to by
madras High Court that the Hon'ble Supreme Court in Sambhaji and others -vs- Gangabai
and others reported
in (2008)
17 SCC 117,
Surinder Kumar and others
-vs- Praveen Kumari reported
in 2017 SCC
OnLine H1P 1135 and
Salem Advocate Bar
Association T.N -vs- Union of India 1reported in (2005) 6 SCC 344 has held that the procedure are handmade of justice.
Non-compl1iance of Section 12-A of Commercial Court Act, cannot be the ground
to reject the plaint. If strict interpretation of Section 12-A of Commercial
Cou1rt Act, is made, then it will lead to miscarriage of Justice as is held by
Madras High Court.
BOMBAY HIGH COURT
In a
matter captioned as Ganga Taro Vazirani vs Deepak Raheja on 16 February, 2021 , the Bombay High Court in COMM. SUMMARY SUIT NO. 972 OF 2019 has held
as under:
The above suit came to be lodged on 6th
July, 2019. After the suit was filed, the writ of summons was served on the
defendant and the plaintiff thereafter filed the above Summons for Judgment on
16th August, 2019. The defendant also filed an affidavit-in-reply
dated 11th December, 2019 to
the Summons for Judgment as well as an affidavit in sur-rejoinder dated 10th
January, 2020 to rejoinder filed by the plaintiff on 18th December, 2019. At no point of time has the
defendant ever raised the contention that the present suit cannot be instituted
because the plaintiff has not invoked the remedy of pre-institution mediation
as contemplated under section 12A of the CC Act. This argument is, for the
first time, canvassed only across the Bar, when it was argued on 9th December,
2020 and 11th December, 2020.
It was held that not having raised this issue
at the earliest point of time, the defendant is precluded from doing so. The
scope and ambit of section 12A is not to defeat a just claim of the plaintiff. Section
12A is a procedural provision and it is well settled that procedure cannot
defeat justice. The plaintiff cannot be non-suited on this ground considering
that the plea of requiring the plaintiff to invoke pre-institution mediation
has not even been raised in the pleadings and is only argued across the Bar for
the first time in December, 2020. It is further held a sunder:
“28. Even otherwise, in the facts of the
present case, I find that the provisions of section 12A have been substantially
complied with. As mentioned earlier, the scope and ambit of section 12A is to
try and see if the parties can resolve their disputes before approaching the
Court of law. If they cannot, then naturally the parties have to approach the
Court for redressal of their grievances. In the facts of the present case,
after the suit was filed, the parties did try to resolve their disputes. This
is clear from the order passed by this Court on 4th November, 2020, wherein it
was specifically recorded on behalf of the defendant that the defendant is
desirous of sending a settlement proposal to the plaintiff to see if the
disputes can be resolved. Such a proposal was, in fact, sent by the defendant
to the plaintiff and which was rejected by the plaintiff. This would,
therefore, clearly go to show that in the facts of the present case, the parties
did try to resolve their disputes amicably, albeit after the filing of the
suit, but without any success. This being the case, it would not only be
ridiculous, but highly unjust to now hold that the plaintiff ought to be
non-suited merely because he did not avail of the pre-institution mediation
process as contemplated under section 12A of the Act highly unjust to now hold
that the plaintiff ought to be non-suited merely because he did not avail of
the pre-institution mediation process as contemplated under section 12A of the Act.
Such a rigid interpretation of section
12A would, in fact, do more injustice than justice to the parties. Such an
interpretation should always be avoided. I, therefore, am clearly of the view
that in the facts of the present case, the contention raised by Mr. Bookwala
regarding dismissal of the suit for non-compliance of the provisions of section
12A is without any merit and is rejected”.
It is
further held in paragraph 15:
15. Before I deal with the scope and ambit of
section 12A of the CC Act, it would be apposite to understand why the
Commercial Courts Act, 2015 was brought into force. The Law Commission of sj.45.2019.doc
India, in its 253rd Report, had recommended the establishment of Commercial Courts
and the Commercial Division and the Commercial Appellate Division in the High
Courts for disposal of commercial disputes of a Specified Value. The purpose
for establishing such a Law was to provide for speedy disposal of commercial
disputes and which was under consideration of the Government for quite some
time. The Government felt that high valued commercial disputes involve complex
facts and questions of law, and therefore, there was a need to provide for an
independent mechanism for their early resolution. Early resolution of
commercial disputes would create a positive image to the investor world about
the independent and responsive Indian legal system. It was in these
circumstances that a Bill namely, the Commercial Courts, Commercial Division
and Commercial Appellate Division of High Courts Bill of 2015 was introduced.
As per this Bill, all suits, appeals or applications relating to commercial
disputes of a Specified Value were to be dealt with by the Commercial Courts or
the Commercial Division of the High Court. This Bill was then made into an Act,
namely, The Commercial Courts, Commercial Division and Commercial Appellate
Division of High Courts Act, 2015. Thereafter, the name of the Act was changed
to The Commercial Courts Act, 2015 w.r.e.f 03-05-2018. To put it in a nutshell,
to ensure quick resolution of commercial disputes and which is very important
in the business world, as well as to boost the image of India with the
international investor community, the aforesaid Act was brought into force. The
entire Act and the provisions thereunder are basically to achieve the aforesaid
objectives”.
