w the dictum laid by the Hon'ble Supreme Cat of India in Patil Automation v. Raheja Engineers wherein it held than Section

CRP. No.3168 of 2023For Petitioner : Mr.R.Srinivas, Senior counselFor respondent : Mr.Dhanaram Ramachandranfor D.R. Law Chambers ORDERThis petition has been filed to set aside the order dated 28.07.2023 passed in IA No.4 of 2023 in COS No.139 of 2023 on the file of the Principal District Judge Kancheepuram District at Chengalpattu2. The petitioner herein is the defendant in C.O.S NO. 139 of 2023 on the file of Principal District Court, Kancheepuram district, Chengalpatu filed by the respondent herein for the relief of declaration and permanent injunction. In the said suit after receipt of the notice the petitioner herein/defendant preferred an I.A NO. 4 of 2023 in C.O.S No. 139 of 2023 to reject the suit on the ground that respondent/plaintiff not complied with the mandate of Section 12 A of the Commercial courts Act, 2015 by instituting pre suit mediation. The said interim application was contested by the respondent/plaintiff by filing the counter objection and on hearing both sides the Trial Court dismissed the application by holding that the respondent/plaintiff prime facie established that there is urgency in approaching the court without exhausting pre institution mediation and court 2 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023also satisfied with the pleadings. Accordingly, dismissed the said application filed by the defendant. Challenging the same the defendant/petitioner filed this petition. 3. The learned counsel for the petitioner submits that the order passed by the Trial Court is unjust and arbitrary on the following grounds.i. The Lower Court also failed to appreciate that the respondent/plaintiff bas explicitly defied its direction to take steps for mediation by not calling the petitioner/defendant for mediation, which clearly establishes that the urgent relief claimed by the respondent/plaintiff was only for the sake of filing the suit by circumventing pre-suit mediation process and that they actually do not wam redressal by way of mediation.ii. The Lower Court has given an erroneous finding that given the nature of the suit. pre suit mediation that would go on for 3 months or more would frustrate the remedy available to the plaintiff despite being brought to its notice that the respondents/plaintiffs had whiled away 4 months in trying to getting the suit listed before the Hon'ble High Court, which has no jurisdiction, which time period could have otherwise been successfully utilized in the mediation of dispute.3 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023iii. The Lower Court failed to follow the dictum laid by the Hon'ble Supreme Cat of India in Patil Automation Pvt Ltd vs Raheja Engineers wherein it held than Section 12A of the Commercial Courts Act 2015, which mandates pre- institution mediation, is compulsory and suits which are filed violating the mandate of Section 12A must be rejected under Order VII Rule 11, in the face of apparent omission of urgent relief in the plaint iv. The Lower Court failed to appreciate that the interim injunction sought for in the interim application 'to restrain the defendant interalia from deviating from the terms of the contract dated 04.12.2019 along with the Minutes of meeting dated 07.12.2021 cannot be in any way perceived as an urgent relief as the nature of the 'interim relief is the main relief in disguise sought for in the plaint.v. The Lower Court has erred in holding that the plaintiff's action in approaching the High Court and the Lower Court on various occasions proves the plaintiff's need to redress plaint. the dispute and thereby mis-directed itself in dismissing the rejection of plaint.4 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 20234. Further to support his contention the petitioner relied the judgement of Court in the case of Patil Automation Private Limited and others Vs. Rakheja Engineers Private Limited reported in 2022 10 SCC94. Mediation must be perceived as a new mechanism of access to justice. We have already highlighted its benefits. 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. Section 12A elevates the settlement under the Act and the Rules to an award within the meaning of Section 30(4) of the Arbitration Act, giving it meaningful enforceability.The period spent in mediation is excluded for the purpose of limitation. The Act confers power to order costs based on conduct of the parties.5. By way of reply, the learned counsel for the respondent submits that the petitioner herein is the owner of the suit property measuring an extent about one acre plot in kancheepuram District and represented that they are going to construct the shopping mall under the name and style of ''Vijay Radha Multiplex Mall" ( in short referred as ''Mall''). Further, offered that they will construct five screens Multiplex Cinema property in the said 5 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023Mall and entered into lease agreement with him. Since