Debangsu Basak, J.:— Two applications have been heard analogously as they relate to the same suit. By IA No. GA 7 of 2021. The defendant Nos. 1 and 2 have applied for rejection of the plaint and revocation of leave granted under clause 12 of the Letters Patent, 1865 and for other reliefs. By IA No. GA 6 of 2020 the plaintiff has sought leave to dispense with pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.
2. Learned advocate appearing for the defendant Nos. 1 and 2 has submitted that, the suit should be dismissed on the ground of non-compliance with the provisions of Section 12A of the Commercial Courts Act, 2015, failure to lodge fresh writ of summons after amendment and for non-service of the notice under Section 80 of the Code of Civil Procedure, 1908.
3. Learned advocate appearing for the defendant Nos. 1 and 2 has submitted that, the suit was initially filed in the Commercial Division without obtaining leave for dispensation of the pre-institution mediation as contemplated under Section 12A of the Act of 2015. The plaintiff has not pleaded anything regarding dispensation of the provisions of Section 12 A nor has the plaintiff made any prayer to such effect in the plaint as originally filed.
4. Relying upon 2020 SCC OnLine Cal 1591 (Terai Overseas Private Ltd. v. Kejriwal Sugar Agencies Private Ltd.). Learned advocate for the defendant Nos. 1 and 2 has submitted that, since the plaintiff did not contemplate urgent interim reliefs, prior leave for dispensation of pre-institution mediation and settlement should have been obtained.
5. Relying upon (1997) 9 SCC 132 (Mohan Singh v. International Airport Authority of India). Learned advocate appearing for the defendant Nos. 1 and 2 has submitted that, the word “shall” appearing in Section 12A is mandatory as it would be evident from the object of the Act of 2015. A strict interpretation of the provisions of the Act of 2015 should be adhered to. The user of the word “shall” gives the impression of the same being mandatory in character.
6. Learned advocate appearing for the defendant Nos. 1 and 2 has relied upon 2019 SCC OnLine SC 1311 (Ambalal Sarabhai v. K. S. Infraspace) in support of the proposition that, the provisions of the Act of 2015 have to be strictly construed.
7. The defendant No. 3 has supported the application of the defendant Nos. 1 and 2. Learned advocate appearing for the defendant No. 3 has submitted that, Section 12A of the Act of 2015 is mandatory. According to him, the user of the word “shall” in the Section raises a presumption that the provision is mandatory. In support of such contention, he has relied upon (2018) 15 SCC 99 (ITC Ltd v. Blue Coast Hotels Ltd.) and AIR 1957 SC 912 (State Of U.P v. Manbodhan Lal Srivastava .). According to him, the onus is on the plaintiff to establish that the Section is directory. He has referred to the objects of the Act of 2015 and submitted that, the intention of the legislature is an expeditious disposal of commercial dispute. In support of his contention, he has relied upon AIR 1962 SC 779 (State of West Bengal v. B K Mondal and Sons). According to him, Section 12A of the Act of 2015 cannot be read as directory. He has relied upon (2005) 1 SCC 368 (State of Jharkhand v. Ambay Cements).
8. Learned advocate appearing for the defendant No. 3 has contended that, directory provisions are where the time is extendable and where there is a public duty to be performed and where the concerned person has no control over an authority which has to do the work within a particular time. He has relied upon (2021) 2 SCC 392 (C. Bright v. District Collector) and (2018) 9 SCC 72 (State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti) in this regard.
9. Relying upon (2020) 15 SCC 585 (Ambalal Sarabhai Enterprises Ltd. v. K S Infraspace LLP) learned advocate appearing for the defendant No. 3 has submitted that, the provisions of the Act of 2015 are to be strictly construed. According to him, it is a binding precedent. In support of such contention, he has relied upon (2011) 9 SCC 354 (Delhi Airtech Services Private Limited v. State of UP).
10. Learned advocate appearing for the plaintiff has submitted that, when the suit was filed, the various provisions of Section 12 A of the Act of 2015 were incapable of being implemented in the sense that, the requisite infrastructure for the same were not in place. He has contended that, the mediation Centre had become operational and started accepting application for mediation and settlement under the provisions of the Act of 2015 only after December 11, 2020. He has referred to the notification dated December 11, 2020 in this regard. According to him, the plaintiff cannot be non-suited for not availing of a remedy which was not available to the plaintiff at the time of institution of the suit or at the time of amending the plaint on January 7, 2020.
