Delhi District CourtM/S Pawan Associates Pvt. Ltd vs Ms. Shivi Aggarwal on 30 January, 2021-:: 1 ::-\n\n\n\n               IN THE COURT OF MS. NIVEDITA ANIL SHARMA,\n                            DISTRICT JUDGE,\n                    COMMERCIAL COURT-01, SHAHDARA,\n                      KARKARDOOMA COURTS, DELHI\n\nCS (Comm) No.139/2020.\n\nM/s Pawan Associates Pvt. Ltd.\n1/53, 3rd Floor, Lalita Park,\nLaxmi Nagar, Delhi-110092.\nThough Director\nSh.Anurag Gupta\n......................................................................................Plaintiff.\nversus\nMs. Shivi Aggarwal\nD/o Mukesh Aggarwal\nR/o 117, Ram Vihar,\nDelhi-110092.\n...................................................................................Defendant.\n\n30.01.2021.\n\nAppearances: Mr.Ravinder Narayan, counsel for the plaintiff (through video\n             conferencing).\n            Mr.Rakesh Kansal, counsel for the defendant (appeared physically\n             in the Court room and joined virtually)\n\nIn compliance to the office order no. 417/RG/DHC/2020 dated 27.08.2020\nand letter dated 20.09.2020 of the Registrar General High Court of Delhi,\nNew Delhi towards graded opening of District Court post Covid-19\npandemic, the Judicial Officers of the Shahdara District shall hold the\nphysical         Courts   as      per       schedule/roster;                 order       no.   5595-5615/\nJudl.Br./East/KKD/Delhi dated 30.08.2020 regarding Standard Operating\nProcedure/Guidelines for resumption of physical hearing; order no. 7500-\n7522/Judl/SHD/2020 dated 23.12.2020 in respect of Roster for physical\nhearing from 01.01.2021 to 31.01.2021 of the learned Principal District and\nSessions Judge, Shahdara, Karkardooma Courts, Delhi; the directions of\n\nCS (Comm) No. 139/2020.        M/s Pawan Associates Private Limited v. Shivi Aggarwal.         -:: Page 1 of 17 ::-\n                                                -:: 2 ::-\n\n\n\nthe Hon'ble High Court of Delhi contained in letter no. 35/RG/DHC/2021\ndated 14.01.2021 that the Judicial Officers of Subordinate Court of the\nShahdara District shall hold the physical Courts on alternate basis as per\nschedule /roster and continue to take up the matters through 'video\nconferencing' on non-physical w.e.f 18.01.2021 to 31.01.2021 as circulated\nvide endorsement no.36-68/RG/DHC/2021 dated 14.01.2021; office order in\npartial modification of earlier order no. 7500-7522/Judl/SHD/2020 dated\n23.12.2020 circulated vide endorsement no 252-274/Judl/SHD/2021 dated\n15.01.2021 as well as earlier orders of Hon'ble High Court of Delhi and\nlearned Principal District and Sessions Judge, Shahdara, Karkardooma\nCourts, Delhi, the present matter                          is being heard through video\nconferencing using Cisco Webex.\n\n\nAlthough it is a day of video conferencing hearing of this Court, as per the\nabove stated roster, but the counsel for the defendant has appeared\nphysically in the Court room and then joined though video conferencing on\nCisco Webex.\n****************************************************************\n                                            ORDER1. This case is a civil suit for recovery of Rupees Four Lakhs Ninety Six\n         Thousand One Hundred and Ten only (Rs.4,96,110/- only) filed on\n         20.08.2018 by M/s Pawan Associates Pvt. Ltd. (hereinafter referred to as\n         the plaintiff) against Ms. Shivi Aggarwal (hereinafter referred to as the\n         defendant).2. This case was assigned to the Court of the learned Additional District\n         Judge-01, Shahdara, Karkardooma Courts, Delhi for 21.08.2018 and was\n         considered on 21.08.2018. The defendants was ordered to be served for\n         20.10.2018.CS (Comm) No. 139/2020.    M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 2 of 17 ::--:: 3 ::-3. Thereafter, the counsel for the defendant appeared on 20.10.2018.Directions were issued for filing of the written statement within the\n         stipulated period with advance copy to the opposite party. The matter was\n         listed for filing of replication, if any, DAD, framing of issues and\n         consideration of pending application, if any, as well as for the appearance\n         of the parties for 24.01.2019. Copy of the written statement was supplied\n         on 24.01.2019 and matter was listed for filing of replication, DAD and\n         framing of issues on 21.02.2019. Replication was filed and issues were\n         framed on 21.02.2019 and matter was listed for Plaintiff's evidence (PE)\n         for 30.04.2019. Evidence by way of affidavit was filed by the plaintiff on\n         30.04.2019 and mater was listed for 30.07.2019 for purpose fixed. On\n         30.07.2019, the matter was adjourned for purpose fixed for 16.10.2019\n         and then again for 21.01.2020.4. As this suit pertains to a