Litigants should not suffer for counsel’s negligence where record demonstrates compliance with Section 12A of CC Act.

The Petitioner, a partnership firm, filed a commercial suit [CS (Comm.) 13/2019] for recovery of ₹94,94,013/- against the Respondent.

On 17.12.2022, the Trial Court rejected the plaint under Order VII Rule 11 of the CPC for non-compliance with the mandatory pre-institution mediation required by Section 12A of the Commercial Courts Act ("CC Act"), citing the precedent Patil Automation (P) Ltd. v. Rakheja Engineers (P) Ltd.

The Petitioner subsequently filed a Review Petition, asserting that they had actually complied with Section 12A and possessed a "Non-Starter Report" dated 02.04.2019, which their previous counsel failed to highlight.

The Review Petition was filed with a 390-day delay, supported by an application for condonation of delay citing medical issues and time taken to retrieve records.

The Trial Court dismissed the delay application and the Review Petition on 30.09.2024 ("Impugned Order").

1. Whether the Trial Court erred in dismissing the application for condonation of delay in filing the Review Petition by adopting a hyper-technical approach.

2. Whether an error apparent on the face of the record existed in the order dated 17.12.2022 due to the Petitioner’s actual compliance with Section 12A of the Commercial Courts Act.

Section 114 and Order XLVII Rule 1 of the CPC regarding the limited scope of review, which is maintainable upon discovery of new evidence or an error apparent on the face of the record.

Section 5 of the Limitation Act, 1963, emphasizing a liberal rather than hyper-technical approach to "sufficient cause" for condoning delay.

Section 12A of the Commercial Courts Act, 2015, regarding mandatory pre-institution mediation, and the principle that a litigant should not suffer for the negligence or inadvertence of their counsel.

The High Court observed that while the Trial Court rejected the plaint for non-compliance with Section 12A, a "perusal of the Non-Starter Report clearly demonstrates" that the Petitioner had indeed initiated mediation, but the Respondent failed to appear.

This established an "error apparent on the face of record" because the document proving compliance was already part of the suit records but was overlooked due to the counsel's negligence.

Regarding the 390-day delay, the Court reasoned that courts must strike a balance and adopt a liberal approach to ensure substantial justice, especially when rejection of a delay application would cause irreparable prejudice and defeat the right to adjudicate a claim on merits.

The Court found the Petitioner had shown "sufficient bona fide reasons" for the delay and noted that a litigant should not be penalized for a counsel's failure to bring existing records to the court's attention.

The High Court allowed the petition and set aside the Impugned Order dated 30.09.2024; consequently, CS (Comm.) 13/2019 was restored to its original number before the District Judge, Commercial Court, Shahdara, to be adjudicated on its merits.