11. Learned advocate appearing for the plaintiff has contended that, Section 12A does not contemplate inherent lack of jurisdiction of the Court to entertain the suit. According to him, only the suit which does not contemplate any urgent relief falls within the category of the embargo envisaged under Section 12A of the Act of 2015. He has contrasted the provisions of Section 11 of the Act of 2015 with that of Section 12A of the Act of 2015. He has submitted that, the bar under Section 11 of the Act of 2015 is absolute and is not contemplated under Section 12A of the Act of 2015.
12. Learned advocate appearing for the plaintiff has submitted that the requirement to exhaust the remedy of pre-institution mediation or settlement is a procedural provision. In support of such contentions, he has relied upon Rule 3 (2) of the mediation rules.
13. Relying upon 2021 SCC OnLine Cal 429 (Dhanbad Fuels Ltd v. Union of India) and 2021 SCC OnLine Bom 195 (Ganga Taro Vaziram v. Deepak Raheja) learned advocate appearing for the plaintiff has submitted that, provisions of Section 12A of the Act of 2015 are directory and not mandatory.
14. Relying upon AIR 1969 SC 439 (Mussamia Imam Haider Bax Razvi v. Rabari Gobindbhai Ratnabhai) learned advocate appearing for the plaintiff has submitted that, the provisions of Section 12A is only an attempt to encourage mediation and does not oust the jurisdiction of the Court if recourse to mediation is not availed of. According to him, the bar of jurisdiction must be expressed by necessary implication.
15. Relying upon (2006) 2 SCC 777 (Vidyawati Gupta v. Bhakti Hari Nayak) learned advocate appearing for the plaintiff has submitted that, if the pre-condition prescribed under Section 12A of the Act of 2015 is not complied with, the same will not render the plaint invalid since such non-compliance is curable in nature and will date back to the presentation of plaint.
16. On the issue of purposive interpretation learned advocate appearing for the plaintiff has relied upon AIR 1955 SC 661 (Bengal Immunity Company Ltd. v. State of Bihar).
17. Referring to Section 80 of the Code of Civil Procedure, 1908, learned advocate appearing for the plaintiff has submitted that, no notice is required to be served upon the defendant Nos. 1 to 3. No relief has been prayed for and against the defendant Nos. 4 and 5. He has relied upon (2011) 12 SCC 695 (National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad) and (1994) 2 LW 96 (Hindustan Petroleum Corporation Ltd. v. A.K. Annadurai) in this regard.
18. The plaintiff has filed the present suit against five defendants. The plaintiff has claimed money decree against the first three defendants in the suit. The plaintiff has no claim against the fourth and the fifth defendant in the suit. The fifth defendant is the government of West Bengal. The fifth defendant has been mis-described. The fifth defendant ought to have been the State of West Bengal.
19. The defendant Nos. 1 and 2 have urged primarily two grounds for rejection of the plaint and for revocation of leave granted under Clause 12 of the Letters Patent, 1865. One of the grounds that the defendant Nos. 1 and 2 have urged is lack of notice under Section 80 of the Code of Civil Procedure, 1908. The plaintiff has admittedly not issued a notice under Section 80 of the Code of Civil Procedure, 1908.
20. In International Textile Corporation Ltd. (supra) the Supreme Court has held that, the identity of a government company remains distinct from the government. The Madras High Court in Hindustan Petroleum Corporation Ltd. (supra) has noted that, a government company is not a government within the meaning of Section 80 of the Code of Civil Procedure, 1908.
21. None of the defendants apart from the fifth defendant is a legal entity in respect of which, a notice under Section 80 of the Code of Civil Procedure, 1908 is required to be issued prior to filing of the suit or the rigours of Section 80(2) of the Code of Civil Procedure, 1908 are to be followed. Since the plaintiff has not claimed any relief as against the fifth defendant, and the State of West Bengal or its officers are not required to redress any grievance of the plaintiff, Section 80 of the Code of Civil Procedure, 1908 is not attracted in the facts and circumstances of the present case. Non issuance of notice under Section 80 of the Code of Civil Procedure, 1908 is therefore not fatal to this suit.
