IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

MUMBAI

CRIMINAL WRIT JURISDICTION

CRIMINAL WRIT PETITION No. of 2023

IN THE MATTER OF Writ

petition under Article 227

of Constitution of India;

And
 IN THE MATTER OF Order

dated 22.12.2023 passed

by the Ld. Additional

District & Sessions Judge

II at Thane in Commercial

Suit No. 15 of 2023

allowing plaintiff to

withdraw suit with liberty

to file afresh

Ruman Roy, daughter of

Moti Lal Roy, resident of CA

5/11, Desh Bandhu Nagar,

Rajarhat Gopalpur M, North

24 Parganas, Kolkata –

700059.

…Petitioner

– Versus –
Excellar Healthcare Private

Limited, through Hemant

Excellar Healthcare Private

Limited, a private limited

company with registered

office at 202, Silverline, Opp.

Holycross High School, Old

Mumbai Pune Road, Thane,

Police Station & Post Office –

Thane, PIN – 400601.

…Respondent

To,

THE HON’BLE CHIEF JUSTICE AND PUISNE

JUDGES OF

THE HON’BLE HIGH COURT OF

JUDICATURE AT BOMBAY.
 THE HUMBLE PETITION OF THE

PETITIONER ABOVENAMED:

MOST RESPECTFULLY SHEWETH:-

On behalf of the Petitioner above-named it is stated and

submitted as under:-

1. That the instant writ petition has been preferred by

the petitioner under Article 227 of the Constitution

of India challenging the order dated 22.12.2023

passed by the Ld. Additional District & Sessions

Judge II at Thane in Commercial Suit No. 15 of

2023 allowing the respondent plaintiff to withdraw

suit with liberty to file afresh after the petitioner’s

demurrer, without deciding the application under

Order 7 Rule 11 of the Code of Civil Procedure

challenging the said Court’s jurisdiction as well as

ignoring the mandate laid down by the Hon’ble

 Supreme Court in Patil Automation wherein the

Apex Court has held that a commercial suit

violative of Section 12A of the Commercial Courts

Act, “must” be rejected under Order 7 Rule 11 of

the CPC.

2. That the petitioner is the sole proprietor of M/s Jai

Mata Di Enterprise, who was once a consignee

agent of the respondent company.

3. That the respondent is a private limited company

who is the plaintiff in the commercial suit no. 15 of

2023 before the Ld. Additional District & Sessions

Judge II at Thane.

4. That on 06.10.2023, the plaintiff, without availing

compulsory pre-institution mediation, filed the

commercial suit before the Ld. Additional District &

 Sessions Judge II at Thane which is annexed

hereto and marked as “EXHIBIT-A”

5. That on 11.10.2023, the said suit was presented

before the Hon’ble Court below and accordingly,

summons were issued to the defendant therein /

the petitioner herein. A true copy of the summons

received by the petitioner is annexed herewith and

marked as “EXHIBIT B”.

6. That on 03.11.2023, the petitioner appeared before

the Hon’ble Court below and filed Vakalatnama as

well as demurrer in the form of written preliminary

objections inter alia stating that the suit is not

maintainable since no pre-institution mediation

was attempted by the plaintiff, hence being

violative of Section 12A of the Commercial Courts

Act, 2015, as well as on the ground of lack of

 jurisdiction. The Hon’ble Court below directed the

petitioner to file written statement. A true copy of

the preliminary objection is annexed herewith and

marked as “EXHIBIT C”.

7. That on 28.11.2023, the petitioner filed written

statement as well as an application under Order 7

Rule 11 of the Code of Civil Procedure, 1908,

seeking rejection of plaint inter alia on the grounds

of the suit being not maintainable as being violative

of Section 12A of the Commercial Courts Act, 2015,

as well as on the ground of lack of territorial

jurisdiction as per the terms of the consignee

agency agreement agreed upon by both parties in

the suit proceedings. A true copy of the application

under Order 7 Rule 11 of the CPC is annexed

herewith and marked as “EXHIBIT D”.

8. That on the same day, i.e, 28.11.2023, the

respondent filed an application under Order 23

Rule 3 of the CPC seeking withdrawal of the suit

inter alia on the same ground that the petitioner

had taken in her preliminary objection and

application under Order 7 Rule 11, i.e, violative of

Section 12A of the Commercial Courts Act, 2015,

read with the landmark judgment of the Hon’ble

Supreme Court in Patil Automation (P) Ltd. v.

Rakheja Engineers, (2022) 10 SCC 1. A true copy of

the withdrawal application is annexed herewith

and marked as “EXHIBIT E”.

