The Delhi High Court observed that the procedural formalities of the Code of Civil Procedure are “intended to facilitate litigation” by prescribing the course to be followed and not to be “abused as an instrument of oppression” to defeat a valid proceeding. engaged.
Judge C Hari Shankar dealt with a plea challenging the orders dated August 16, 2021 and February 2, 2022, made by the District Judge (Commercial Courts) in a civil action which was preferred by the Respondent against the Petitioner.
The lawsuit was filed as a commercial action under the provisions of the Code of Civil Procedure 1908 (CCP), as amended by the Commercial Courts Act 2015.
Petitioner, as a defendant in the lawsuit, filed an application pursuant to Ordinance VII, Rule 11 of the CPC, requesting the dismissal of the lawsuit on the ground that it was filed in violation of s. 12A of the Commercial Courts Act, which required the plaintiff to use pre-institutional mediation before going to court.
The additional district judge observed that it was impossible for the respondent to have exhausted the protocol provided by art. 12A before filing the civil suit and dismissed the petitioner’s objection to the maintainability of the suit.
On review, the Commercial Court found that there was no apparent error on the record in its earlier order dated August 16, 2021 and therefore the request for review was without merit.
The High Court held that it would be absurd to consider that, as no pre-institutional mediation was in place at the time the respondent lodged its complaint, the complaint should have been referred to the respondent for representation after the protocol because the pre-institutional mediation was in place.
She held that the return of a prosecution can only be done on the grounds provided by Order VII Rule 10 of the CPC, and not because there was no mechanism in place for pre-institutional mediation. .
“The Court is reinforced in this impression by the fact that, despite the order dated August 16, 2021 of the learned commercial court having clarified this position unequivocally, the applicant not only preferred a request for review, which further six months to make up his mind, but subsequently dragged the case to this Court on the basis of Article 227 of the Constitution of India, “ he noted.
The Court added “The procedural formalities of the CPP aim to facilitate litigation by outlining, in clear terms, the procedure to be followed, and not to be abused as an instrument of oppression, to defeat the proceedings validly initiated. This Court, therefore, while confirming the impugned orders made by the learned Commercial Court, disapproves of the applicant’s attitude in unequivocal terms.”
Accordingly, the petition was dismissed with costs of Rs. 11,000 to be paid by the petitioner by crossed check or sight draft in favor of the respondent.
Case title: EXTREME COATING PRIVATE LTD v. JOTUN INDIA PRIVATE LTD.
Citation: 2022 LiveLaw (Del) 774
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