the respondent is engaged in the business of film production in respect of the distribution of cinema films under the name and style of Miraj Cinemas. Accordingly, on 04.12.2019, entered into a lease deed in respect of muliplex cinema commercial complex as per the terms after construction of muliplex cinema theatre post completion of scope of the work of the petitioner, the multiplex property is handed over to the plaintiff for carrying out the fit out therein i.e. seats, sound, projectors, screens, it equipment, cafe equipment, acoustics , carpets etc and all this fit out work is generally carried out within 180 days from the hand over of the multiplex theatre provided that obligations is cast on the defendant to obtain the cinema operating license because accepting license in necessary of the terms between the parties recorded under the term sheet as per the terms this respondent agreed to pay five crores to the petitioner as interest free refundable security deposit the plaintiff bail out the defendant from financial difficulties and despite the fact that majority of the payments were not due to the defendant, remitted a sum of Rs. 4.5 crores to the defendant on different occasions. As per the terms, the petitioner agreed to hand over the property to the respondent after completing their scope of work along with the copy of valid completing and occupancy certificate on 6 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023or before 31.01.2020. However, the parties were caught in the inevitable grip of Covid - 19 pandemic. Thereafter, meeting was held between the plaintiff and the defendant's representative on 07.12.2021 and minutes of the meeting, inter alia agreed that plaintiff shall take possession of the demised premises between 15.01.2022 to 31.01.2022 for carrying out fit outs therein. On the basis of the mutual discussion terms were recorded in minutes of the meeting dated 07.12.2021. Subsequently, again the country was lockdown due to second wave of covid - 19 and as a result the plaintiff was not in a position to take up the possession of the multiple property between 15.01.2022 to 31.01.2022 as agreed under the minutes of meeting dated 07.12.2021. So, he send a mail dated 17.01.2022 wherein he stated that due to aforesaid position was not bale to take handover of the demised premises within the time line. Thereafter, another meeting was held on 08.02.2022 at Mumbai. Subsequently, after evaluation the respondent issued letter of acceptance on 25.02.2022 entered into a work contract with the defendant for execution of civil interior works for the value of 4,62,17,465/- and the same was accepted by the petitioner. Thereafter, payment of Rs. 1,25,00,000/- was paid towards work undertaken by the defendant/petitioner but the petitioner issued fresh demand towards lease 7 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023rent due to increase in material cost for that respondent raised some valid objection so that misunderstanding arosed. Subsequently, when the respondent attempted to carry out inspection of the demised premiss he was not been permitted for the reason best known to the petitioner . In fact, as per lease deed dated 04.02.2019 for 18 years said premises was given lease to him, any unapproved materials are used it would affect the terms. So, the respondent raised objection about the act of the petitioners instalments insisted the compromise. Thereafter, the petitioner demanded higher amount than agreed which would not accepted by the respondent as it against the terms of the leased agreement. All of sudden the petitioner terminated the lease deed unilaterally letter dated 08.11.2022. Having spent several crores of rupees the petitioner attempted to operate the theatre. Hence, the plaintiff filed the suit with an interim application to appoint advocate commissioner but the plaint was returned as present before the appropriate Court. Hence, the plaintiff filed the suit before the present Court and the same was taken on file. The plaint averments disclosed about the urgency of the plaintiff to approach the Court not to invoke pre institution mediation as required under Section 12 A of Commercial court, Act. On considering all the documents the Trial Court concluded that the that there was a emergency to take a case 8 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023on file. Accordingly, the case was taken on file. Subsequently, the application filed by the defendant to reject the plaint was rightly dismissed by the trial Court which needs no interference. Further, he relied the judgment of the Court reported in 2021 SCC 5220 in the case of Ashok Kumar Puri and Another Vs. S.Suncon Realtors Private Lts and Another: 9. The above observations of the Division Bench are fully applicable in the facts and circumstances of the present case. In the present case also, if it were not a commercial matter, the remedy of the petitioner against the impugned order would be to file a revision petition under Section 115 of the Code of Civil Procedure, 1908 (CPC). However, the said remedy has been barred under Section 8 of the Commercial Courts Act, 2015 in respect of commercial matters. Therefore, the scope of interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India is extremely narrow and limited only in respect of orders that are patently lacking inherent jurisdiction. This is not a case where the impugned order was passed by the Commercial Court without inherent jurisdiction.10. In the present case, the Commercial Court has exercised its jurisdiction and allowed the application for condonation of delay filed on behalf of the respondents. Even though there may be some merit in the contentions raised on behalf of the petitioners with regard to the non-est filing, that cannot be a ground for this Court to exercise jurisdiction under Article 227 of the Constitution of India and interfere with the decision of the Commercial Court. This would completely frustrate the objective behind the Commercial Courts Act, that commercial matters should be decided expeditiously and parties may not challenge interlocutory orders passed in the proceedings, except those which are specifically appealable.9 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 20236. On hearing both sides, the facts reveals that the petitioner is the owner of the demised premise, terms entered with lease agreement with the respondent which is engaged in the business of Movie exhibition centre with motive to providing best quality cinema and entertainment in the name and style of Mirage Cinemas. Accordingly, after construction of the mall the multiplex is to be handed over to the respondent for carrying out fit out material works to that effect they entered into an lease agreement on 04.12.2019 it is undisputed fact. The contention of the respondent is that due to covid - 19 the respondent was put into financial crisis so he was not able to do the interior work by taking possession of the property from the petitioner and the same was expressed to them and subsequently meeting was held terms were modified thereafter he spent near about 4.50 crores of rupees on various occasions. In spite of that the petitioner attempted to own the theatre with another parties by ignoring the terms of the lease agreement and also terminated the lease agreement unilaterally. Hence, the necessity arose for the plaintiff to approach the Court to get immediate relief though the suit was filed before this Court and thereafter same was returned and presented before the Commercial Court case was taken on file by 10 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023considering urgency of the plaintiff. After receipt of notice the defendant/petitioner filed the application to reject the plaint on the ground that the mandatory requirement for pre institution mediation was not complied by the plaintiff as required under Section 12 A of Commercial Court. Without exhausting such relief taken the case on file as such is erroneous one. Accordingly, he prayed to reject the plaint by filing the interim application wherein the Trial Court held that on seeing the plaint averments urgency established by the plaintiff therefore waiving off the Section 12 A of Commercial Court Act for pre institution mediation as such suit is maintainable and dismissed the same. By relying the ratio laid down in above referred cases the learned Counsel for the petitioner submits that pre institution mediation is mandatory one as contemplated under Section 12 A of Commercial Court Act but the Trial Judge ignoring the said mandatory provision taken the case on file as such is erroneous unjust and liable to be set aside. Thereby, prayed to reject the suit. Further, argues that this Court is empowered to hear the petition since order is not appellable as enumerated under order X Rule III CPC.7. The foremost point to be decided is whether the plaint averments disclosed the urgency to take the case without complying the pre-institution 11 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023mediation procedure as contemplated under Section 12 A of the Commercial court Act. 8. It is settled proposition that the trial Court is empowered to rely the averments of the plaint whether it denotes any urgency to take a case on file. Further, Section 12 A of Commercial court Act contemplates that pre institution mediation is mandatory and the same was reiterated by the Apex Court in the case of Patil Automation Private Limited and others Vs. Rakheja Engineers Private Limited reported in 2022 10 SCC. The learned counsel for the respondent submits that the defendant attempted to deviate the terms of the lease agreements so it put hardships on the plaintiff since he paid more than 4.5 crores of rupees. Therefore, the case was taken on file immediately. Thuse there was a urgencey pleaded by the plaintiff is accepted accordingly the case was taken on file. 9. On seeing the averment to reject the plaint it is settled proposition that plaint averments to be taken into consideration. As discussed above, in respect of terms of lease