Order 7 Rule 11 In CPC, Very Enthusiastic Moment in the Court

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[00:00:00]If I may be permitted to make a humble submission, please my lords. My lords are blessed. In fact, the writ petition is not maintainable my lords. The reason being Lunch hour is over. Yes, my lords.

[00:00:10]>> [laughter] >> My lords, give me sufficient time to read the file as well.

[00:00:15]If I may bring to my lords' attention >> Why you not maintainable? Yes, my lords.

[00:00:18]If my lords may kindly peruse, in page number 42, my lords.

[00:00:25]The order, my lords.

[00:00:26]Yes, sir. The last paragraph, I am number five, filed by the plaintiff is allowed.

[00:00:31]Exercising power under order seven rule 11D of CPC read with section or with order eight rule 6A4 of CPC, the counter claim filed by the defendants is hereby rejected as barred by law under section 12A of the Commercial Courts Act since it is filed without completing the mandatory requirement of pre-institution mediation. My lords, which means order seven rule 11 application is allowed. An appeal has to be filed.

[00:00:55]Commercial law is allowed. Yes, my lords.

[00:01:00]My lords, with that I agree. My lords are also well aware of the fact Jurisdiction Vishweshwaragowda Yes, Sunil Kumar. My lord, now the the application that they have filed is under my lord's order order eight rule 6C. That is not under order seven rule 11 application.

[00:01:16]He Our accurate application to remove the counter claim under order eight rule 6C, my lord.

[00:01:21]My lord, how was it passed under order seven rule 11? That was at para number 18, my lords.

[00:01:28]Para number 18, I'm waiting for my What an application under order seven rule 11? It is not, my lords. It is an application under order eight rule 6C, but the trial court, my lords, at para number 18, if I may bring to my lords' attention at in page number 28 >> illegality which I should interfere.

[00:01:44]I agree, my lords, but only humble submission is this. with the noise? No.

[00:01:47]I feel I have to bow down to my lords' observations. But I may be permitted to also uh submit, my lords, wherein You submit, sir. Please, my Yes. My lords, this honorable court is very well aware of the fact that the non-mentioning of a provision, correct provision should not disentitle me from seeking the relief sought for. If I would seeking an order 7 rule 11 rejection is the same as order 8 rule 6C, which is also rejection of the counter claim itself. And moreover, at para number 18, if my lords would kindly peruse the highlighted portion, my lords.

[00:02:23]I think page number 28.

[00:02:31]The observation, my lords, is that therefore it is clear that even in respect of a counter claim, the court can exercise its power under order 7 rule 11 of CPC to reject the counter claim in case it is barred by law.

[00:02:45]Despite whether I invoke order 7 rule 11 or not, my lords, the court has an inherent power when the suit when the counter claim itself is not maintainable when it's barred by law.

[00:02:57]Counter claim was not It's not that it's meant or because of >> That way. Yes, my lords. Because of section 12A of the Commercial Courts Act.

[00:03:05]Let them file an appeal, my lords. Why, sir?

[00:03:07]>> Because the writ petition is not maintainable, my lords.

[00:03:10]The application is filed, my lords, under order 8 rule 6C. And the learned judge, as lordship rightly observed, he makes an error there. He goes into different jurisdiction or under order 7 rule 11. Now, my lord, along with the written statement, I filed my counter claim. There's no procedure prescribed even under the Commercial Courts Act states that for a counter claim you'll have to go back there, finish your process, and come back and file written statement. But that will be against the statute itself. And next, the very purpose of the Commercial Courts Act for a speedy disposal. Now, if they want me to relegate for another 4 months for a again mediation process. In very initial process, we both have appeared. It is a failure. And two judgments >> No, if I permit him another half an hour to drink coffee and come, he'll come up with another point.

[00:03:50]>> [laughter] >> I have to be humble, my lords.

[00:03:54]But at least No judgments which I produced in that judgment. The petitioner is before this court calling in question an order dated What date is that? Order dated 25/1/2025 by which the counter claim registered by the petitioner comes to be rejected by the concerned court on the score that the counter claim has not preceded by a pre-institution mediation and as obtaining under Section 12A of the Commercial Courts Act 2015 hereinafter referred to as the Act for short.

[00:04:30]Heard so-and-so.

[00:04:32]The respondent is the plaintiff. The petitioners the defendants.

[00:04:39]The plaintiff institutes a commercial OS in [clears throat] commercial OS 1127 of 2024 seeking recovery of money alone. Okay.

[00:04:49]You know my lord. He's seeking arrears of rent as well as eviction my lord. No, no, only arrears of rent. No, no.

[00:04:53]Seeking arrears of rent from the hands of the defendants.

[00:04:57]The defendants uh hands of the defendant. At the time when the after the institution of the commercial OS and before sorry, before the institution before the commercial OS could be registered, it transpires that the parties were directed to complete the process with regard to pre-institution mediation as obtaining under Section 12A of the commercial of the Act. After the said failure of the mediation, the concerned court registers commercial OS 1127 of 2024.

[00:05:31]Uh the the respondent the petitioners defendants then register a counter claim.

[00:05:38]The concerned court uh was of the opinion that another 3 months should be spent in the pre-institution mediation Quay the counter claim and therefore answers an application filed by the plaintiff under order orders order eight rule six C order eight rule six six C of the CPC seeking re seeking the plane to be kept in the counter claim to be kept in a balance or rejected as the case would be until the pre institution mediation as obtaining in section 12 A would be completed.

