Commercial Litigation in India: Pre-Institution Mediation and Territorial Jurisdiction
Introduction
Commercial litigation in India demands a delicate balance between procedural efficiency, statutory compliance, and equitable access to an appropriate legal forum. The interplay between mandatory pre-institution mediation under commercial law and the discretionary territorial jurisdiction exercised by chartered high courts often gives rise to complex procedural battles. A prominent instance of such litigation involves the challenge raised by a defendant seeking the dismissal or return of a commercial suit on two distinct procedural grounds: the failure to undergo mandatory pre-litigation mediation and the improper invocation of territorial jurisdiction under historic letters patent provisions. The judgement in question offers a comprehensive analysis of how courts evaluate the standpoint of a plaintiff seeking urgent interim relief against the hardships faced by a defendant forced to litigate in a forum that lacks substantial connection with the underlying dispute.
Factual and Procedural Background
The history of the dispute traces back to 18.08.2016, when the plaintiff initially instituted a civil suit before the regular non-commercial division of the High Court. On the very next day, 19.08.2016, the plaintiff withdrew the initial suit and filed a second suit on the self-same cause of action between identical parties seeking identical reliefs. In this second action, the plaintiff secured a judgement upon admission on 07.02.2019. However, the defendant filed a demurrer application which eventually escalated to the appellate stage. On 03.12.2024, the Division Bench disposed of the appeal by setting aside the judgement upon admission, observing that the dispute was commercial in nature and ought not to have proceeded before the regular non-commercial division. The Division Bench permitted the plaintiff to withdraw the second suit with liberty to institute a fresh commercial suit within four weeks, specifying that failure to do so within the stipulated timeframe would deprive the plaintiff of the benefit of exclusion of time under Section 14 of the Limitation Act, 1963.
Pursuant to the directions of the Division Bench, the plaintiff presented a fresh commercial suit on 24.12.2024. Along with the suit, the plaintiff sought leave under Order II Rule 2 of the Code of Civil Procedure, 1908, leave under Clause 12 of the Letters Patent, 1865 for invoking territorial jurisdiction, and dispensation with the requirement of mandatory pre-institution mediation under Section 12A of the Commercial Courts Act, 2015. On 06.01.2025, a Coordinate Bench granted ex-parte leave under Clause 12 of the Letters Patent and dispensed with the pre-institution mediation requirement, thereby admitting the suit. Subsequently, on 11.08.2025, the defendant filed an interlocutory application seeking revocation of the leave granted under Clause 12 of the Letters Patent, revocation of the dispensation granted under Section 12A of the Commercial Courts Act, 2015, and dismissal of the suit.
The commercial contract in dispute was a memorandum of understanding dated 26.03.2013. The registered office of the plaintiff was located in Gangtok, Sikkim, while the registered office of the defendant was situated in Chandigarh Road, Punjab. The execution of the contracted works was to take place entirely in Assam, and the financial banking transfers associated with the contract were routed through a bank in Nawanshahr, Punjab. The plaintiff asserted jurisdiction in Calcutta on the premise that negotiations occurred at its corporate office situated within local limits and that one witness to the agreement had an address in Kolkata. Meanwhile, the defendant had already instituted a civil suit arising out of the same contractual transaction against the plaintiff, which remained pending before the jurisdictional court in Punjab.
Timeline of Key Events
| Date | Event |
|---|---|
| 18.08.2016 | Initial civil suit filed before the non-commercial division of the High Court. |
| 19.08.2016 | First suit withdrawn and second suit filed on the same cause of action. |
| 07.02.2019 | Judgement upon admission obtained by the plaintiff. |
| 03.12.2024 | The Division Bench set aside the judgement and granted liberty to file a fresh commercial suit. |
| 24.12.2024 | Fresh commercial suit instituted. |
| 06.01.2025 | Ex-parte leave granted under Clause 12 and pre-institution mediation dispensed with. |
| 11.08.2025 | Defendant filed an application seeking revocation of leave and dismissal of the suit. |
Dispute Before the Court
The core legal questions requiring adjudication centred on whether the plaintiff had legitimately bypassed the statutory mandate of pre-institution mediation and whether the High Court ought to retain territorial jurisdiction over the suit.