there was deviation among the parties there was exchange of e E- mail from the year 2021, the alleged amount paid by the respondent/plaintiff also on various dates from 2020 on various occasions. Further, on seeing the termination notice issued by the petitioner dated 12 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 202308.11.2022, in which, the petitioner/defendant stated that they were forced to do interior works themselves also known to the respondent/plaintiff and they did the said work spending their own amount of two crores. On September 2021 the same was informed to the respondent only 1.25 crores was remitted by him. Further notice averments reveals that there was inordinate delay on the side of the respondent/plaintiff without taking possession of the property for interior work. So notice averments reveals that respondent cause inordinate delay due to which the petitioner forced to do the interior works themselves which is prior to September 2021. Further, the plaint document clearly denotes that there was exchange of Mail from 2021 onwards therefore dispute was not suddenly arosed between the parties and it was pending for more than 1 1/2 year. Even as per the terms the respondent/plaintiff agreed to pay near about 4 crores for the alleged work done by the petitioner already they were in terms of settling the issue therefore the Trial Court should have referred the matter for pre institution mediation as required under Section 12 A of Commercial Court Act as there is no urgency to take the case on file. As discussed above, before deviation in terms of agreement already there was a exchange of notice between the parties which prime facie shows that already interior works was completed 13 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023by the petitioner so it clearly reveals that it is a case of pre institution mediation therefore the reason assigned by the Trial Court is illegal, unjust liable to be set aside. Furthermore, the petition filed by the petitioner to reject the plaint but without complying the Section 12 A of Commercial Court, the Court taken the case on file as such is erroneous one. Accordingly, the plaint is ordered to be rejected. If the pre institution mediation is fails the plaintiff is entitled to approach the Court for his remedy. Accordingly, this petition is allowed. No Costs. Consequentially, connected miscellaneous petitions are closed. 24.06.2024pblT.V.THAMILSELVI,J.Pbl14 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023CRP. No.3168 of 2023and CMP No. 19582 of 202324.06.202415

CRP. No.3168 of 2023For Petitioner : Mr.R.Srinivas, Senior counselFor respondent : Mr.Dhanaram Ramachandranfor D.R. Law Chambers ORDERThis petition has been filed to set aside the order dated 28.07.2023 passed in IA No.4 of 2023 in COS No.139 of 2023 on the file of the Principal District Judge Kancheepuram District at Chengalpattu2. The petitioner herein is the defendant in C.O.S NO. 139 of 2023 on the file of Principal District Court, Kancheepuram district, Chengalpatu filed by the respondent herein for the relief of declaration and permanent injunction. In the said suit after receipt of the notice the petitioner herein/defendant preferred an I.A NO. 4 of 2023 in C.O.S No. 139 of 2023 to reject the suit on the ground that respondent/plaintiff not complied with the mandate of Section 12 A of the Commercial courts Act, 2015 by instituting pre suit mediation. The said interim application was contested by the respondent/plaintiff by filing the counter objection and on hearing both sides the Trial Court dismissed the application by holding that the respondent/plaintiff prime facie established that there is urgency in approaching the court without exhausting pre institution mediation and court 2 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023also satisfied with the pleadings. Accordingly, dismissed the said application filed by the defendant. Challenging the same the defendant/petitioner filed this petition. 3. The learned counsel for the petitioner submits that the order passed by the Trial Court is unjust and arbitrary on the following grounds.i. The Lower Court also failed to appreciate that the respondent/plaintiff bas explicitly defied its direction to take steps for mediation by not calling the petitioner/defendant for mediation, which clearly establishes that the urgent relief claimed by the respondent/plaintiff was only for the sake of filing the suit by circumventing pre-suit mediation process and that they actually do not wam redressal by way of mediation.ii. The Lower Court has given an erroneous finding that given the nature of the suit. pre suit mediation that would go on for 3 months or more would frustrate the remedy available to the plaintiff despite being brought to its notice that the respondents/plaintiffs had whiled away 4 months in trying to getting the suit listed before the Hon'ble High Court, which has no jurisdiction, which time period could have otherwise been successfully utilized in the mediation of dispute.3 