Tuesday, August 24, 2021

PRE-MEDIATION AS PER ARTICLE-12-A COMMERCIAL COURTS ACT-NOT MANDATORY

 


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

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