# India Oil Corporation Ltd. Lucknow v. Commercial Court-I, Lko. & Anr

- **Citation:** (2023) 5 ILRA 250
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-12
- **Case number:** Matters Under Article 227 No. 1524 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/india-oil-corporation-ltd-lucknow-v-commercial-court-i-lko-anr-50195
- **Pages:** 6

## Headnote

A. Commercial Law - Urgent interim relief
- Commercial Courts Act, 2015- Section
12(A)(1)
-
Contemplation
of
urgent
interim relief for the purpose of Section 12
A of the Commercial Courts Act 2015 is to
be considered by the court concerned only
as per averments made in plaint or
temporary injunction application. (Para 18)

B. It is not solely the plaintiff who is the
only arbiter of urgent interim relief, but it
is also the Court concerned which has to
look into the factor of urgent interim relief
in terms of relief sought in plaint or in the
application for temporary injunction. (Para
17)

A suit which does not 'contemplate' any urgent
interim relief under the Act cannot be instituted
unless the plaintiff exhausts remedy of pre
institution mediation in terms of Section 12 A of
the Act. For a suit to be maintainable without
the pre institution mediation and settlement as
such, would require that it contemplates any
urgent interim relief. The word 'contemplate'
would be quite relevant for the purposes of
examining the provisions and applicability of
Section 12 A of the Act. (Para 16)

C. The aspect as to whether a suit has
been filed after a considerable delay,
would not be a criteria required to
determine urgent interim relief. There may
be instances when an order of termination has
been passed but is not enforced for a certain
length of time and it is only its enforcement that
would require filing of a suit, which would thus
contemplate urgent interim relief being sought
for in the plaint. (Para 16)

D. Words & Phrases - 'Contemplate' - The
word 'contemplate' would necessarily mean
examination of relief prayed for in the suit as
well as urgency shown in the plaint w.r.t. such
relief being sought. The contemplation of urgent
interim relief as such, would be dependant on
the ground of said interim relief. For the
purposes of waiver of mandatory provision of
Section 12A as such, it is for the Court to
determine contemplation of urgent interim
relief. (Para 16)

In the present facts and circumstances although
the suit has been filed after almost one and a
half months of the termination of contract but
since it indicates urgent interim relief against
the clause of termination of contract, being
invoked against plaintiff, therefore when the
plaint as such contemplates urgent interim relief
and therefore mandatory provisions pertaining
to pre institution mediation have been rightly
waived by the Commercial Court. As such, no
exception can be taken to the order impugned.
(Para 19)
5 All. India Oil Corportion Ltd. Lucknow Vs. Commercial Court-I, Lko. & Anr.
251
Writ petition dismissed. (E-4)

Precedent followed:

## Text

250 INDIAN LAW REPORTS ALLAHABAD SERIES
to the plaintiff then it was in the fitness of
things that the plaintiffs should also get
possession over the 1/3rd portion of the
house which was sold by the defendants no.
7 and 8 to the plaintiffs. However, since the
First Appellate Court had exceeded its
jurisdiction by interfering with the decree
which
had
attained
finality
vis-a-vis
defendants no. 9 to 10, the decree has been
modified.

15. With the above observations, the
Second Appeal is partly allowed.
----------
(2023) 5 ILRA 250
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.05.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matters Under Article 227 No. 1524 of 2023

India Oil Corporation Ltd. Lucknow
 ...Petitioner
Versus
Commercial Court-I, Lko. & Anr.
 ...Respondents

Counsel for the Petitioner:
Ashok Kumar Singh

Counsel for the Respondents:
Siddharth Nandwani

A. Commercial Law - Urgent interim relief
- Commercial Courts Act, 2015- Section
12(A)(1)
-
Contemplation
of
urgent
interim relief for the purpose of Section 12
A of the Commercial Courts Act 2015 is to
be considered by the court concerned only
as per averments made in plaint or
temporary injunction application. (Para 18)

B. It is not solely the plaintiff who is the
only arbiter of urgent interim relief, but it
is also the Court concerned which has to
look into the factor of urgent interim relief
in terms of relief sought in plaint or in the
application for temporary injunction. (Para
17)