commercial dispute, as submitted by the counsel\n         for both the sides on 21.01.2020 as well as the observations of the learned\n         Additional District Judge-01, Shahdara, Karkardooma Courts, this case\n         was transferred to this Court for 01.02.2020. This case was considered by\n         this Court for the first time on 01.02.2020 and Mr.Anurag Gupta (PW-1)\n         was partly examined. The matter was listed for the production of original\n         documents and for further examination of Mr.Anurag Gupta (PW-1) on\n         19.02.2020 and for defendant evidence by way of affidavit for\n         26.02.2020.5. Thereafter, due to the lockdown and pandemic because of the spread of\n         Corona Virus Covid-19, there were en block adjournments.6. On 19.08.2020, the question arose whether or not the case is maintainable\n\nCS (Comm) No. 139/2020.     M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 3 of 17 ::--:: 4 ::-and the matter was listed for 29.08.2020 for arguments on the\n         maintainability of the case in respect ofsection 12 Aof the Commercial\n         Courts Act (hereinafter referred to as theCC Act) as the statement of truth\n         and the non starter report were not filed along with the plaint.7. Then, the case was adjourned for 29.09.2020 and 07.10.2020. As none\n         appeared on behalf of the plaintiff on 07.10.2020, the case was dismissed\n         in default on 07.10.2020. On 07.12.2020, the application filed on behalf\n         of the plaintiff under Order IX Rule 9 read with section 151 of the Civil\n         Procedure Code (hereinafter referred to asthe CPC) was taken up and\n         vide order dated 23.12.2020, the case was restored.8. The matter was then adjourned on the request of the counsel for the\n         plaintiff and listed for arguments on the maintainability of the case in\n         respect ofsection 12 Aof the CC Act for 04.01.2021 and 14.01.2021. On\n         14.01.2021, the counsel for the plaintiff did not appear and the counsel\n         for the defendant submitted that he had been informed telephonically by\n         the counsel for the plaintiff that he will not appear due to some difficulty.\n         The matter was then adjourned for 23.01.2021. On 23.01.2021, the\n         arguments on the maintainability of the case in respect ofsection 12 Aof\n         the CC Act were heard at length and concluded and the matter was listed\n         for orders for 29.01.2021. On 29.01.2021, as the counsel for the plaintiff\n         was not available, the matter was adjourned for 30.01.2021.9. Today i.e. on 30.01.2021, the counsel for the plaintiff has sought\n         permission to advance further arguments which has been allowed.\n         Counsel for the plaintiff has advanced further arguments and concluded\n         the same.CS (Comm) No. 139/2020.     M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 4 of 17 ::--:: 5 ::-10.I have also given my conscious thought and prolonged consideration to\n         the material on record, relevant provisions of law and the precedents on\n         the point.11.It is important to mention here that in this suit for recovery, no\n         miscellaneous application was moved for seeking any urgent relief nor\n         any application seeking waiver ofsection 12 Aof the CC Act was filed\n         along with the case. The statement of truth and the non starter report in\n         respect of pre institution mediation have not been filed along with the\n         plaint and till date.12.The counsel for the plaintiff has argued that this case was not filed as a\n         commercial case, so Non Starter Report are not required and at this stage,\n         the question of maintainability of the case cannot be raised after the\n         summons were ordered to be issued to the defendant.The CC Actis still\n         at a nascent stage and liberal view should be taken. When the Court can\n         give time for filing statement of truth or certificate undersection 65 Bof\n         the Indian Evidence Act, then time should be given for mediation now\n         also. Also, there was no objection raised before the Court of the learned\n         predecessor or even this Court regarding maintainability from the date of\n         filing till 19.08.2019. The designated Commercial Courts at Delhi were\n         established from 06.12.2019 (vide the order No. 60/DHC/Gaz./G-1,\n         VIE.2(a)/2019 dated 05.12.2019 of the hon'ble High Court of Delhi) and\n         this case was filed much earlier on 20.08.2018. Now at this stage, the\n         case cannot be disposed over a hyper technical issue and without proper\n         adjudication. It is also argued that the plaintiff is ready to comply with all\n         the requisite formalities during the pendency of the present case and the\n         matter may be sent for mediation or the plaintiff itself can approach Legal\n         Service Authority for holding mediation. It has also been argued that it is\nCS (Comm) No. 139/2020.          