Issues Before the Court
| Issue | Question Before the Court |
|---|---|
| Issue 1 | Whether the plaintiff validly bypassed mandatory pre-institution mediation under Section 12A of the Commercial Courts Act, 2015. |
| Issue 2 | Whether leave granted under Clause 12 of the Letters Patent, 1865, should be revoked for lack of territorial jurisdiction. |
Defendant’s Contentions
The defendant argued that Section 12A of the Commercial Courts Act, 2015, creates an absolute statutory bar against instituting a commercial suit without exhausting pre-litigation mediation unless the suit genuinely contemplates urgent interim relief. The defendant contended that the suit was primarily a money claim where no urgent interim relief had been formally applied for or granted since 2016. The defendant asserted that the plaintiff used the plea of urgency as a mere camouflage and guise to bypass the mandatory statutory process.
On the issue of jurisdiction, the defendant urged that the contract was executed in Punjab, the works were performed in Assam, payments originated from Punjab, and both parties had registered offices outside West Bengal. Relying on the doctrine of forum conveniens, the defendant maintained that compelling it to defend the action in Calcutta caused severe hardship, especially when a related proceeding was pending in Punjab.
Plaintiff’s Contentions
Conversely, the plaintiff contended that the contemplation of urgency must be assessed holistically from the standpoint of the plaintiff at the time of filing. The plaintiff highlighted that having previously obtained a judgement upon admission that was later set aside on technical jurisdictional grounds, it possessed a legitimate apprehension that the defendant would dissipate or alienate assets to defeat the claim if forced into mediation.
Furthermore, the plaintiff argued that the strict four-week timeline imposed by the Division Bench on 03.12.2024 necessitated immediate filing without waiting for mediation. Regarding territorial jurisdiction, the plaintiff maintained that part of the cause of action arose within the local limits where contractual negotiations occurred and that averments in the plaint must be accepted as true at the initial stage without forcing a revocation of leave.
Reasoning and Analysis of the Court
Issue No. 1 – Pre-Institution Mediation Under Section 12A
In analysing the first issue regarding pre-institution mediation, the Court examined the statutory mandate under Section 12A of the Commercial Courts Act, 2015, alongside Rule 8 of the High Court Commercial Court Practice Directions, 2021. The Court observed that Section 12A imposes a mandatory requirement that non-compliance with ordinarily renders a plaint institutionally defective, leading to rejection under Order VII Rule 11 of the Code of Civil Procedure, 1908. However, an explicit statutory exception exists where a suit contemplates urgent interim relief.
Supreme Court Precedents Considered
| Case | Legal Principle |
|---|---|
| Patil Automation Private Limited and Others vs. Rakheja Engineering Private Limited [(2022) 10 SCC 1] | Established the mandatory nature of pre-institution mediation under Section 12A. |
| Yamini Manohar vs. T.K.D. Keerthi [(2024) 5 SCC 815] | Clarified that the Court must examine whether urgent interim relief was genuinely contemplable from the standpoint of the plaintiff. |
| Dhanbad Fuels Private Limited vs. Union of India and Another [(2025) 9 SCC 424] | Held that the test is not whether interim relief is ultimately granted, but whether urgency genuinely existed at the time of institution. |
| Novenco Building and Industry A/S vs. Xero Energy Engineering Solutions Private Limited [2025 SCC OnLine SC 2278] | Reaffirmed that courts should examine plausible urgency or the risk of losing rights or assets instead of deciding the merits of interim relief. |
The Court referred to authoritative precedents of the Supreme Court of India to establish the precise legal standard applicable to Section 12A. In Patil Automation Private Limited and Others vs. Rakheja Engineering Private Limited [(2022) 10 SCC 1], the Supreme Court established the mandatory nature of pre-institution mediation. This standard was further refined in Yamini Manohar vs. T.K.D. Keerthi [(2024) 5 SCC 815] and Dhanbad Fuels Private Limited vs. Union of India and Another [(2025) 9 SCC 424], where the Apex Court clarified that the test under Section 12A is not whether an urgent interim relief is ultimately granted on merits, but whether, upon a holistic examination of the plaint, documents, and oral submissions, a prayer for urgent interim relief was genuinely contemplable from the standpoint of the plaintiff.