9. That on 02.12.2023, the petitioner filed pursis

presenting service proof of the Order 7 Rule 11

application to the respondent. The respondent,

strangely despite having filed application seeking

withdrawal, objected to the pursis and strongly

 demanded, in writing, copy of the written

statement of the petitioner. A true copy of the

pursis dated 02.11.2023 is annexed herewith and

marked as “EXHIBIT F”.

10. That thereafter, on 12.12.2023, the petitioner filed

written objection to the application for withdrawal

filed by the plaintiff inter alia on the ground that

the same was filed as an afterthought, after the

defendant’s demurrer, the defendant petitioner has

opened up her entire defence along with supporting

documents, and that as per the Supreme Court

judgment in Patil Automation (supra), the same

“must” be rejected. A true copy of the written

objection to the application for withdrawal is

annexed herewith and marked as “EXHIBIT G”.

11. That on 18.12.2023, the petitioner herein filed a

written note of arguments along with copies of

judgments supporting the contentions of the

petitioner. The petitioner had submitted that in

Patil Automation (P) Ltd. v. Rakheja Engineers,

(2022) 10 SCC 1, Supreme Court has upheld

Section 12A as mandatory provision and a suit

which violates Section 12A by failing to avail

mediation “must” be rejected. It is thus evident

that no discretion is given to a Court to entertain a

suit barred by Section 12A, and the Court must

suo moto reject the plaint when the suit has been

filed in violation of Section 12A. The respondent

Plaintiff had also admitted in the withdrawal

application that the ratio of Patil Automation

(supra) is squarely applicable to the plaintiff’s case

and that the suit is void in law. It was also

submitted that if liberty to file afresh is granted,

the same may be misused by the plaintiff to

establish res judicata on the question of territorial

 jurisdiction to their favour and might result in

prejudice against the defendant. A true copy of the

written notes of arguments filed by the petitioner is

annexed herewith and marked as “EXHIBIT H”.

12. That the petitioner had prayed that when the Order

7 Rule 11 CPC application is on record and the

manifestation of the same has been from the date

of filing of preliminary objection, which was filed

way before the application for withdrawal, keeping

in mind the decision in Patil Automation and that

the defendant petitioner’s demurrer was filed

before, the Court below ought to decide the

application under Order 7 Rule 11 of CPC.

13. That on 22.12.2023, without considering the facts

and the position of the law as submitted by the

petitioner, the Hon’ble Court below allowed the

 withdrawal prayer of the plaintiff along with liberty

to file afresh. A true copy of the order dated

22.12.2023 is annexed herewith and marked as

“EXHIBIT I”.

14. That it is a fact that at present, the respondents

have a copy of the written statement of the

petitioner along with all documents, which the

respondent had demanded of the petitioner after

having filed an application for withdrawal. It is

highly likely that the respondent plaintiff would

now approach the court with a modified suit having

rebutted the objections of the petitioner in the

written statement. The same is likely to be

prejudicial against the petitioner and the Hon’ble

Court below has erroneously not granted any

protection to the petitioner to that extent.

15. That it is the submission of the petitioner that the

petitioner had well pointed out in her application

under Order 7 Rule 11 CPC that on bare reading of

the Agreement for Consignee agent, it is has been

clearly mentioned in the agreement that “This

agreement is signed on 1st day of April – 2022 for

consignment agency between M/s Excellar

Healthcare Pvt. Ltd. of 202, Silverline, Opp. Holy

Cross High School, Old Mumbai Pune Road, Thane –

400601 Regd. Office., herein after known as

Company and M/s Jai Matadi Enterprise of

Ramkrishna Apartment, 175 / 11, G.T Road,

Baidyabati, PS – Serampore, Hooghly – 712222 in

the state of West Bengal hereinafter known as

Consignee Agent have mutually agreed to market

the AQUA CULTURE FEED SUPPLEMENT &

PHARMACEUTICAL products of Excellar Healthcare

Pvt. Ltd. for the state of West Bengal under the

 following terms and conditions:”. Hence, it is clear

that the essence of the agreement for the plaintiff is

to market and sell its products in West Bengal and

West Bengal only, as per the agreement. It is also a

fact that all operations as per the agreement, all

transactions with stockists and dealers, all

marketing and every other task as per the

agreement has been carried out in West Bengal.

Hence, no part of the cause of action has arisen in

Thane. As such, the jurisdiction factor ought to

have been decided by the Hon’ble Court below. A

true copy of the consignee agency agreement is

annexed herewith and marked as “EXHIBIT J”.