A suit which does not 'contemplate' any urgent
interim relief under the Act cannot be instituted
unless the plaintiff exhausts remedy of pre
institution mediation in terms of Section 12 A of
the Act. For a suit to be maintainable without
the pre institution mediation and settlement as
such, would require that it contemplates any
urgent interim relief. The word 'contemplate'
would be quite relevant for the purposes of
examining the provisions and applicability of
Section 12 A of the Act. (Para 16)

C. The aspect as to whether a suit has
been filed after a considerable delay,
would not be a criteria required to
determine urgent interim relief. There may
be instances when an order of termination has
been passed but is not enforced for a certain
length of time and it is only its enforcement that
would require filing of a suit, which would thus
contemplate urgent interim relief being sought
for in the plaint. (Para 16)

D. Words & Phrases - 'Contemplate' - The
word 'contemplate' would necessarily mean
examination of relief prayed for in the suit as
well as urgency shown in the plaint w.r.t. such
relief being sought. The contemplation of urgent
interim relief as such, would be dependant on
the ground of said interim relief. For the
purposes of waiver of mandatory provision of
Section 12A as such, it is for the Court to
determine contemplation of urgent interim
relief. (Para 16)

In the present facts and circumstances although
the suit has been filed after almost one and a
half months of the termination of contract but
since it indicates urgent interim relief against
the clause of termination of contract, being
invoked against plaintiff, therefore when the
plaint as such contemplates urgent interim relief
and therefore mandatory provisions pertaining
to pre institution mediation have been rightly
waived by the Commercial Court. As such, no
exception can be taken to the order impugned.
(Para 19)
5 All. India Oil Corportion Ltd. Lucknow Vs. Commercial Court-I, Lko. & Anr.
251
Writ petition dismissed. (E-4)

Precedent followed:

1. M/s Patil Automation Pvt. Ltd. & ors. Vs
Rakheja Engineers Pvt. Ltd, 2022 (10) SCC (1)
(Para 5)

2.
Chandra
Kishore
Chaurasiya
Vs
R.A.
Perfumery Works Pvt. Ltd, (2022/DHC/004454
decided on 27.10.2022)

Precedent distinguished:

M/s Microlabs Ltd. Vs Mr. A. Santosh, C.S.,
(Comm. Div No. 185 of 2022) (Para 5)

Present petition challenges the order
dated 13.03.2023, passed by Commercial
Court rejecting preliminary objections
raised by petitioner/defendant regarding
maintainability of suit on the ground that
pre-institution remedy of mediation as
contemplated
u/s
12(A)(1)
of
the
Commercial Courts Act 2015 having not
been undertaken, without which suit in
terms of the aforesaid provisions is
barred.

(Delivered by Hon'ble Manish Mathur, J.)

1. Supplementary affidavit filed on
behalf of opposite party no. 2 is taken on
record.

2. Heard Mr. Ashok Kumar Singh,
learned counsel for petitioner and Mr.
Siddharth Nandwani, learned counsel for
opposite party no. 2.

3. Notice to opposite party no. 1
stands dispensed with as it is proforma
party.

4. Petition under Article 227 of the
Constitution of India has been filed raising
challenge to order dated 13.03.2023 passed
by the Commercial Court in Civil Suit No.
275
of
2022
rejecting
preliminary
objections raised by petitioner/defendant
regarding maintainability of suit on the
ground that pre-institution remedy of
mediation as contemplated under Section
12 (A) (1) of the Commercial Courts Act
2015 having not been undertaken, without
which suit in terms of the aforesaid
provisions is barred.

