TRAVEL FOOD SERVICES PVT LTD vs MS HIMALAYA FOOD AND RECREATIONS

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Office Notes,
reports, orders
or proceedings
or directions
and Registrar’s
order with
Signatures

SL.
Date
No.

COURT’S OR JUDGE’S ORDERS

AO/384/2024


Travel Food Services Pvt Ltd
--Appellant

Versus
Ms Himalaya Food and Recreations and
another.
--Respondents

Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Subhash Upadhyay, J.

1. Sri Hardik Sah, learned counsel
holding brief of Sri Aditya Singh, learned
counsel for the appellant.
2. Sri T.S. Bindra (through V.C.) with
Sri Priyanshu Gairola, learned counsel
for respondent No. 1.

3. This Appeal, under Section 13 of
15.10.2
026
the Commercial Courts Act, 2015
(hereinafter referred to as ‘the Act’) is
directed against order dated 02.09.2024
passed by Commercial Court, Dehradun.
By the said order, leave sought by the
plaintiff (appellant) to institute
injunction suit in the month of August
2024, without complying with the
provisions contained in Section 12-A of
the Act was rejected.
4. We are not inclined to interfere with
the impugned order. Learned
Commercial Court has given valid reason

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for holding that it was not a case of
urgent interim relief.
5. Hon’ble Supreme Court in the case
of
Yamini Manohar vs. T.K.D. Keerthi
reported in has held
(2024) 5 SCC 815
that Section 12-A of the Commercial
Court Act is mandatory and any suit,
instituted violating the mandate of
Section 12-A of the Act, must be visited
with rejection of the plaint under Order
7 Rule 11 of Civil Procedure Code, 1908.
6. In the case of Dhandbad Fuels
Private Limited v. Union of India &
another, reported as (2025) 9 SCC
424, Hon’ble Supreme Court has held as
under:-
“ 52. Thus, it becomes clear from a perusal of the
aforesaid decision in Yamini Manohar [Yamini
Manohar v. T.K.D. Keerthi, (2024) 5 SCC 815 :
(2024) 3 SCC (Civ) 436] that the test under
Section 12-A is not whether the prayer for the
urgent interim relief actually comes to be allowed
or not, but whether on an examination of the
nature and the subject-matter of the suit and the
cause of action, the prayer of urgent interim relief
by the plaintiff could be said to be contemplable
when the matter is seen from the standpoint of
the plaintiff. Further, what is also to be kept in
mind by the courts is that the urgent interim
relief must not be merely an unfounded excuse by
the plaintiff to bypass the mandatory requirement
of Section 12-A of the 2015 Act.
70. We have discussed in detail that this Court in
Patil Automation [Patil Automation (P) Ltd. v.
Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 :
(2023) 1 SCC (Civ) 545] made its decision
prospectively applicable keeping in mind the
predicament of suits like the one at hand wherein
owing to a lack of clarity in law, Section 12-A of
the 2015 Act could not be complied with in
certain cases. Directing the institution of a fresh
suit would only result into the forfeiture of the

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court fees deposited by the respondents, which
would only be an unnecessary burden on the
public exchequer. The approach adopted by the
trial court and the High Court in keeping the suit
in abeyance and directing the parties to approach
the competent authority for mediation commends
more to us as it complies with a harmonious
reading of the decision in Patil Automation [Patil
Automation (P) Ltd. v. Rakheja Engineers (P) Ltd.,
(2022) 10 SCC 1 : (2023) 1 SCC (Civ) 545] and
prevents unnecessary delays and burden on the
public exchequer. Further, substantial progress in
the suit was not the only reason why the Court in
Patil Automation [Patil Automation (P) Ltd. v.
Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 :
(2023) 1 SCC (Civ) 545] gave prospective effect to
its decision. As we have discussed, factors like
forfeiture of court fees, ambiguity over the
applicability of Section 14 of the Limitation Act,
unsettling of settled cases, etc. were a few other
reasons which weighed with the Court in arriving
at its decision of according prospectivity to the
judgment. Thus, we find it difficult to accept the
argument advanced by the appellant that the
plaint must be rejected for the reason that the
suit has not made substantial progress after its
institution.
Conclusion
71. In light of the aforesaid discussion, we
summarise our findings as under:
71.1. The decision of this Court in Patil
Automation [Patil Automation (P) Ltd. v.
Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 :
(2023) 1 SCC (Civ) 545] lays down the correct
position of law as regards Section 12-A of the
2015 Act by holding it to be mandatory in
nature.
71.2. As held in para 104 of the decision in
Patil Automation [Patil Automation (P) Ltd. v.
Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 :
(2023) 1 SCC (Civ) 545] , the declaration of the
mandatory nature of Section 12-A of the 2015
Act relates back to the date of the amending
Act.
As held in para 113.1 of the decision
71.3.
in Patil Automation [Patil Automation (P) Ltd. v.
Rakheja Engineers (P) Ltd., (2022) 10 SCC 1 :
(2023) 1 SCC (Civ) 545] , any suit which is
instituted under the 2015 Act without
complying with Section 12-A is liable to be
rejected under Order 7 Rule 11. However, this
declaration applies prospectively to suits
instituted on or after 20-8-2022.
. A suit which contemplates an urgent
71.4
interim relief may be filed under the 2015 Act
without first resorting to mediation as
prescribed under Section 12-A of the 2015 Act.