M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 5 of 17 ::--:: 6 ::-not mandatory to enter in the mediation process before filing of the suit\n         and word 'shall not be instituted' has to be read as 'may not be instituted'.\n         It is also argued that provisions ofSection 12 Aof the CC Act is only\n         directory in nature being procedural in nature and not substantive law.\n         The plaintiff had filed the suit on 20.08.2018 while the Bill for\n         introducing section 12 A by way of amendment in theCC Actwas\n         introduced before the Parliament on 23.07.2018 and thereafter, the\n         amendment was passed on 01.08.2018 and it received the consent of the\n         Hon'ble President of India on 20.08.2018. At the time of filing of this\n         case, no authority was constituted which is specifically designated for\n         conducting pre-litigation mediation. It is also argued that althoughSection 12 Aof the CC Act is not applicable to the given facts but the\n         plaintiff may be allowed to proceed further or the case may be returned\n         granting opportunity/liberty to the plaintiff to first invoke pre-litigation\n         mediation as persection 12 Aof the CC Act and the Court fees may also\n         be refunded.13. Reliance has been placed by the plaintiff upon the order dated\n         24.02.2020       of   the hon'ble              High Court               of      Delhi   inTrinity\n         Globemerchants Pvt. Ltd. v. Manganga Sahakari Sakhar Karkhana\n         Ltd., CS (Comm) 16/2020, order dated 12.03.2020 of the Court of learned\n         District Judge, Commercial Court, North, Rohini, Delhi in CS (Comm)\n         No.172/2020 and order dated 07.03.2020 of the Court of learned District\n         Judge, Commercial Court, East, Karkardooma Courts in CS (Comm)\n         No.131/2020.14.It may be mentioned here itself that this is a commercial suit which is\n         within the ambit ofsection 2 (1) (c) (i)of the CC Act which defines the\n         commercial dispute. It reads as follows:CS (Comm) No. 139/2020.        M/s Pawan Associates Private Limited v. Shivi Aggarwal.           -:: Page 6 of 17 ::--:: 7 ::-2. Definitions.--(1) In this Act, unless the context otherwise\n                  requires,--(a).....(aa).....(b).....(c) "commercial dispute" means a dispute arising out of--(i) ordinary transactions of merchants, bankers, financiers and\n                     traders such as those relating to mercantile documents,\n                     including enforcement and interpretation of such documents;............15.This is a civil case for recovery of money filed by the plaintiff and is in\n         respect of an ordinary transaction of a merchant. It was the duty of the\n         plaintiff to inform the Court that the dispute is a commercial dispute and\n         is covered within the definition as elaborated undersection 2 (1) (c) (i)of\n         the CC Act. By failing and omitting to mention the same before the Court\n         of the learned predecessor of this Court as well as this Court, the plaintiff\n         has attempted to mislead the Court and play fraud upon the Court and to\n         by-pass all the mandatory requirements of theCC Actwhich are required\n         to be complied with. It was only on 21.01.2020 that the counsel for both\n         the sides submitted before the learned predecessor of this Court that this\n         suit pertains to a commercial dispute.16.Therefore, it is crystal clear that this is a civil suit, a commercial suit,\n         which squarely falls within the definition of "commercial suit" as defined\n         undersection 2 (1) (c) (i)of the CC Act.17.As regards the argument of the counsel for the plaintiff that no objection\n         was raised by the Court of the learned predecessor or even this Court\n         regarding maintainability from the date of filing till 19.08.2020, it may\n         be mentioned here that a legal point (maintainability in the present case)\n         can be raised and taken up at any stage, even at the stage of judgment and\nCS (Comm) No. 139/2020.       