Ms Yuksom Breweries Limited Through its authorised representative and PRO Mr Prem Shankar Gupta vs M/s Thomas Enterprises and Ano.

Court
High Court of Sikkim

CNR No.SKHC010002152025

THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Extra Ordinary Jurisdiction)

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SINGLE BENCH: THE HON’BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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W.P. (C) No. 77 of 2025


M/s Yuksom Breweries Limited,
Through its authorised representative and PRO Mr.
Prem Shankar Gupta,
Malli, District Namchi, Sikkim.
….... Petitioner

Versus



1. M/s Thomas Enterprises.
Kalyani Apartments, Sevoke Road,
Siliguri-734401, West Bengal.

2. Mr. N. L. Thomas,
Proprietor M/s Thomas Enterprises,
Kalyani Apartments, Sevoke Road,
Siliguri-734401, West Bengal.

..….. Respondents


Petition under Article 227 of the Constitution of India, 1950.

{Against the impugned Order dated 08.07.2025 passed by the Learned Commercial Court at
Namchi in Commercial Suit Case No.01 of 2021 titled M/s Yuksom Breweries Ltd. vs. M/s
Thomas Enterprises & Anr.}

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Appearance:
Mr. Jorgay Namka, Senior Advocate (through V.C.). Mr. Sawal Rai,
Advocate for the Petitioner.

Mr. Anand Verma, Ms. Pabitra Pradhan and Ms. Pratima Subba
Limboo Advocates for the Respondents.

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Date of Judgment reserved : 15.06.2026

Date of Judgment Pronounced : 26.06.2026
Date on which uploaded : 26.06.2026

J U D G M E N T

Bhaskar Raj Pradhan, J.
1. The present petition invoking Article 227 of the Constitution of
India, 1950 challenges the impugned order dated 08.07.2025 passed
by the learned Commercial Court at Namchi in Commercial Suit Case

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W.P. (C) No. 77 of 2025
M/s Yuksom Breweries Limited vs. M/s Thomas Enterprises & Anr.



No.01 of 2021 titled M/s Yuksom Breweries Limited vs. M/s Thomas
Enterprises & Anr.
2. The learned Commercial Court on examination of section 12A
of the Commercial Courts Act, 2015 came to the conclusion that pre-
institution mediation is mandatory for commercial disputes before
filing the suit, unless urgent interim relief is needed. The learned
Commercial Court relied upon M/s Patil Automation Private
1
Limited & Ors . vs. Rakheja Engineers Private Limited which
held that section 12A was mandatory and that suits filed without
complying with this mandate must be rejected under Order VII Rule
11 of the Code of Civil Procedure, 1908 unless urgent interim relief is
sought. The learned Commercial Court opined that the records reveal
that the case was registered without complying with the mandate of
section 12A of the Commercial Courts Act, 2015 (the Act, 2015).
Accordingly, the learned Commercial Court disposed of the
Commercial Suit Case No.01 of 2021.
3. The present petition under Article 227 of the Constitution of
India thus challenges the reasoning and the rationale of the
impugned order.
4. According to the petitioner the suit was in fact instituted as a
Money Suit No. 03 of 2016 in the Court of the learned District Judge,
Namchi on 18.08.2016. On 30.07.2018 the learned District Judge
passed the final judgment. The said judgment was challenged before
this Court by filing RFA No.04 of 2018. RFA No.04 of 2018 was
disposed of by a Division Bench of this Court vide Order dated
01.11.2021. The Division Bench was of the view that the judgment
and decree dated 30.07.2018 passed by the learned District Judge in

1
2022 SCC OnLine SC 1028

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M/s Yuksom Breweries Limited vs. M/s Thomas Enterprises & Anr.



Money Suit No.03 of 2016 must be set aside and the money suit
transferred to the files of Commercial Court to be tried by as per the
provisions of the Act 2015. On 29.03.2022 the learned Commercial
Court disposed of Commercial Case (Money Suit) No.02 of 2022 titled
M/s Yuksom Breweries Limited vs. M/s Thomas Enterprises and
Another by holding that the plaintiff ought to have exhausted the
remedy of pre-institution mediation as there was no pleading that the
plaintiff was facing serious economic crisis and had also not prayed
for urgent interim relief.
5. Although the petitioner had preferred Writ Petition (C) No. 21 of
2022 before this Court the learned Senior Counsel representing the
petitioner desired to withdraw it with liberty to approach the learned
Commercial Appellate Court to exhaust the appeal remedy.
Thereafter, Commercial Appeal No.01 of 2023 was disposed of by the
learned Commercial Court vide order dated 31.07.2024 setting aside
the order dated 29.03.2022 passed by the learned Commercial Court
and restoring it back to be tried as per law. It transpires that due to
the pecuniary jurisdiction issues the learned Commercial Court vide
order dated 13.12.2024 registered Commercial Suit Case No.01 of
2021 and issued notice to the parties returnable by 05.02.2025.
Thereafter, the learned Commercial Court passed the impugned order
dated 08.07.2025 disposing of the Commercial Suit and directing the
parties to take appropriate steps in terms of section 12A of the
Commercial Courts Act, 2015.
6. The learned Senior Counsel for the petitioner contends that the
petitioner had instituted the money suit in 2016 when no
Commercial Court was set up which was decreed vide judgment and
decree dated 30.07.2018 and therefore, the Commercial Suit Case

