Refusal Of The Defendant To Amicably Settle The Dispute Satisfies The Requirement Of Pre-Litigation Mediation Under Commercial Courts Act: Delhi High Court

The Bench of Justice Prathiba M. Singh while reiterating that pre-litigation mediation as provided under Section 12-A of the CCA is a mandatory provision, held that the conduct of the defendant in refusing to amicably settle the dispute violates the spirit of Section 12A of CCA, therefore, he cannot turn around and object on the ground of non-compliance with the requirement.

The Court further reiterated that where the plaintiff is seeking an urgent relief, the requirement of pre-litigation mediation would not be a bar to the maintainability of the suit.

Facts

The plaintiff filed a suit seeking a permanent injunction restraining the Defendants from passing off of trademark, infringement of copyright, unfair competition, rendition of accounts, damages, and other reliefs.

The Plaintiff claims to be the registered proprietor of the mark 'BOLT' used in relation to ride-hailing, food and grocery delivery, rental of cars, e-bikes and scooters, Electric Vehicle (EV) charging stations/docks, worldwide. The Plaintiff has obtained various registrations for the mark 'BOLT' in several jurisdictions

The Plaintiff contended that the Defendants are using the identical mark with an identical colour 'BOLT', along with the logo thereof, in relation to an identical business of provision of charging points for EVs and the same is violative of the global reputation and goodwill acquired by the plaintiff.

The objections raised by the Defendant

The defendant objected to the maintainability of the suit on the following grounds:

• The suit is filed without complying with the mandatory requirement of pre-litigation mediation as provided under Section 12A CCA.
• A suit filed without compliance with the abovementioned requirement is liable to be dismissed.

The petitioner countered the objection raised by the defendant on the following grounds:

• The plaintiff is asking for an urgent relief, therefore, it falls into the exception carved out by the Supreme Court in para 81 of judgment in Patil Automation v. Rakheja Engineers Pvt. Ltd. Civil Appeal No. 5333 of 2022
• The plaintiff had served a legal notice on the defendant to amicably settle the dispute, however, the defendant had refused to settle the dispute amicably and threatened the plaintiff with legal action.

Analysis by the Court

At the outset, the Court reiterated that pre-litigation mediation in commercial matters is a mandatory provision as it helps in expeditiously resolving the dispute between the parties. The Court also highlighted the importance of interim reliefs in IPR suits.

The Court held that the mark adopted by the defendant is identical to the mark of the plaintiff, moreover, the consumers and mobile users can download the Plaintiff's mobile application, as also, the Defendants' mobile application, almost on a minute-to-minute basis, therefore, the plaintiff has made out a case of urgent relief.

The Court observed that the plaintiff had requested the defendant to amicably settle the dispute, however, the defendant in its reply had refused any chance of amicable settlement. Moreover, the tenor of the defendant's reply violated the letter and spirit of Section 12A of the CCA.

The Court held that the requirement of pre-litigation stands satisfied when the offer for mediation is rejected, refuted and condemned by the defendant.

The Court held that the reply of the defendant clearly indicated that it was not interested in amicably solving the dispute, instead, the hand of mediation which was lent by the Plaintiff was met with a tight slap. Therefore, it cannot now contend that the suit should be dismissed for non-compliance with mandatory mediation. The Court also imposed cost of Rs. 10,000/- on the defendant.

Accordingly, the Court allowed the application of the plaintiff seeking exemption from instituting pre-litigation mediation in accordance with Section 12A of the CCA.

Case Title: BOLT Technology OU v. Ujoy Technology Pvt. Ltd.

Citation: 2022 LiveLaw (Del) 824

Date: 29.08.2022

Counsel for the Plaintiff: Obhan, Ms. Taarika Pillai, Ms. Mehak Dhingra, Ms. Himangi Kapoor, Ms. Ayesha Guhathakurta, Mr. Ritik Raghuvanshi and Mr. Naveen Nagarjuna, Advocates.

Counsel for the Defendant: Mr. Naman Maheshwari and Mr. Garv Malhotra, Advocates.

Click Here To Read/Download Order