22. The similarity between section 80 of the
CPC and section 12A of the CC Act are (i) that before institution of the suit,
a prescribed act has to be performed/fulfilled; and (ii) where urgent interim relief
is sought for, the suit can be instituted without performing or fulfilling the
prescribed act. Under section 80 of the CPC, the prescribed act is to serve a
notice in writing to the Government or the public officer (as the case may be)
and wait for 2 months before instituting the suit. Under section 12A of the CC
Act a suit cannot be instituted unless the plaintiff exhausts the remedy of pre-institution
mediation. Both sections allow institution of the suit without fulfilment of
the prescribed act, namely, service of notice (under section 80) or going for
pre-institution mediation in the prescribed manner (under section 12A)
respectively, where the suit contemplates urgent interim relief. The only
difference is that sj.45.2019.doc under section 80 of the CPC the suit has to
be instituted with the leave of the Court [see section 80(2)].
25. As can be seen from the aforesaid two
decisions, though serving a notice under section 80 of the CPC is mandatory,
the same is capable of being waived. Naturally, whether there is a waiver or
not, would depend on the facts and circumstances of the case. In fact, the plea
for want of notice under section 80, and which is a clear bar to the
institution of proceedings against the Government or a public officer, must be taken
at the earliest possible opportunity and must be specifically pleaded. Where such
a plea is taken by the defendant at a very late stage of the suit and at a time
when the plaintiff would be precluded by the law of limitation from bringing a
further suit against the defendant, the defendant must be deemed to have waived
the privilege of the notice.
MADHYA PRADEH HIGH COURT
Madhya Pradesh High Court in GSD
Constructions Pvt. Ltd. Vs. Balaji Febtech Engineering Pvt. Ltd. (MANU/MP/0451/(2019)
had after hearing the parties and going through the record, directed the
Trial Court to hear the applications filed by the appellants and proceed ahead
in the matter without forcing the appellants to invoke the remedy of pre-institution
mediation. The ld Trial Court, taking into account the provisions of section
12A, returned the Plaint by directing the plaintiff to approach the authority
as per the provisions of section 12A(1) of the CC Act by exhausting the remedy
of pre-institution mediation. This order was challenged before the Madhya
Pradesh High Court.
This, it clearly emerges that the scope and
ambit of section 12A is held to be not to defeat a just claim of the plaintiff.
As mentioned earlier, Section 12A of the Act is a procedural provision and it
is well settled that procedure cannot defeat justice. I am, therefore, clearly
of the view that in the facts of the present case, the plaintiff cannot be
non-suited on this ground considering that the plea of requiring the plaintiff
to invoke pre-institution mediation. Moreover, if such a plea is not even
raised in the pleadings, the same cannot be argued later.
In this context Kailash Vs Nankhu & Ors (2005) 4 SCC 480 is of pertinence, as
the Amended Order VIII Rule 1 of Code of Civil Procedure 2002 relating to
mandatory filing of written statement within 30 days and in any event within 90
days held to be directory by the Supreme Court and with a view to do
substantive justice it was held that the delay in filing written statement in
apt case can be condoned.
CONCLUSION
The aforesaid discussion shall clearly
reflect that the Section 12 A of the Act which was inserted in the Commercial
Courts Act 2015 by way of amendment in 2018, is though. aimed at providing a
ladder. before institution of suit with a view to explore settlement, but, in
essence, this has resulted into putting a fetter on the claim of plaintiff and
the delinquent defendants willy nilly takes the advantage of the scheme. More
often, the plaintiff takes up the issue of their claim with prospective
defendants, before raising claim in courts of law and the aggrieved party
approaches the court when there is no possibility of settlement. Thus, to put
the plaintiff on the settlement mode in the garb of section 12 A of the Act and
to mandate them to part with further money and await the outcome for about Five
(5) months is akin to harassing the bona fide litigant and aggrieved party.
Moreover, our system, as is often observed receives a plaint and may treat that
non commercial. Even summons/notices are issued by the court, until one day,
the matter is found to be of commercial nature and it is sent to the Commercial
Courts. The Commercial Court then comes with the need of pre-mediation and
rejects the plaint on that premise alone. Ironically, there are cases, where
the defendants are not traceable then too, the futile exercise of pre-mediation
is directed by the District Commercial Courts and plaint is rejected. There are
also cases, where the defendants who joins the proceedings after notice and
when the matter is subsequently transferred to Commercial Courts and even when
defendants clearly states that they are not willing for pre-mediation, still,
parties are directed to go for pre-mediation in view of trap of Section 12 A of
the Act. In the meanwhile, time consumed in the process before courts, are not
excluded from limitation period and the claim of the aggrieved party could be
time barred. The prejudiced caused to the aggrieved party by effectively non
suiting them is thus evident. The hon’ble Delhi High Court, Bombay High Court
and Madhya Pradesh High Court has in several cases directed the restoration of
suit in original number so that law of limitation does not truncate or close
the case of plaintiff, but the bottom line is why the plaintiff is relegated to
suffer the peril, emanating from a provision i.e Section 12 A of the Act, which
is ill devised and is enacted being oblivious to the ground realities. The
provision is superfluous and is causing more harm than good to bona fide
litigants, whereas it in effect, accord premium to the misdeeds of defendants.
The provisions therefore need not remain any more in the statute book. The
hon’ble High Courts, while setting aside the respective orders by Commercial
Courts and restoring the suit to original number reflects that anguish. The
relook on Section 12 A of the Act is therefore, the need of the hour, and
sooner it is done, better.
Anil K Khaware
Founder
& Sr Associate
Societylawandjustice.com
-------
No comments:
Post a Comment