5. Learned counsel for petitioner has
placed reliance on judgment rendered by
Hon'ble Supreme Court in the case of M/s.
Patil Automation Private Limited and
others versus Rakheja Engineers Private
Limited reported in 2022 (10) SCC (1) to
submit that the provisions of Section 12
A(1) of the aforesaid act have been held to
be mandatory in nature and therefore, any
suit filed before the Commercial Court in
terms of the Act of 2015 without availing
the remedy of Section 12 A of pre
institution mediation is liable to be rejected.
It is further submitted that in the present
case, a contract was entered into between
the parties on 01.12.2021 with regard to
supply, transportation, installation and
commissioning of new unipols at the retail
outlets/KSK's of the petitioner. It is
submitted that due to unfulfilment of terms
and conditions of contract, show cause
notice was issued to the opposite party no.
2 and after considering its reply, the
contract was terminated on 25.10.2022. It is
submitted
that
suit
challenging
the
termination order has been filed only on
08.12.2022 and as such, there is no
question of any urgency in the case due to
which waiver of provisions of Section 12
A(1) of the Act of 2015 would not be
required. It is submitted that it was in these
circumstances that preliminary objections
were filed before the Court concerned and
have been rejected by means of impugned
order on the ground that since the plaintiff
has sought urgent interim relief, therefore,
252 INDIAN LAW REPORTS ALLAHABAD SERIES
the suit would not be barred in terms of
Section 12 A of the Act. Learned counsel
has placed reliance on judgment rendered
by High Court of Madras in the case of M/s
Microlabs Limited versus Mr. A.Santosh
, C.S (Comm. Div) No. 185 of 2022 to
buttress his submissions.

6. Learned counsel appearing for
opposite
party
no.
2
has
refuted
submissions advanced by learned counsel
for petitioner with the submission that
although the contract was terminated on
08.12.2022 but the same has also invoked
provisions of clause 6.13 (b) of the contract
pertaining to price adjustments for delays
with the submissions that in pursuance of
termination of contract, further action has
been contemplated against the answering
opposite party including forfeiting of
security
deposits,
holiday
listing
or
initiating any other penal action as deemed
fit by Indian Oil Corporation/petitioner. It
is thus submitted that it was only when
the petitioner started initiating action
against the opposite party no. 2 that the
suit was filed along with an application
for temporary injunction for restraining
the petitioner/defendant from invoking
the termination letter. Learned counsel
has adverted to judgment rendered in the
case of M/s. Patil Automation Private
Limited and others versus Rakheja
Engineers Private Limited reported in
2022 (10) SCC (1) as well as judgment of
Division Bench of the Delhi High Court
in
the
case
of
Chandra
Kishor
Chaurasiya versus R A Perfumery
Works
Private
Limited
(2022/DHC/004454
decided
on
27.10.2022) to buttress his submissions.

7. In view of submissions advanced,
the following question would require to be
adjudicated:

Whether contemplation of urgent
interim relief as envisaged under Section
12 A of the Commercial Courts Act 2015
requires consideration by the Court only as
per
averments
made
in
the
plaint/Temporary Injunction application or
other incidental aspects as well?

8. Upon consideration of submissions
advanced by learned counsel for parties and
perusal of material on record, it is evident
and undisputed that termination order was
issued to the answering opposite party on
25.10.2022 whereafter suit was filed on
08.12.2022 along with an application for
grant
of
temporary
injunction.
The
petitioner had filed preliminary objection
regarding maintainability of suit since pre
institution mediation as contemplated under
Section 12 A of the Act of 2015 was not
availed of. The said application has been
rejected by means of impugned order
holding that since plaintiff has sought
urgent
interim
relief,
necessity
for
exhausting the remedy of pre institution
mediation would not bar suit proceedings.
It has also been held that the use of words
'contemplate any urgent interim relief ' are
used to qualify the category of a suit which
is determined solely on the frame of plaint
and relief sought and since plaintiff is the
sole determinant of the pleadings and relief
sought, it was held that suit involves urgent
interim relief due to which it would not be
barred in terms of Section 12 A of the Act
of 2015.

9. For the purpose of adjudication of
aforesaid question, it would be necessary to
refer to the termination letter dated
25.10.2022
which
clearly
stipulates
invocation of clause 6.13 (b) of the special
terms and conditions of contract of tender
document
which
has
been
indicated
hereinabove. The plaint filed by answering
5 All. India Oil Corportion Ltd. Lucknow Vs. Commercial Court-I, Lko. & Anr.
253
opposite party has sought the relief of
declaration of termination letter dated
25.10.2022 as null and void with a decree
being sought for permanent and mandatory
injunction seeking to restrain the defendant
from
terminating
the
contract
dated
01.12.2021 and further a decree injuncting
the defendant, their assigns, representatives
etc from invoking the termination letter
dated 25.10.2022. An application for
temporary injunction has also been filed
with the prayer to restrain the defendant,
their assigns etc from invoking the
termination letter dated 25.10.2022.