M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 7 of 17 ::--:: 8 ::-there is no bar regarding the same. Therefore, the plaintiff is required to\n         show that the present case, in the present form, is maintainable failing\n         which the case becomes liable to be dismissed/rejected on the ground of\n         maintainability.18.Section 12 Aof Commercial Courts Act deals with the provision of Pre-Institution Mediation and even if the plaintiff approaches the Legal\n         Services Authority Cell now for holding mediation itself or Court refers\n         the same, then it will be a Post-Institution Mediation and will not remain\n         as Pre-Institution Mediation. Thus, a problem has arisen what should be\n         the proper course of the action in such situation when this suit on the face\n         of it has been filed in violation ofSection 12 Aof Commercial Courts Act\n         which appears to be not maintainable.19.The Commercial Courts Act2015 came into force w.e.f. 01.01.2016. The\n         Commercial Courts (Pre-Institution Mediation and Settlement) Rules,\n         2018 came into force w.r.e.f. 03.07.2018.20.Section 12 Aof the CC Act which deals with the provision of pre\n         institution mediation and settlement was incorporated w.e.f. 03.05.2018.\n         Clause (1) of this Section reads as under:(1) A suit, which does not contemplate any urgent interim\n                  relief under this Act, shall not be instituted unless the plaintiff\n                  exhausts the remedy of pre institution mediation in accordance\n                  with such manner and procedure as may be prescribed by rules\n                  made by the Central Government.21.The Central government has appointed authority constituted underLegal\n         Services Authorities Actto conduct the Pre Institution Mediation under\n         clause (2) of this Section. Clause (3) of this Section deals with the period\n         within which the Legal Services Authority has to complete the mediation\nCS (Comm) No. 139/2020.       M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 8 of 17 ::--:: 9 ::-proceedings and it is further mentioned that the period spent for Pre\n         Institution Mediation shall be excluded from the limitation period of the\n         case. Clauses (4) and (5) of this Section mentions how the settlement, if\n         arrived at is to be prepared and how such settlement can be enforced. The\n         Central Government has also framed rules under this section which are\n         known as The Commercial Courts (Pre Institution Mediation and\n         Settlement) Rules, 2018.22.The purpose of including Section 12 A in theCC Actis to settle the\n         commercial disputes as defined underSection 2 (c)of the CC Act, so that\n         there should be minimum recourse to approach the Courts. This provision\n         is also helpful in the reducing the burden of the court as well as to\n         accelerate economic grow and improve the international image of the\n         Indian Justice delivery system and to increase the faith of the investor\n         world in the legal culture of the nation if the objects and reasons of this\n         amendment are taken into consideration. Supreme Court in the case\n         reportedAmbalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP2019 SCC Online SC 1311 held that provisions of theCommercial\n         Courts Actare to be strictly followed and adhered to. It means no liberal\n         interpretation of the provisions has to be given and it should be read with\n         narrow sense.23.In Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP2019 SCC\n         Online SC 1311, it was observed as follows:"The object and purpose of the establishment of Commercial\n                  Courts, Commercial Divisions and Commercial Appellate\n                  Divisions of the High Court is to ensure that the cases involved in\n                  commercial disputes are disposed of expeditiously, fairly and at a\n                  reasonable cost to litigants. Keeping in view the object and\n                  purpose of the establishment of the Commercial Courts and fast\n                  tracking procedure provided under the Act, the statutory\nCS (Comm) No. 139/2020.       M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 9 of 17 ::--:: 10 ::-provisions of the Act and the words incorporated thereon are to\n                  be meaningfully interpreted for quick disposal of commercial\n                  litigations so as to benefit the litigants especially those who are\n                  engaged in trade and commerce which in turn will further\n                  economic growth of the country."24.The use of the words "shall not be instituted" insection 12 Aof the CC\n         Act clearly mandates that the suit of commercial nature cannot be filed at\n         all unless Pre Institution Mediation step is followed where there is no\n         urgent interim application for seeking some immediate relief. Dictionary\n         meaning of word 'instituted' is read as 'commence or start'.Section 12 Aof the CC Act is not a simple formality but is a necessary condition to be\n         followed before filing of the suit or before commencing the proceedings\n         itself. This provision clearly bars the institution of the suit itself