22. The plaintiff had presented the instant suit on December 7, 2018 when leave under clause 12 of the Letters Patent, 1865 was granted. The plaintiff had caused issuance of the writ of summons on February 22, 2019. The defendant No. 2 had received the writ of summons on April 4, 2019. The defendant had entered appearance on April 17, 2019. The defendant Nos. 1and 2 had taken out an application for extension of time to file written statement. The plaintiff had filed an application under Chapter XIIIA of the Calcutta High Court Original Side Rules. The plaintiff had thereafter filed an application for amendment of the plaint. The first application for amendment was allowed on November 20, 2019. The plaintiff thereafter had withdrawn the application under chapter XIIIA. The application of the defendant Nos. 1 and 2 for extension of time to file written statement was disposed of with direction that the defendants would be at liberty to file the written statement within a fortnight from the date of receipt of the writ of summons of the amended plaint. The application for amendment and the order passed therein was mentioned subsequently when, by an order dated December 6, 2019, the order dated November 20, 2019 was recalled with the liberty to the plaintiff to apply afresh if it was so entitled to in law. The plaintiff had filed the second application for amendment by a Master Summons dated December 20, 2019. Such application for amendment was allowed by the order dated January 7, 2020. The plaintiff had served a copy of the amended plaint on the defendants on February 12, 2020. However, the plaintiff did not take any steps for issuance of fresh writ of summons for the amended plaint. The defendants have prayed for rejection of the plaint and for extension of time to file written statement if the plaint is not rejected.
23. Admittedly, the plaintiff has not undertaken pre-institution mediation as envisaged under Section 12A of the Act of 2015. Section 12A of the Act of 2015 has come into the statute book with retrospective effect from May 3, 2018. Section 12A of the Act of 2015 has been introduced to the Act of 2015 through the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018. The Amendment Act of 2018 has been published in the Gazette of India on August 21, 2018.
24. Section 12A of the Act of 2015 contemplates pre institution mediation in accordance with such manner and procedure as may be prescribed by the rules made by the central government. The Standard Operating Procedure had been made and published rules on December 11, 2020. The mechanism stipulated under Section 12A of the Act of 2015 was not complete till December 11, 2020. The plaintiff had presented the present suit on December 7, 2018. On such date of presentation of the plaint of the present suit, the mechanism under Section 12A of the Act of 2015 was not complete. Therefore, on the date of presentation of the plaint of the instant suit, the plaintiff cannot be held responsible for a mechanism which the statute contemplated to be in place and was not so.
25. Section 12A of the Act of 2015 has stipulated pre-institution mediation. Post institution mediation is possible under Section 89 of the Code of Civil Procedure, 1908. Mediation post institution of the suit cannot be said to be mediation within the meaning of Section 12A of the Act of 2015.
26. The parties have raised the issue as to whether Section 12A of the Act of 2015 is mandatory or not. Section 12A of the Act of 2015 prohibits institution of a suit by a plaintiff without the plaintiff undertaking a pre-institution mediation, unless such plaintiff seeks urgent interim relief. Section 12 A of the Act of 2015 has specified an embargo in the institution of a suit without the plaintiff undertaking a pre-institution mediation in such case where the plaintiff is not seeking urgent interim relief.
27. The object of the Act of 2015 is to expedite the disposal of a commercial dispute. Such object is achieved through compulsory pre-institution mediation. The time frame provided under the compulsory pre-institution mediation allows a commercial dispute to be successfully resolved consuming such a time span within which it is not possible for the Court to finally adjudicate the suit.
28. In Terai Overseas Private Limited (supra) the plaintiff therein did not plead anything about Section 12A of the Act of 2015 in the plaint. There the plaintiff did not seek urgent interim relief for dispensation with pre-institution mediation.
29. Section 12A of the Act of 2015 has used the word “shall”. Mohan Singh (supra) has held that the word “shall” is not always decisive as to whether the provision is mandatory or directory. It has observed that, regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory.
30. In Haridwar Singh (supra) the Supreme Court has observed that prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is mandatory. ITC Ltd. (supra) has observed that the word “shall” invariably raises a presumption that the particular provision is imperative. In Manbodhan Lal Srivastava (supra) the Supreme Court has construed the provisions of Article 320 (3)(c) of the Constitution not to be mandatory and that non-compliance of such provisions does not afford a cause of action to approach a Court of law. In B.K. Mondal (supra) the Supreme Court has observed that in dealing with the question as to whether any provision is mandatory or directory, no general or inflexible rule can be laid down. In Ambay Cements (supra) the Supreme Court has observed that, the conditions prescribed by the authorities for grant of exemption under the Bihar Industrial Promotion Policy, 1995 are mandatory. In C. Bright (supra) the Supreme Court has held that, when the provisions of the statute relate to the performance of a public duty and the case is such that to hold acts done in neglect of this duty as null and void, would cause serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, the practice of the Courts should be to hold such provisions as directory. In Bihar Rajya Bhumi Vikas Bank Samiti (supra) the Supreme Court has observed that, the rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. In Delhi Airtech Services Private Limited (supra) the Supreme Court has observed that, the word “shall” would normally be mandatory while the word “may” would be directory.