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023iii. The Lower Court failed to follow the dictum laid by the Hon'ble Supreme Cat of India in Patil Automation Pvt Ltd vs Raheja Engineers wherein it held than Section 12A of the Commercial Courts Act 2015, which mandates pre- institution mediation, is compulsory and suits which are filed violating the mandate of Section 12A must be rejected under Order VII Rule 11, in the face of apparent omission of urgent relief in the plaint iv. The Lower Court failed to appreciate that the interim injunction sought for in the interim application 'to restrain the defendant interalia from deviating from the terms of the contract dated 04.12.2019 along with the Minutes of meeting dated 07.12.2021 cannot be in any way perceived as an urgent relief as the nature of the 'interim relief is the main relief in disguise sought for in the plaint.v. The Lower Court has erred in holding that the plaintiff's action in approaching the High Court and the Lower Court on various occasions proves the plaintiff's need to redress plaint. the dispute and thereby mis-directed itself in dismissing the rejection of plaint.4 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 20234. Further to support his contention the petitioner relied the judgement of Court in the case of Patil Automation Private Limited and others Vs. Rakheja Engineers Private Limited reported in 2022 10 SCC94. Mediation must be perceived as a new mechanism of access to justice. We have already highlighted its benefits. 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. Section 12A elevates the settlement under the Act and the Rules to an award within the meaning of Section 30(4) of the Arbitration Act, giving it meaningful enforceability.The period spent in mediation is excluded for the purpose of limitation. The Act confers power to order costs based on conduct of the parties.5. By way of reply, the learned counsel for the respondent submits that the petitioner herein is the owner of the suit property measuring an extent about one acre plot in kancheepuram District and represented that they are going to construct the shopping mall under the name and style of ''Vijay Radha Multiplex Mall" ( in short referred as ''Mall''). Further, offered that they will construct five screens Multiplex Cinema property in the said 5 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023Mall and entered into lease agreement with him. Since the respondent is engaged in the business of film production in respect of the distribution of cinema films under the name and style of Miraj Cinemas. Accordingly, on 04.12.2019, entered into a lease deed in respect of muliplex cinema commercial complex as per the terms after construction of muliplex cinema theatre post completion of scope of the work of the petitioner, the multiplex property is handed over to the plaintiff for carrying out the fit out therein i.e. seats, sound, projectors, screens, it equipment, cafe equipment, acoustics , carpets etc and all this fit out work is generally carried out within 180 days from the hand over of the multiplex theatre provided that obligations is cast on the defendant to obtain the cinema operating license because accepting license in necessary of the terms between the parties recorded under the term sheet as per the terms this respondent agreed to pay five crores to the petitioner as interest free refundable security deposit the plaintiff bail out the defendant from financial difficulties and despite the fact that majority of the payments were not due to the defendant, remitted a sum of Rs. 4.5 crores to the defendant on different occasions. As per the terms, the petitioner agreed to hand over the property to the respondent after completing their scope of work along with the copy of valid completing and occupancy certificate on 6 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023or before 31.01.2020. However, the parties were caught in the inevitable grip of Covid - 19 pandemic. Thereafter, meeting was held between the plaintiff and the defendant's representative on 07.12.2021 and minutes of the meeting, inter alia agreed that plaintiff shall take possession of the demised premises between 15.01.2022 to 31.01.2022 for carrying out fit outs therein. On the basis of the mutual discussion terms were recorded in minutes of the meeting dated 07.12.2021. Subsequently, again the country was lockdown due to second wave of covid - 19 and as a result the plaintiff was not in a position to take up the possession of the multiple property between 15.01.2022 to 31.01.2022 as agreed under the minutes of meeting dated 07.12.2021. So, he send a mail dated 17.01.2022 wherein he stated that due to aforesaid position was not bale to take handover of the demised premises within the time line. Thereafter, another meeting was held on 08.02.2022 at Mumbai. Subsequently, after evaluation the respondent issued letter of acceptance on 25.02.2022 entered into a work contract with the defendant for execution of civil interior works for the value