This principle was reaffirmed in Novenco Building and Industry A/S vs. Xero Energy Engineering Solutions Private Limited [2025 SCC OnLine SC 2278], which summarized that courts must examine if there exists a plausible urgency or risk of losing rights or assets, rather than assessing the final merits of the interim relief.
Applying these principles, the Court held that the apprehension of asset alienation expressed by the plaintiff—given the prior litigation history where a judgement upon admission had been recorded—constituted a plausible and reasonable basis for contemplating urgent interim relief. Consequently, the ex-parte order dispensing with pre-institution mediation was affirmed as a valid exercise of judicial discretion.
Court’s Findings on Section 12A
- Section 12A ordinarily mandates pre-institution mediation.
- An exception exists where the suit contemplates urgent interim relief.
- The test is applied from the plaintiff’s standpoint at the time of filing.
- The Court need not determine whether interim relief will ultimately succeed.
- Plausible urgency is sufficient to dispense with mediation.
- The plaintiff’s apprehension of asset alienation satisfied the statutory exception.
Issue No. 2 – Territorial Jurisdiction Under Clause 12 of the Letters Patent
Turning to the second issue regarding Clause 12 of the Letters Patent, 1865, the Court undertook a detailed evaluation of discretionary territorial jurisdiction. Under Clause 12, where only a part of the cause of action arises within the ordinary original civil jurisdiction of the High Court, the court possesses discretion to grant, refuse, or subsequently revoke leave to sue.
Authorities Relied Upon
| Case | Principle Applied |
|---|---|
| Madanlal Jalan vs. Madanlal & Ors. [AIR 1949 Cal 495] | Balance of convenience governs revocation of leave under Clause 12. |
| Ultra Engineering vs. Spintex Industry [AIR 1980 Cal 159] | Hardship and lack of territorial nexus justify revocation. |
| Mighty Metals Pvt. Ltd. and Anr. vs. Rajasthan Financial Corporation [2011 SCC OnLine Cal 2113] | Forum conveniens remains an important consideration while deciding jurisdiction. |
The Court reviewed the landmark decision in Madanlal Jalan vs. Madanlal & Ors. [AIR 1949 Cal 495], which formulated the foundational principles governing revocation of leave under Clause 12. The principles establish that the court must consider the balance of convenience of both parties and may apply the doctrine of forum conveniens to revoke leave if the balance is overwhelmingly in favour of the defendant, even in the absence of bad faith by the plaintiff.
The Court also considered Ultra Engineering vs. Spintex Industry [AIR 1980 Cal 159] and Mighty Metals Pvt. Ltd. and Anr. vs. Rajasthan Financial Corporation [2011 SCC OnLine Cal 2113], which emphasized that genuine hardship and lack of territorial nexus justify revoking leave.
Upon scrutinizing the material on record, the Court observed that the primary elements of the transaction occurred far outside Calcutta: the registered office of the plaintiff was in Sikkim, the registered office of the defendant was in Punjab, the memorandum of understanding was executed in Punjab, the works were executed in Assam, and payments were processed in Punjab.
Furthermore, the defendant had already instituted a civil suit in Punjab arising from the same transaction. The Court noted that under company law mandates, corporate records are maintained at registered offices. While the plaintiff would have to transport records from Sikkim regardless of whether the trial occurred in Calcutta or Punjab, the defendant, having no place of business in West Bengal, would suffer extreme hardship in transporting witnesses and records from Punjab to Calcutta.
Balancing the convenience of both sides, the Court held that Calcutta was not the natural or convenient forum and that trying the suit in Punjab alongside or before the jurisdictional court would serve the ends of justice.
Court’s Findings on Territorial Jurisdiction
- Clause 12 jurisdiction is discretionary.
- The doctrine of forum conveniens remains applicable.
- The majority of the cause of action arose outside West Bengal.
- The defendant would suffer substantial hardship if compelled to litigate in Calcutta.
- Punjab was the natural and convenient forum.
- The leave granted under Clause 12 deserved to be revoked.
Final Decision of the Court
The Court disposed of the interlocutory application by granting partial relief to the applicant defendant. The Court refused to recall or revoke the order granting dispensation from pre-institution mediation under Section 12A of the Commercial Courts Act, 2015, holding that the dispensation was lawfully granted based on the plaintiff’s contemplable urgency.