16. That the law is settled with regard to Section 12A

of the Commercial Courts Act, 2015, that the Court

“must” reject a suit which is in violation of Section

12A. As per the recent decision of the Supreme

Court in Patil Automation (P) Ltd. v. Rakheja

Engineers (P) Ltd., (2022) 10 SCC 1, pre-institution

mediation is mandatory and the plaintiff cannot

evade pre-institution mediation and directly file a

suit before this Hon’ble Court. In this case, the

plaintiff has tactically evaded the same and the

Hon’ble Court below has also not verified the same

before admitting the suit. The Hon’ble Apex Court

has held as under –

“Any reluctance on the part of the Court to

give Section 12A, a mandatory interpretation,

would result in defeating the object and

intention of the Parliament. The fact that the

mediation can become a non-starter, cannot be

a reason to hold the provision not mandatory.

Apparently, the value judgement of the Law-

giver is to give the provision, a modicum of

 voluntariness for the defendant, whereas, the

plaintiff, who approaches the Court, must,

necessarily, resort to it...

…We declare that Section 12A of the Act is

mandatory and hold that any suit instituted

violating the mandate of Section 12A must

be visited with rejection of the plaint under

Order VII Rule 11.”

17. That it is a fact that the plaintiff has filed the

withdrawal application after the demurrer of the

defendant petitioner. It is evident that the very

basis of the present petition, which has been filed

right after the Defendant’s demurrer, is to prevent

this Hon’ble Court from exercising its own powers

and reject the plaint. This is a classic case where

the respondent plaintiff has deliberately and

 consciously played fraud upon the court and

mislead the Hon’ble Court below. The plaintiff has

tactically, by misleading the Court below, obtained

the entire defence of the petitioner without even

technically instituting a suit at all since the

previous suit was non est.

18. That it cannot be assumed that the plaintiff has

completely overlooked the landmark Patil

Automation judgment of the Supreme Court out of

a “formal defect” since such ignorance in a

commercial suit is of very serious nature, thus, the

principle of ignorantia juris non excusat should

apply against the plaintiff herein. In Karnataka

Rural Infrastructure Development Limited v. TP

Nataraja, Civil Appeal No. 5720 of 2021, the

Supreme Court has held that ignorance of law

cannot be an excuse to get out of the applicability

 of statutory provisions. Moreover, violation of

statutory provision is not a formal defect, hence,

withdrawal based on the ground of formal defect in

this case is untenable in law and the withdrawal

application was liable to be dismissed, and the suit

be rejected. As such, the impugned order is liable

to be set aside.

19. That it is submitted that the respondent plaintiff

could not have sought withdrawal of the suit based

on the preliminary objections of the petitioner

herein. The respondent plaintiff herein has

preferred the withdrawal only after preliminary

objections were filed by the petitioner came on

record and the respondent plaintiff had perused

and studied it. It is also a fact that on the same

date the respondent plaintiff filed the withdrawal

application, i.e, 28.11.2023, the petitioner had filed

 an application under Order 7 Rule 11 which was

served upon the respondent plaintiff before

02.12.2023 as well as the written statement as per

the direction of this Hon’ble Court below. Hence,

the trial had proceeded and the prayer for

withdrawal practically is a customized copy of the

petitioner’s demurrer (preliminary objections). As

such, the suit ought to have been dismissed on the

grounds as stated in the demurrer preliminary

objections, and thus, the impugned order is liable

to be set aside.

20. That in Selvam Estates v. Thangapandia

Maharajan (1991) 1 MLJ 421, the Hon’ble Madras

High Court, in hearing a suit wherein a mandatory

statutory provision has been violated, has observed

that a permission to withdraw the suit with liberty

to file a fresh suit cannot be granted, since the suit

 filed by a party without complying with the

requirements of such mandatory provision is fatal

and hence, the suit filed is void. The respondent

plaintiff’s case suffers similar fatal defect in the

roots of the suit and hence, is not a formal defect.

As such, the said suit was liable to be rejected

under Order 7 Rule 11 of the CPC.

21. That applying the principle of Selvam Estates

(supra) in the case of the petitioner, pre-institution

mediation, as per Patil Automation (supra), is a

condition precedent to registration of the

commercial suit. The registration after the

institution of the suit cannot cure the defect of

non-registration before the date of the suit. Hence,

the question of withdrawing a void plaint with

liberty to file afresh does not arise since it is not a

formal defect and as such, could not have been

 withdrawn, that too with liberty to file afresh. As

such, the impugned order is liable to be set aside

as being in violation of established position of law

as laid down by the Apex Court and the Madras

High Court.

22. That as per the Selvam Estates (supra) decision of

the Madras High Court, the so called “defect” is a

statutory pre-requisite and not a defect in

procedure or form. Failure to comply with 12A of

the Commercial Courts Act, 2015, and also

violating the mandate under the Patil Automation

(supra) decision of the Supreme Court, goes to the

roots of the suit and cannot be construed as a

“formal defect” within the meaning of Order XXIII of

CPC. As such, the said suit ought to have been

rejected by the Hon’ble Court below along with

necessary protection to the petitioner against any

 prejudice that might be caused due to the

respondent plaintiff having had access to the entire

defence of the petitioner herein. As such, the

impugned order is liable to be set aside as being

untenable in law.