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Unlike Section 80(2)CPC, leave of the
71.5.
court is not required to be obtained before filing
a suit without complying with Section 12-A of
the 2015 Act.
71.6. The test for “urgent interim relief” is if
on an examination of the nature and the
subject-matter of the suit and the cause of
action, the prayer of urgent interim relief by the
plaintiff could be said to be contemplable when
the matter is seen from the standpoint of the
plaintiff.
The Courts must also be wary of the
71.7.
fact that the urgent interim relief must not be
merely an unfounded excuse by the plaintiff to
bypass the mandatory requirement of Section
12-A of the 2015 Act.
71.8 . Even if the urgent interim relief
ultimately comes to be denied, the suit of the
plaintiff may be proceeded with without
compliance with Section 12-A if the test for
“urgent interim relief” is satisfied
notwithstanding the actual outcome on merits.
Suits instituted without complying
71.9.
with Section 12-A of the 2015 Act prior to 20-8-
2022 cannot be rejected under Order 7 Rule 11
on the ground of non-compliance with Section
12-A unless they fall within the exceptions
stipulated in paras 113.2 and 113.3 of the
decision in Patil Automation [Patil Automation
(P) Ltd. v. Rakheja Engineers (P) Ltd., (2022) 10
SCC 1 : (2023) 1 SCC (Civ) 545] .
In suits instituted without complying
71.10.
with Section 12-A of the 2015 Act prior to 20-8-
2022 which are pending adjudication before the
trial court, the court shall keep the suit in
abeyance and refer the parties to time-bound
mediation in accordance with Section 12-A of
the 2015 Act if an objection is raised by the
defendant by filing an application under Order
7 Rule 11, or in cases where any of the parties
expresses an intent to resolve the dispute by
mediation.
Thus, the answer to the question formulated
72.
by us whether a suit filed without complying with
Section 12-A of the 2015 Act must be dismissed
or be kept in abeyance with a direction to the
parties to explore mediation is as follows:
72.1. If the suit was instituted prior to
20.08.2022 without complying with Section 12-
A of the 2015 Act, then it must meet with
rejection under Order 7 Rule 11, either on an
application by the defendant or suo motu by
the court.
If the suit was initituted prior to
72.2.
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

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explained in para 55 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 medication in accordance with the
2015 Act, the PIMS Rules and the 2020 SOP.”

7. In his application, seeking
exemption from the requirement of
Section 12-A of the Act, appellant
himself stated that if there is any
possibility of settlement and defendants
bonafidely come forward to resolve the
dispute, then the Court can direct the
parties to sit for settlement, which shall
be accepted by the plaintiff.
8. Learned Commercial Court was,
therefore, justified in returning the
plaint for ensuring compliance of Section
12-A of the Act.
9. Thus, there is hardly any scope for
interference with the impugned order.
The appeal fails and is dismissed.
10. No order as to costs.
11. Pending application, if any, also
stands dismissed.



(Subhash Upadhyay, J.) (Manoj Kumar Tiwari, A.C.J.)
15.10.2026 15.10.2026
Rathour




NITI RAJ SINGH
ASWAL
Digitally signed by NITI RAJ SINGH ASWAL DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT
OF UTTARAKHAND, 2.5.4.20=eacc6757ee7881e933ff8934f07477005aa85f9802a3a08b 08d1369512ea30f3, postalCode=263001, st=UTTARAKHAND,
serialNumber=44EB54CBF00B7698CB6F10C2CE3D26F5C22DACF 4F4610C1FE58A58531726FBB0, cn=NITI RAJ SINGH ASWAL Date: 2026.10.17 02:21:27 -07'00'