and law\n         does not permit the plaintiff to file the case straightway in the Court\n         without following the mediation proceedings when no interim urgent\n         relief is claimed that is why the provisions itself has given extension of\n         the period of limitation because the period spent during such mediation\n         proceedings will not be counted and has to be excluded.25.Section 12 Aof Commercial Courts Act only deals with the Pre\n         Institution Mediation and it is not applicable after filing of the case\n         because taking up the matter thereafter will become Post-Institution\n         Mediation. Even if the plaintiff itself undergoes the mediation\n         proceedings now after filing of this case at its own or under any Court\n         order, then no benefit in any limitation period has to be given to it. More\n         importantly,Section 12 Aof Commercial Courts Act also requires that\n         there should be genuine efforts and bonafide act on the part of the\n         plaintiff to participate in the mediation proceedings. By merely moving\n         an application before Legal Services Authority for namesake to meet out\n\nCS (Comm) No. 139/2020.       M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 10 of 17 ::--:: 11 ::-the requirements of the law without any genuine intention to join in the\n         mediation proceeding is not sufficient and cannot be termed as proper\n         compliance of the law.Section 12 Aof the CC Act is not a simple\n         formality but a mandatory requirement and procedure of the law, if the\n         intention of the legislature to incorporate this provision in theCommercial Courts Actis taken into consideration. In the considered\n         view of this Court, this provision cannot be taken as simple formality and\n         for namesake and it even cannot be bye-passed by simply moving any\n         frivolous and baseless urgent application.26.The plea is taken by the counsel for the plaintiff that it is not mandatory\n         to enter in the mediation process before filing of the suit and word 'shall\n         not be instituted' has to be read as 'may not be instituted'. It is also\n         argued that provisions ofSection 12 Aof the CC Act is only directory in\n         nature being procedural in nature and not substantive law and when such\n         procedure causes inconvenience to the innocent person or general public,\n         then the said provision has to be treated as directory and not mandatory.\n         However, the same is not a cogent nor convincing proposition as the\n         procedural aspect of theCommercial Courts Acthas to be strictly\n         followed if the decision of the Supreme Court inAmbalal Sarabhai's casereferred aboveis taken into consideration. The word 'shall' appearing in\n         clause (1) of Section 12A cannot be read as 'may'.27.Non-filing of statement of truth or certificate undersection 65 Bof the\n         Indian Evidence Act can be rectified at the later stage with their filing but\n         pre-institution mediation, as elaborated insection 12 Aof the CC Act, is a\n         mandatory requirement and it cannot be made up with post institution\n         mediation.CS (Comm) No. 139/2020.     M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 11 of 17 ::--:: 12 ::-28.It has also been argued on behalf of the plaintiff that undersection 15 (3)of the CC Act, this case is maintainable but this contention is apparently\n         wrong. Bare reading of the relevant provision clarifies that the suit in the\n         present form without the mandatory pre-institution mediation is not\n         maintainable.29.As regards the contention made on behalf of the plaintiff that the\n         defendant was not available at the given address, the same is not relevant\n         as apparently, when the case was filed, at least till then the defendant was\n         available at the given address, as mentioned in the plaint and the\n         defendant appeared through her counsel and she is contesting the case.30.Another submission of the counsel for the plaintiff that the mediation\n         process would have been a futile exercise because defendant will not join\n         or will not be ready for any settlement is also a baseless ground as the\n         plaintiff atleast has to mandatory see the proceedings conducted by the\n         mediator to find out whether any fruitful result is coming or not. Pre-\n         notion or pre-thinking of the plaintiff that mediation proceedings will not\n         bring any result is baseless as the mediation even after some hearings can\n         bring a good result and dispute can come to an end by some efforts of the\n         mediator. The act of the plaintiff to straightway avoiding to take recourse\n         of the mediation proceedings and filing of the case without such recourse\n         is liable to be condemned and there is no hesitation to say that plaintiff\n         itself had made mockery of the mandatory provisions ofSection 12 Aof\n         the CC Act by not taking such mandatory steps prior to institution of the\n         suit.31.Further Rule 8 of Commercial Courts (Pre Institution Mediation and\n         Settlement) Rules 2018 puts an obligation upon the parties to participate\n\nCS (Comm) No. 139/2020.     