However, the Court allowed the application regarding territorial jurisdiction and revoked the leave previously granted under Clause 12 of the Letters Patent, 1865, on the ground of forum conveniens. The Court directed that the plaint be returned to the plaintiff along with the original court fees paid, upon retaining a certified photostat copy of the plaint on record.
The plaintiff was granted liberty to present the plaint before the competent jurisdictional commercial court in Punjab, where the defendant’s suit was pending. The Court noted that because the defendant had forfeited its right to file a written statement by operation of law under Order VIII Rule 1 of the Code of Civil Procedure, 1908 as amended by the Commercial Courts Act, 2015, the suit would proceed from its present stage before the transferee commercial court as an undefended suit. Connected interlocutory applications were disposed of, and interim orders were vacated with liberty to re-apply before the appropriate court in Punjab.
Summary of the Final Ruling
| Issue | Court’s Decision |
|---|---|
| Pre-Institution Mediation | Dispensation under Section 12A upheld. |
| Territorial Jurisdiction | Leave under Clause 12 revoked. |
| Plaint | Directed to be returned for presentation before the competent Commercial Court in Punjab. |
| Interim Orders | Vacated with liberty to seek fresh relief before the competent court. |
| Written Statement | Defendant’s right is already forfeited under Order VIII Rule 1 CPC (Commercial Courts Act). |
Point of Law Settled
This judgement reaffirms and clarifies two crucial procedural standards in commercial litigation:
Section 12A of the Commercial Courts Act, 2015
First, in evaluating compliance with Section 12A of the Commercial Courts Act, 2015, the test for dispensing with pre-institution mediation is subjective-objective, measured strictly from the standpoint of the plaintiff at the time of filing. The Court is not required to adjudicate whether interim relief will be granted on merits, but whether the plaintiff had a plausible and non-illusory reason to contemplate urgent intervention to protect its rights or assets.
Clause 12 of the Letters Patent, 1865
Second, the judgement reaffirms that ex-parte leave granted under Clause 12 of the Letters Patent, 1865, is subject to judicial review under the doctrine of forum conveniens. Even if a minuscule or formal part of the cause of action is shown to arise within the territorial limits of a Chartered High Court, the court retains inherent discretion to revoke leave if the balance of convenience heavily favors the defendant and litigating in that forum imposes undue hardship without a substantial nexus to the core transaction.
Key Legal Principles
| Legal Principle | Position Clarified by the Court |
|---|---|
| Section 12A Commercial Courts Act | Mandatory except where urgent interim relief is genuinely contemplated. |
| Urgency Test | Evaluated from the plaintiff’s standpoint at the time of filing. |
| Forum Conveniens | Can override a minor territorial connection with the forum. |
| Clause 12: Leave | Discretionary and capable of being revoked. |
| Balance of Convenience | A decisive factor while considering revocation of leave. |
Case Information
| Title of the Case | JK Engineering Private Limited vs. ANE Industries Private Limited |
|---|---|
| Date of Judgement | 28.07.2026 |
| Case Number | IA NO. GA-COM/3/2025 In CS-COM/834/2024 |
| Name of Court | In the High Court at Calcutta (Ordinary Original Civil Jurisdiction – Commercial Division) |
| Name of Hon’ble Judge | Hon’ble Justice Aniruddha Roy |
| Written By | Advocate Ajay Amitabh Suman, IP Adjutor [Patent and Trademark Attorney], High Court of Delhi |
Key Takeaways
- Section 12A of the Commercial Courts Act, 2015, makes pre-institution mediation mandatory unless the suit genuinely contemplates urgent interim relief.
- The existence of urgency must be assessed from the plaintiff’s perspective at the time of filing the suit.
- Courts are not required to determine whether interim relief will ultimately succeed while deciding the applicability of Section 12A.
- Clause 12 of the Letters Patent, 1865, confers discretionary territorial jurisdiction.
- The doctrine of forum conveniens plays a significant role in determining the appropriate forum for commercial disputes.
- Even where a small part of the cause of action arises within the jurisdiction of a chartered high court, leave may be revoked if another forum is substantially more convenient.
- Balance of convenience and the avoidance of hardship remain central considerations while exercising discretionary jurisdiction.
