P&H HC Keeps ₹44.76-Crore MOU Recovery Suit Alive, Finding Earlier Withdrawn Suit Sought Different Relief

The plaintiffs first sued for a declaration that a memorandum of understanding dated 7 February 2018 was null and void, with consequential permanent injunction. After the trial court directed them to pay ad valorem court fee, they withdrew that suit without seeking permission to file a fresh one; their recorded statement said they had already paid the court fee on the claim in a separately filed suit.

In the second suit, they sought recovery of ₹44,76,70,071 and permanent injunction on the basis of the same memorandum. The defendants applied under Order VII Rule 11 read with Order XXIII Rule 1(4) CPC, arguing that the suit was barred by Order II Rule 2 and Order XXIII Rule 1(4), and that the plaintiffs had not complied with Section 12A of the Commercial Courts Act, 2015.

The trial court dismissed the application; the defendants challenged that order in revision.

Order VII Rule 11 CPC permits rejection of a plaint on the grounds specified in that rule; for this application, the court must examine the plaint, not evidence.

Order II Rule 2 requires a plaintiff to include the whole claim arising from the same cause of action and bars a later suit for a claim or relief omitted without leave.

Under Order XXIII Rule 1(4), a plaintiff who abandons or withdraws a suit without the required permission is precluded from instituting a fresh suit in respect of the same subject matter or part of the claim.

The court also referred to Cuddalore Powergen Corporation Ltd. v. M/s Chemplast Cuddalore Vinyls Ltd., 2025 SCC OnLine SC 82, on identifying the causes of action and applying Order II Rule 2, and to S. Valliammai v. S. Ramanathan, 2026 SCC OnLine SC 603, for the principle that an Order II Rule 2 bar ordinarily requires the defendant to establish it by comparing the plaints and cannot itself be a ground for rejection under Order VII Rule 11(d).

Section 12A of the Commercial Courts Act requires pre-institution mediation for commercial suits that do not contemplate urgent interim relief.

The court noted that the first suit sought a declaration that the memorandum was invalid, while the second sought recovery of a specified amount and permanent injunction. Although both suits related to the same memorandum, the court accepted that their nature was different and considered that the defendants had also filed a suit for declaration and specific performance concerning it. It therefore held that the second plaint should not be rejected at the threshold and that the dispute should proceed to written statements, framing of issues and evidence.

The court also relied on the plaintiffs’ recorded explanation for withdrawing the first suit—that court fee on the recovery claim had already been paid in the second suit—and found that they had not concealed that circumstance.

On Section 12A, it noted that the recovery suit also sought permanent injunction and that an application under Order XXXIX Rules 1 and 2 CPC had been filed; it consequently rejected the defendants’ objection.

It upheld the order dated 17 August 2026 and dismissed the civil revision; pending miscellaneous applications were disposed of.