10. Clearly, the prayer as made not
only in the plaint but also in the application
for temporary injunction is to the effect that
the
defendants
should
be
restrained/injuncted from invoking the
termination letter dated 25.10.2022. The
aforesaid termination letter clearly makes
reference to clause 6.13 of the general
conditions of contract with clause (b)
pertaining to other action to be taken
against the vendor including forfeiting of
security
deposits,
holiday
listing
or
initiating any other penal action as deemed
fit by the Indian Oil Corporation (I.O.C).
From the prayer so made and especially the
reference made to clause 6.13 (b) of the
general terms of contract, urgency is clearly
borne out.

11. However, learned counsel for
petitioner has specifically adverted to the
fact that the plaint has been filed after
almost one and a half months of issuance of
the termination letter, which in itself does
not indicate any urgency in the case to
waive of the mandatory condition of
Section 12 A of the Act of 2015.

12. For proper appreciation of the
aforesaid submissions, it is necessary to
advert to the judgment rendered in the case
of Patil Automation (Supra) in which the
relevant paragraphs are as follows:

88. "In Section 12 A, the bar of
institution of the suit is applicable only in
case
in
which
plaintiff
does
not
comtenplate urgent interim relief. The
situation is akin to what is contemplated in
Section 80(1) CPC. In other words, the suit
under the Act which does not contemplate
urgent interim relief is like a suit covered
by Section 80 (1) CPC which does not
project the need for any urgent or interim
relief. In regard to a suit covered under
Section 12-A of the Commercial Courts Act,
namely, in a suit where interim relif is not
contemplated, there can be no substantial
compliance by way of post institution
reference to mediation. The argument of the
plaintiff overlooks the object apart from the
language used besides the design and
scheme of the law. It will, if accepted, lead
to courts also spending their invaluable
time on such matters which follow from
adjournments, objections and hearings.
There is not need to adopt such a course."

99.1 " The Act did not originally
contain Section 12-A. It is by amendment in
the year 2018 that Section 12-A was
inserted. The Statement of Objects and
Reasons are explicit that Section 12-A 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 provisions 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."
254 INDIAN LAW REPORTS ALLAHABAD SERIES

13. In the case of M/s Microlabs
Limited, High Court at Madras has held
that since suit was presented nearly four
months after the service of cease and desist
notice and no steps (Section 12 A) was
taken during this period, it was held that
there was no urgency clause for waiving of
provisions of Section 12 A of the act.

14. On the other hand, the issue has
also been adverted to by High Court at
Delhi in the case of Chandra Kishor
Chaurasiya
(supra)
in
which
after
examining the mandate of law of case in
Patil Automation Private Limited (supra)
and the provisions of Section 12 A of the
Act of 2015, it has been held that the
question whether plaintiff desires any
urgent relief is to be decided solely by the
plaintiff while instituting a suit and it is
not
relevant
to
determine
whether
plaintiff was required to exhaust the
remedy of pre institution mediation since
grant of urgent interim relief is not
contingent on whether the Court accedes
to the plaintiff's request for interim relief
or not. It has been held that the
terminology of Section 12 A is used to
qualify category of a suit which is to be
determined solely on the frame of plaint
and relief sought.

15. With regard to question required to
be determined, it would be apposite to refer
to Section 12 A of the Act, which is as
follows:

'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
Goverenment.'