of 4,62,17,465/- and the same was accepted by the petitioner. Thereafter, payment of Rs. 1,25,00,000/- was paid towards work undertaken by the defendant/petitioner but the petitioner issued fresh demand towards lease 7 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023rent due to increase in material cost for that respondent raised some valid objection so that misunderstanding arosed. Subsequently, when the respondent attempted to carry out inspection of the demised premiss he was not been permitted for the reason best known to the petitioner . In fact, as per lease deed dated 04.02.2019 for 18 years said premises was given lease to him, any unapproved materials are used it would affect the terms. So, the respondent raised objection about the act of the petitioners instalments insisted the compromise. Thereafter, the petitioner demanded higher amount than agreed which would not accepted by the respondent as it against the terms of the leased agreement. All of sudden the petitioner terminated the lease deed unilaterally letter dated 08.11.2022. Having spent several crores of rupees the petitioner attempted to operate the theatre. Hence, the plaintiff filed the suit with an interim application to appoint advocate commissioner but the plaint was returned as present before the appropriate Court. Hence, the plaintiff filed the suit before the present Court and the same was taken on file. The plaint averments disclosed about the urgency of the plaintiff to approach the Court not to invoke pre institution mediation as required under Section 12 A of Commercial court, Act. On considering all the documents the Trial Court concluded that the that there was a emergency to take a case 8 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023on file. Accordingly, the case was taken on file. Subsequently, the application filed by the defendant to reject the plaint was rightly dismissed by the trial Court which needs no interference. Further, he relied the judgment of the Court reported in 2021 SCC 5220 in the case of Ashok Kumar Puri and Another Vs. S.Suncon Realtors Private Lts and Another: 9. The above observations of the Division Bench are fully applicable in the facts and circumstances of the present case. In the present case also, if it were not a commercial matter, the remedy of the petitioner against the impugned order would be to file a revision petition under Section 115 of the Code of Civil Procedure, 1908 (CPC). However, the said remedy has been barred under Section 8 of the Commercial Courts Act, 2015 in respect of commercial matters. Therefore, the scope of interference by this Court in exercise of jurisdiction under Article 227 of the Constitution of India is extremely narrow and limited only in respect of orders that are patently lacking inherent jurisdiction. This is not a case where the impugned order was passed by the Commercial Court without inherent jurisdiction.10. In the present case, the Commercial Court has exercised its jurisdiction and allowed the application for condonation of delay filed on behalf of the respondents. Even though there may be some merit in the contentions raised on behalf of the petitioners with regard to the non-est filing, that cannot be a ground for this Court to exercise jurisdiction under Article 227 of the Constitution of India and interfere with the decision of the Commercial Court. This would completely frustrate the objective behind the Commercial Courts Act, that commercial matters should be decided expeditiously and parties may not challenge interlocutory orders passed in the proceedings, except those which are specifically appealable.9 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 20236. On hearing both sides, the facts reveals that the petitioner is the owner of the demised premise, terms entered with lease agreement with the respondent which is engaged in the business of Movie exhibition centre with motive to providing best quality cinema and entertainment in the name and style of Mirage Cinemas. Accordingly, after construction of the mall the multiplex is to be handed over to the respondent for carrying out fit out material works to that effect they entered into an lease agreement on 04.12.2019 it is undisputed fact. The contention of the respondent is that due to covid - 19 the respondent was put into financial crisis so he was not able to do the interior work by taking possession of the property from the petitioner and the same was expressed to them and subsequently meeting was held terms were modified thereafter he spent near about 4.50 crores of rupees on various occasions. In spite of that the petitioner attempted to own the theatre with another parties by ignoring the terms of the lease agreement and also terminated the lease agreement unilaterally. Hence, the necessity arose for the plaintiff to approach the Court to get immediate relief though the suit was filed before this Court and thereafter same was returned and presented before the Commercial Court case was taken on file by 10 