[00:06:12]The rejection of the plane on this score that the pre institution mediation has not taken place Quay the counter claim the is what has driven the defendants to this court in the subject petition. The learned counsel heads to nil Kumar appearing for the petitioner would vehemently contend that the process of mediation did take place prior to the registration of the commercial OS as obtaining under section 12 of the act. Therefore all over again the counter claim when the counter claim was registered not with standing the fact that it is an independent suit by itself need not refer the matter for need not refer the matter for pre institution mediation as obtaining under section 12 A he would submit that the very process the very object behind institution of the commercial courts was expeditious disposal. The petty petitioner has petitioner should submit the learned counsel would submit that the petitioners have filed the written statement along with the counter claim.

[00:07:15]Now after filing of the written statement and sending the parties to mediation all over again is not the purport of the act. He would seek to place reliance upon two judgments of the Calcutta High Court one of the Calcutta High Court and the other Delhi High Court. And the other of the High Court of Delhi.

[00:07:35]Per contra the learned counsel appearing for the respondent would refute the submission in contending that the counter claim so registered by the respond by the defendant was in itself a suit and if it is to be treated as an independent suit section 12 compliance with section 12A is mandatory. He would seek to place reliance upon the judgment of the High Court of Delhi in Saroj Tandon Aditya Birla Aditya Birla Fashion Aditya Birla Fashion so and so.

[00:08:07]Aditya Birla Fashion so and so.

[00:08:09]Reported in 2024 SCC online Delhi 6099.

[00:08:21]>> [snorts] >> The to buttress his submission he would further contend the judgment in the case of Aditya Birla versus Saroj Tandon was tossed before the Apex Court only to be rejected in limine. He would thus contend that it is the affirmation of the Apex Court of the finding rendered by the High Court of Delhi and therefore it is to be followed.

[00:08:42]I have given my sons therefore narrated facts are not in dispute the issue now lies in a narrow compass as to whether the narrow compass the issue would be whether on a counter claim registered by the defendant section 12A should all over before all over be followed section 12A should be followed all over again.

[00:09:04]And notwithstanding the fact that section 12A had been complied when prior to the institution of the suit.

[00:09:11]The afore narrated facts links a link in the chain of events and the facts link in the chain of events are not in dispute. Section 12A of the commercial court act of the act reads as follows.

[00:09:23]Section 12A mandates that the that parties before the institution of the suit should be mandatorily referred for mediation which is mediation which would be pre-institution mediation within bracket PIM. It is not in dispute when the respondent wanted to institute the suit, the parties were referred to PIM and after the medi failure of mediation, the aforesaid commercial OS is registered. Therefore, it is a fact where both the parties parties being the same have been media have already been media already mediated and have failed in such mediation. The defendants filed written statement along with their counter claim.

[00:10:03]The The plaintiff now uses this to file an application and order eight rule six C seeking plain to be kept in the counter claim to be kept in a balance or rejected. The reason is reason that the council council projected before the concerned court was that the pre-institution mediation great the counter claim has not happened and therefore the counter claim should not be accepted.

[00:10:29]The concerned court exceeds to the exceeds to the contention of the respondent and rejects the counter claim on an all together different provision IE invoking order seven rule 11 of the CPC and the application was never filed under order seven rule 11 of the CPC.

[00:10:44]The next para.

[00:10:46]The learned the reference made by the learned counsel for the petitioner respondent to buttress his submission in Aditya Birla fashion and retail so and so has been subsequently considered by the High Court of Delhi and High Court of Calcutta respectively to be distinguished. The two judgments that distinguish the earlier judgment are as follows. The the High Court of Delhi and Calcutta in take a common view that the purpose of the commercial establishment of the commercial court is for expeditious disposal within an outer limit of one year.

[00:11:20]Once the pre-institution mediation has happened, when the plaintiff wanted to institute the suit, need not happen all over again notwithstanding the fact that the counter claim is an independent suit by itself. Therefore, the both the courts have after considering the both the courts after considering the latest case.

[00:11:44]Both the courts after considering the issue have held as follows.

[00:11:52]One second.

[00:11:55]Uh The division bench of the High Court of Delhi in 2024 SCC online Delhi 9272 has held as follows para 21 to 26.1.

[00:12:07]The division bench holds that the that notwithstanding the fact that the counter claim is an independent suit the pre-institution mediation on on a counter claim need not be uh held all over again as it was preceded before the institution of the suit. The same view is taken by the High Court High Court of Calcutta in in so and so para eight and nine totally yes.

[00:12:44]The submission of the learned counsel for the respondent now is that the judgment of the High Court of Delhi uh against the judgment of the High Court of Delhi the Apex Court against the judgment of the High Court of Delhi the Apex Court has not interfered. Not interfered in the sense that it is the SLP is dismissed in limine. He would seek to buttress his submission by placing reliance upon the judgment of the Apex Court in the case of Balbir Singh versus so and so.

[00:13:18]The principle so laid down by the Apex Court in Balbir Singh Hello, there can be no qualm about the principle so laid down by the Apex Court in the case of Balbir Singh.

[00:13:31]Para 34 therein reads as follows.

[00:13:34]Para 34 would indicate that the doctrine of merger had already taken place in this case before it while the uh regular second appeal before the High Court had affirmed the view of the concerned court. Therefore, that doctrine having the the doctrine of merger having taken place whether the Apex Court has dismissed the SLP on in limine or otherwise would not matter is what the Apex Court has held. The said judgment is distinguishable with the facts obtaining in the case at hand without much ado as in the case at hand there is no merger that has taken place of an order of the concerned court by the hands of this court. Therefore, on all the aforesaid score, the court that has rejected the plaint on this score that Section 12A is not complied with is on the face of it erroneous the which would lead to its obliteration for the aforesaid reason.