31. Mussamia Imam Haider Bax Razvi (supra) the Supreme Court has considered the provisions of Sections 70 and 85 of the Bombay Tenancy and Agricultural Lands Act, 1948 and held that the same did not bar the jurisdiction of the civil Court to decide the issue as to whether the defendants were tenants. In Vidyawati Gupta (supra) Supreme Court has noted that, the requirements of Order 6 and Order 7 of the Code of Civil Procedure, 1908 was procedural and that any omission in respect thereof will not render the plaint invalid. The defect can be cured and that the same shall relate back to the date of presentation of the plaint. In Bengal Immunity Co. Ltd. (supra) the Supreme Court has noted that purposive interpretation of the statute can be made.
32. The Supreme Court in (1977) 1 SCC 379 (Seth Loonkaran Sethiya v. Mr. Ivan E. John) has held that Section 69 of the Indian Partnership Act, 1932 although procedural is mandatory. The Supreme Court in (1977) 1 SCC 257 (State of Maharashtra v. Chandrakant) has held that, Section 80 of the Code of Civil Procedure, 1908 is mandatory. In (2013) 10 SCC 178 (State of Kerala v. Sudhir Kumar) the Supreme Court has held that, a suit filed without complying with the provisions of Section 80(1) of the Code of Civil Procedure, 1908 cannot be regularised by filing an application under Section 80(2). The Supreme Court in (2019) 12 SCC 210 (SCG Contracts (India) Private Ltd. v. K.S. Chamankar Infrastructure Private Ltd.) has held that, the time to file written statement as prescribed by the Act of 2015 is mandatory.
33. In Dhanbad Fuels Ltd. (supra) the Court had noted the fact that the suit in that case was filed in August 2019 and that the Standard Operating Procedure for Pre-institution Mediation and Settlement was prescribed on December 11, 2020. The fact scenario in the present case is different. In the Ganga Taro Vazirani (supra) the Bombay High Court has held that, Section 12A of the Act of 2015 is a procedural provision and if there is a substantial compliance, the plaintiff cannot be non-suited.
34. Section 69 of the Indian Partnership Act, 1932 and Section 80 of the Code of Civil Procedure, 1908 have prohibition against institution of a suit without satisfaction of the parameters laid down therein. Both provisions have been held to be procedural but mandatory. Similarly, Section 12A of the Act of 2015 prohibits institution of a suit where the plaintiff does not undertake pre-institution mediation in a case where the plaintiff does not require urgent interim relief. The bar is on the institution of the suit, keeping in mind the distinction between “filing” and “institution” of a suit under the Code of Civil Procedure, 1908. To my mind, the bar under Section 12A of the Act of 2015 is absolute when the plaintiff has failed to comply with the parameters laid down therein. Section 12A of the Act of 2015 has to be held to be mandatory with effect from December 12, 2020 being the date immediately subsequent to the date when the Standard Operating Procedure for undertaking pre-institution mediation in terms of Section 12A of the Act of 2015 was available from. This view has been garnered from C. Bright (supra) were the Supreme Court has held that when the obligation to perform a public duty rest upon a public servant, the plaintiff cannot be faulted for it. Subsequent to December 11, 2020 the entire mechanism under section 12A of the Act of 2015 has been fully operational. Therefore, on and from December 12, 2020 a plaintiff cannot take the shelter of absence of infrastructure to forego a pre-institution mediation when it seeks no urgent relief.
35. The defendants and in fact the parties had concentrated on Section 80 of the Code of Civil Procedure, 1908 and Section 12A of the Act of 2015 in the course of their respective submissions. No other points have been raised by the parties.
36. The defendants and in fact the parties had concentrated on Section 80 of the Code of Civil Procedure, 1908 and Section 12A of the Act of 2015 in course of their submissions. No other points have been raised by the parties.
37. In view of the discussions above no order need be passed in IA GA No. 6 of 2020 as the plaintiff cannot be non-suited due to the absence of the infrastructure under Section 12A of the Act of 2015 at the time of institutions of the suit. IA GA No. 7 of 2020 is dismissed without any order as to costs.