M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 12 of 17 ::--:: 13 ::-in the mediation process in good faith with an intention to settle the\n         dispute. Thus, thinking of the plaintiff that the defendant will not join\n         mediation proceedings in any situation or even if he does join, he will not\n         try to settle the matter is not appreciable and it infact points out that the\n         plaintiff does not have any good faith and real bonafide intention.\n         Plaintiff is required to wait for the decision of the mediator before making\n         up the mind that the defendants in all circumstances would not join\n         mediation proceedings or will frustrate the same. The act of the defendant\n         in not participating or refusing to settle the dispute through mediation can\n         go against him during trial also and the Court can even ask the defendant\n         to pay the expenses of the mediation to the plaintiff in such situation but\n         at least plaintiff should have initiated the Pre Institution Mediation\n         process, as required under law. In the present matter, the plaintiff\n         apparently has not complied with the mandatory requirement of pre\n         institution mediation. The plaintiff was required to follow all the\n         mandatory procedure before instituting this suit. In fact, the plaintiff itself\n         failed to apply and participate in the pre institution mediation, as is\n         revealed from the record.32.The plaintiff even cannot avoid going for Pre Institution Mediation on the\n         ground that under the Rules, it is required to pay few thousands rupees\n         toward application fee and thereafter, the mediator fee as per Schedule II\n         of Rule 11 of Commercial Court (Pre Institution Mediation and\n         Settlement) Rules 2018. Compliance of mandatory provisions cannot be\n         avoided on ground of any financial crunch which is also not a case of the\n         plaintiff. Otherwise also, when the Rules are putting an obligation upon\n         the plaintiff to pay certain amount as mediation fees, then the same has to\n         be complied with and it is for the Legal Services Authority to see whether\n         this fees has to be compulsory taken or can be waived off.\nCS (Comm) No. 139/2020.      M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 13 of 17 ::--:: 14 ::-33.The plaintiff cannot be excused from avoiding the provisions ofSection\n         12 Aof CC Act as it is a mandatory provision and not depends upon the\n         entire discretion of the plaintiff. The word "shall not be instituted" makes\n         it mandatory to go to mediation before filing of the suit in the Court\n         unless interim urgent relief is claimed and this word 'shall' cannot be\n         treated as 'may'. In the considered opinion of this Court, the act and\n         conduct of the plaintiff in not complying with the mandatory provisions\n         ofSection 12 Aof CC Act before institution of the suit puts a bar not to\n         proceed further with this case.34.It is important to mention here that section 12 A was inserted in theCC\n         Actvide Chapter III A (containing section 12 A) by Act 28 of 20118 ,sec.11(w.r.e.f. 03.05.2018). The designated authority for conducting Pre-\n         Institution Mediation is clearly elaborated in theCC Actas well as\n         Commercial Courts (Pre Institution Mediation and Settlement) Rules\n         2018.35.Order VII Rule 10 of the Civil Procedure Code (hereinafter referred to asthe CPC) reads as follows:10. Return of plaint.- (1) Subject to the provisions of rule 10A,\n                  the plaint shall at any stage of the suit be returned to be\n                  presented to the court in which the suit should have been\n                  instituted.Explanation: For the removal of doubts, it is hereby declared that\n                  a court of appeal or revision may direct, after setting aside the\n                  decree passed in a suit, the return of the plaint, under this sub-\n                  rule.(2) Procedure on returning --On returning a plaint, the Judge\n                  shall endorse thereon the date of its presentation and return, the\n                  name of the party presenting it, and a brief statement of the\n                  reasons for returning it.CS (Comm) No. 139/2020.       