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No. 01 of 2021 was not a new case filed and was a suit pending
adjudication after several rounds of meetings having taken place to
resolve the issue amicably. It is therefore, contended that since
rd
section 12A was inserted into the Commercial Courts Act on 3 May,
2018 only when the money suit no.03 of 2016 had already been
instituted, the mandatory nature of section 12A could not have been
imposed upon the plaintiff.
7. This Court is of the view that the issue sought to be raised by
the learned Senior Counsel for the petitioner and vehemently opposed
by the learned counsel for the respondent is squarely covered by the
ratio of the judgment passed by the Supreme Court in M/s Dhanbad
2
Fuels Private Limited vs. Union of India and Anr in which it was
held:
“46. In Patil Automation (supra), this Court held that the
language of Section 12-A is plainly imperative in nature,
and any commercial suit instituted without adhering to
this provision is liable to be rejected under Order 7 Rule
11CPC. However, recognising that the amending Act
containing Section 12-A is a “toddler”, and that the “law
necessarily would have teething problems at the nascent
stage”, this Court declared the aforesaid declaration to
operate prospectively, effective from 20-8-2022, so that the
stakeholders may be sufficiently informed. In the instant
case, as the money suit was filed by the respondents
much prior to the decision in Patil Automation (supra), it
is squarely protected by the prospective ruling of this
Court.
47. This Court had further held that the protective
umbrella of prospective overruling in Patil
Automation (supra) would not apply to plaints which were
rejected, and no steps had been taken within the period of
limitation; or such rejection had been acted upon by filing
a new suit; or if the plaint violating Section 12A had been
filed after the jurisdictional High Court has declared the
provision to be mandatory. Indisputably, the Union of
India does not fall under any of the other aforementioned
exceptions. Thus, we find it difficult to agree with the
submission canvassed by the appellant that the bar of
Section 12A of the 2015 Act would continue to apply to the

2
2025 INSC 696

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money suit filed by the respondents despite there being a
prospective declaration in Patil Automation (supra). ”

xxxxxxx

“63(b). If the suit was instituted prior to 20-08-2022
without complying with Section 12-A of the 2015 Act, and
the same does not fall within one of the exceptional
categories as explained in paragraph 47 of this judgment,
then it would be open to the court to keep the suit in
abeyance and direct the parties to explore the possibility
of mediation in accordance with the 2015 Act, the PIMS
Rules and the 2020 SOP. ”

8. Thus, keeping in mind that the mandatory provision of section
rd
12A inserted on 3 may 2018 in the Commercial Courts Act, 2015
was to operate prospectively effective from 20.08.2022, so that the
stakeholders may be sufficiently informed. It is noticed that the
money suit which was transferred to the Commercial Court was
originally filed on 18.08.2016 much prior to 20.08.2022. It is also
seen that the Division Bench of this Court had transferred the said
money suit to the files of the Commercial Court vide order dated
01.11.2021 much prior to 20.08.2022. The Commercial Case Money
Suit No.01 of 2021 was first disposed of after registration vide order
dated 04.03.2022 much prior to 20.08.2022. The first effective order
in the Commercial Case Money Suit No.02 of 2022 passed by the
learned Commercial Court mandating compliance of pre-institution
mediation is also dated 29.03.2022 much prior to 20.08.2022.
9. Therefore, this Court is of the view that although section 12A of
the Commercial Courts Act, 2015 is mandatory in nature, in view of
the judgment of the Supreme Court in M/s Dhanbad Fuels (supra) it
would not apply to the present case.
10. In the circumstances the impugned order dated 08.07.2025 is
set aside. The Commercial Suit Case No.01 of 2021 is restored to the
files of the learned Commercial Court for its disposal as per law.

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11. However, as noted by the learned Commercial Court that the
suit filed did not contemplate any urgent interim relief as held in
paragraph 63(b) of M/s Dhanbad Fuels (supra) it would be open to
the learned Commercial Court to keep the suit in abeyance and direct
the parties to explore the possibility of mediation in accordance with
the Commercial Courts Act, 2015, the Post Institution Mediation
Settlement Rules and Standard Operating Procedure, 2020.
12. The petition is disposed of with the above directions.


( Bhaskar Raj Pradhan )
Judge



































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