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023considering urgency of the plaintiff. After receipt of notice the defendant/petitioner filed the application to reject the plaint on the ground that the mandatory requirement for pre institution mediation was not complied by the plaintiff as required under Section 12 A of Commercial Court. Without exhausting such relief taken the case on file as such is erroneous one. Accordingly, he prayed to reject the plaint by filing the interim application wherein the Trial Court held that on seeing the plaint averments urgency established by the plaintiff therefore waiving off the Section 12 A of Commercial Court Act for pre institution mediation as such suit is maintainable and dismissed the same. By relying the ratio laid down in above referred cases the learned Counsel for the petitioner submits that pre institution mediation is mandatory one as contemplated under Section 12 A of Commercial Court Act but the Trial Judge ignoring the said mandatory provision taken the case on file as such is erroneous unjust and liable to be set aside. Thereby, prayed to reject the suit. Further, argues that this Court is empowered to hear the petition since order is not appellable as enumerated under order X Rule III CPC.7. The foremost point to be decided is whether the plaint averments disclosed the urgency to take the case without complying the pre-institution 11 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023mediation procedure as contemplated under Section 12 A of the Commercial court Act. 8. It is settled proposition that the trial Court is empowered to rely the averments of the plaint whether it denotes any urgency to take a case on file. Further, Section 12 A of Commercial court Act contemplates that pre institution mediation is mandatory and the same was reiterated by the Apex Court in the case of Patil Automation Private Limited and others Vs. Rakheja Engineers Private Limited reported in 2022 10 SCC. The learned counsel for the respondent submits that the defendant attempted to deviate the terms of the lease agreements so it put hardships on the plaintiff since he paid more than 4.5 crores of rupees. Therefore, the case was taken on file immediately. Thuse there was a urgencey pleaded by the plaintiff is accepted accordingly the case was taken on file. 9. On seeing the averment to reject the plaint it is settled proposition that plaint averments to be taken into consideration. As discussed above, in respect of terms of lease there was deviation among the parties there was exchange of e E- mail from the year 2021, the alleged amount paid by the respondent/plaintiff also on various dates from 2020 on various occasions. Further, on seeing the termination notice issued by the petitioner dated 12 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 202308.11.2022, in which, the petitioner/defendant stated that they were forced to do interior works themselves also known to the respondent/plaintiff and they did the said work spending their own amount of two crores. On September 2021 the same was informed to the respondent only 1.25 crores was remitted by him. Further notice averments reveals that there was inordinate delay on the side of the respondent/plaintiff without taking possession of the property for interior work. So notice averments reveals that respondent cause inordinate delay due to which the petitioner forced to do the interior works themselves which is prior to September 2021. Further, the plaint document clearly denotes that there was exchange of Mail from 2021 onwards therefore dispute was not suddenly arosed between the parties and it was pending for more than 1 1/2 year. Even as per the terms the respondent/plaintiff agreed to pay near about 4 crores for the alleged work done by the petitioner already they were in terms of settling the issue therefore the Trial Court should have referred the matter for pre institution mediation as required under Section 12 A of Commercial Court Act as there is no urgency to take the case on file. As discussed above, before deviation in terms of agreement already there was a exchange of notice between the parties which prime facie shows that already interior works was completed 13 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023by the petitioner so it clearly reveals that it is a case of pre institution mediation therefore the reason assigned by the Trial Court is illegal, unjust liable to be set aside. Furthermore, the petition filed by the petitioner to reject the plaint but without complying the Section 12 A of Commercial Court, the Court taken the case on file as such is erroneous one. Accordingly, the plaint is ordered to be rejected. If the pre institution mediation is fails the plaintiff is entitled to approach the Court for his remedy. Accordingly, this petition is allowed. No Costs. Consequentially, connected miscellaneous petitions are closed. 24.06.2024pblT.V.THAMILSELVI,J.Pbl14 https://www.mhc.tn.gov.in/judis CRP. No.3168 of 2023CRP. No.3168 of 2023and CMP No. 19582 of 202324.06.202415