M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 14 of 17 ::--:: 15 ::-36.On perusal ofOrder VII Rule 10 of the CPC, it is clear that it shall be\n         applicable only when the case has been instituted in the Court not having\n         jurisdiction and it is to be returned to be presented to the Court in which\n         the suit should have been instituted. In the present case, jurisdiction i.e.\n         pecuniary and territorial lie in this Court i.e. Commercial Court and the\n         case could not be instituted in any other Court since the case is of a\n         commercial dispute. Therefore, the case cannot be returned to the\n         plaintiff.37.Since due to violation of the mandatory provision, as elaborated above,\n         the suit itself could not have been instituted or filed without such Pre\n         Institution Mediation so the same is liable to be rejected under Order VII\n         Rule 11 (d)of the CPC. No question of return of the plaint in such\n         situation arises underOrder VII Rule 10 of the CPCbecause where the\n         suit is barred by any law, then the plaint has to be rejected and not to be\n         returned.38.Order VII Rule 11 (d)of the CPCreads as follows:Rejection of plaint-The plaint shall be rejected in the following\n                  cases:-(a)...(b)...(c)...(d) where the suit appears from the statement in the plaint to\n                      be barred by any law;(e)...(f)...39.The present case under consideration apparently is barred by law as there\n         is a clear violation of section ofsection12 Aof the CC Act since the\n         plaintiff has not complied with the mandatory requirement of pre-\n         institution mediation prior to the filing of the present case.\nCS (Comm) No. 139/2020.       M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 15 of 17 ::--:: 16 ::-40.The orders relied upon by the plaintiff are of no help to the plaintiff as\n         they are not applicable to the facts and circumstances of this case which\n         are peculiar and unique.In the order dated 24.02.2020 of the hon'ble\n         High Court of Delhi inTrinity Globemerchants Pvt. Ltd. v. Manganga\n         Sahakari Sakhar Karkhana Ltd., CS (Comm) 16/2020, the case was\n         withdrawn by the plaintiff while in the present matter under\n         consideration, no such submission has been made by the plaintiff in the\n         present matter for withdrawal of the case and arguments on the\n         maintainability of the case in respect ofsection 12 Aof the CC Act have\n         been addressed. The orders of the learned District Judges, Commercial\n         Court relied upon by the plaintiff are also not applicable considering the\n         peculiar facts.41. In view of the foregoing discussion and reasons, the conscience of this\n         Court is fully satisfied that the present suit is not maintainable. The\n         present case, which is a commercial dispute and a civil suit for\n         recovery, is hereby rejected under order VII Rule 11 (d)of the CPCbeing not maintainable due to non compliance ofSection 12 Aof\n         Commercial Courts Act and barred by law.42.The plaintiff, however, can file fresh suit only after compliance with\n         mandatory provisions of law underSection 12 Aof the Commercial\n         Courts Act and other provisions, subject to the period of limitation and\n         law.43.No Court fees paid in this suit shall be returned or refunded to the\n         plaintiff as in case of rejection of plaint under Order VII Rule 11 (d)of\n         the CPC, there is no provision to return the same.CS (Comm) No. 139/2020.     M/s Pawan Associates Private Limited v. Shivi Aggarwal.   -:: Page 16 of 17 ::--:: 17 ::-44.After completion of formalities, the JA/Ahlmad of the Court shall\n         consign the file to the record room.45.Also, the file of the application of the plaintiff under Order IX Rule 4\n         read withsection 151of the CPC which is tagged with the main case, be\n         separately consigned to the record room along with copy of today's\n         ordersheet.Announced through video                                         (NIVEDITA ANIL SHARMA)\nconferencing on Cisco Webex on                                                           District Judge,this 30th day of January, 2021.                                                Commercial Court-01,\n                                                                Shahdara, Karkardooma Courts,\n                                                                                      Delhi. 30.01.2021.****************************************************************\n\n\n\n\nCS (Comm) No. 139/2020.     M/s Pawan Associates Private Limited v. Shivi Aggarwal.        -:: Page 17 of 17 ::-