23. That this is a case where the petitioner’s demurrer

has been admitted by the respondent plaintiff to be

valid. The entire language of the withdrawal

application is basically confirming the preliminary

objection of the petitioner to the extent of violation

of Section 12A of the Commercial Courts Act, 2015,

in light of the Patil Automation (supra) judgment.

With regard to withdrawal, the Supreme Court in

Sneh Gupta v. Devi Sarup, Civil Appeal No. 1085 of

2009, has also reiterated the English law that

“Before Judgment.— Leave may be refused to a

plaintiff to discontinue the action if the plaintiff is

 not wholly dominus litis or if the defendant has by

the proceedings obtained an advantage of which it

does not seem just to deprive him.” Applying this

principle, if the respondent plaintiff is allowed to

withdraw the suit after the petitioner herein has

gained or acquired the advantage, it would deprive

the petitioner of obtaining rejection of this plaint

which she has filed after the plaintiff had presented

the commercial suit and got summons issued to

the petitioner. As such, the impugned order is

liable to be set aside.

24. That the petitioner had already been issued

process and preliminary objection for dismissal of

suit on the ground of non compliance of mandatory

provision of Section 12A of Commercial Courts Act

and grounds of territorial jurisdiction as no

jurisdiction lies before the Hon’ble Court at Thane,

was also raised and written statement and

application under order 7 Rule 11 has already been

filed and served and the respondent plaintiff after

such preliminary objection and appearance of the

petitioner after about 55 days had already elapsed,

made a prayer for withdrawal of suit with liberty to

file afresh under Order XXIII rule 3 (Compromise

between parties) and return of court fees. The

petitioner has already opened up her defences and

pleadings are complete. Since liberty to file afresh

has been granted, the same may be misused by the

respondent plaintiff to establish res judicata on the

question of territorial jurisdiction to their favour

and might result in prejudice against the petitioner

and the Hon’ble Court at Thane ought to have

protected the petitioner to that extent. As such, the

impugned order is liable to be set aside.

25. The Petitioner states that there is no other

alternative, efficacious remedy other than moving

the instant petition under Article 227 of the

Constitution of India before this Hon’ble Court and

the reliefs as prayed for if granted would afford

adequate justice. No other application / petition

relating to the same cause of action is pending

before any court / forum.

26. That the Petitioner craves leave to add, amend,

delete, change, alter and modify any of the

foregoing paragraph/ grounds, with the permission

of this Hon’ble High Court.

27. That the Petitioner submits that there is no other

effective remedy available or left for the said

Petitioner, save and except to approach to this

Hon’ble Court by this present petition.

28. That the Petitioner states that she has approached

this Hon’ble Court as expeditiously as possible and

there is no delay in filing the present Petition. That

the delay if any may be condoned.

29. That the petitioner submits that the balance of

convenience and / or inconvenience are

overwhelmingly in favour of the orders being

passed as prayed for herein.

30. Unless orders are being passed as prayed for

herein, the Petitioner will suffer irreparable loss,

injury, and prejudice.

31. That the Petitioner states that this application is

bona fide and made in the interest of justice.

PRAYERS
Hence, in the above premises it is humbly prayed that

Your Lordships may be graciously pleased to –

a) Issue a writ in the nature of certiorari or any other

writ, direction or order calling for records and

thereby, setting aside the order dated 22.12.2023

passed by the Ld. Additional District & Sessions

Judge II at Thane in Commercial Suit No. 15 of

2023; and / or

b) Grant ad-interim stay in the order dated

22.12.2023 passed by the Ld. Additional District &

Sessions Judge II at Thane in Commercial Suit No.

15 of 2023 till disposal of the instant application;

and / or

c) Pass any other order / orders as the Hon’ble Court

may deem fit and proper in the eyes of the law and

in the interest of justice.

AND FOR THIS ACT OF KINDNESS AND JUSTICE,

THE PETITIONERS, AS IN DUTY BOUND, SHALL

EVER PRAY.

Dated this day of January, 2024

Petitioner

Advocate for the Petitioner

 VERIFICATION

I, Suvendu Ghosh, aged about 61 years, son of Kapil

Chandra Ghosh, resident of 33/1, Chatuspathi Lane,

Baidyabati, Hooghly, West Bengal, PIN - 712222, the

Petitioner no. 1 himself, and on behalf of the petitioners

2 and 3, do hereby state and declare on solemn

affirmation that whatever is stated here in above is true

and correct to the best of my knowledge and belief.

Solemnly affirmed at Kolkata

This day of October 2023

Petitioner

Advocate for the Petitioner