16. Upon evaluation of aforesaid
judgments and particularly the terminology
used in Section 12 A of the Act of 2015, it
is evident that a suit which does not
'contemplate' any urgent interim relief
under the Act cannot be instituted unless
the plaintiff exhausts remedy of pre
institution mediation in terms of Section 12
A of the Act. For a suit to be maintainable
without the pre institution mediation and
settlement as such, would require that it
contemplates any urgent interim relief. In
the considered opinion of this Court, the
word 'contemplate' would be quite relevant
for
the
purposes
of
examining
the
provisions and applicability of Section 12 A
of the Act. The word 'contemplate' would
necessarily mean examination of relief
prayed for in the suit as well as urgency
shown in the plaint with regard to such
relief being sought. The contemplation of
urgent interim relief as such, would be
dependant on the ground of said interim
relief. For the purposes of waiver of
mandatory provision of Section 12 A of the
act of 2015 as such, it is for the Court to
determine contemplation of urgent interim
relief. The aspect as to whether a suit has
been filed after a considerable delay, would
not be a criteria required to determine
urgent interim relief. There may be
instances when an order of termination has
been passed but is not enforced for a
certain length of time and it is only its
enforcement that would require filing of a
suit, which would thus contemplate urgent
interim relief being sought for in the plaint.

17. To that extent, this Court is in
respectful agreement with the judgment
rendered by the High Court at Delhi.
Further, in the considered opinion of this
Court, it is not solely the plaintiff who is
the only arbiter of urgent interim relief, but
it is also the Court concerned which has to
5 All. Ramesh Duggal @ Pappu Vs. Pt. Ram Shanker Mishra Trust Chief Office, Kanpur Nagar 255
look into the factor of urgent interim relief
in terms of relief sought in plaint or in the
application for temporary injunction.

18. In view of discussion made
hereinabove,
the
question
framed
is
answered that contemplation of urgent
interim relief for the purpose of Section 12
A of the Commercial Courts Act 2015 is to
be considered by the court concerned only
as per averments made in plaint or
temporary injunction application.

19. Upon applicability of the aforesaid
judgments and discussions, in the present
facts and circumstances although the suit
has been filed after almost one and a half
months of the termination of contract but
since it indicates urgent interim relief
particularly in view of clause 6.13 being
invoked against plaintiff, in the considered
opinion of this Court, the plaint as such
contemplates urgent interim relief and
therefore mandatory provisions pertaining
to pre institution mediation have been
rightly waived by the Commercial Court.
As such, no exception can be taken to the
order impugned.

20. Resultantly, the petition being
devoid of merit is dismissed. Parties to
bear their own cost.
----------
(2023) 5 ILRA 255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 2658 of 2023
(CIVIL)

Ramesh Duggal @ Pappu ...Petitioner
Versus
Pt. Ram Shanker Mishra Trust Chief Office,
Kanpur Nagar ...Respondent

Counsel for the Petitioner:
Sri Shesh Kumar Srivastava

Counsel for the Respondents:
Sri Shantanu Srivastava

A. Civil Law - Amendment of pleadings -
Ejectment and Recovery of damages -
Provincial Small Cause Courts Act, 1887 -
Sections
26
&
25
-
Code
of
Civil
Procedure,1908 - Order VI Rule 17 - Due
diligence is a very important factor while
allowing amendment application u/Order
VI Rule 17 of CPC and applicant has to
prove that he has made all possible
efforts, but even after that, he could not
know about the documents or facts which
are
most
relevant
to
decide
the
controversy. In case documents or facts
are available or within the knowledge of
petitioner, at any stage, if any application
is filed, same cannot be allowed as it
would not fulfil the parameter of due
diligence as provided in Order VI Rule 17
of CPC. (Para 23)

The conduct of petitioner-defendant clearly
shows that trust deed was very well present
from the date of filing of written statement
and as per admission of petitioner-defendant,
it was in his knowledge from 07.12.2017, but
he has never filed any application u/Order VI
Rule 17 of CPC, which shows that there is
absolute lack of due diligence. In fact
contrary to that, having knowledge of each
and every facts, petitioner-defendant has
never raised before the court by the way of
written statement or application u/Order VI
Rule 17 of CPC and once the suit has been
decided against him, with an ulterior
motive, an application has been filed.
Therefore, this Court is of the view that
such amendment application doesn't fulfill
the condition of Order VI Rule 17 of CPC as
it is having absolute lack of due diligence
rather it is a case of negligence as
petitioner-defendant was sleeping over the
matter
for
a
long
time
without
any
explanation. (Para 17, 18)