ONKAR INFOTECH PVT. LTD. vs DELHI INTERNATIONAL AIRPORT LTD. & ORS.

$~22
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 07.08.2024

+ CS(COMM) 660/2024
ONKAR INFOTECH PVT. LTD. …..Plaintiff
Through: Mr.P.S. Patwalia, Sr. Adv. and Mr.Dayan Krishnan, Sr. Adv. with Mr.Karan Luthra, Mr.Sanjeevi Sheshadri, Mr.Yogesh Malik and Mr.Naman Gowda, Advs.

versus

DELHI INTERNATIONAL AIRPORT LTD. & ORS.
…..Defendants
Through: Mr.A.M.Singhvi, Sr. Adv. and Mr.Amit Sibal, Sr. Adv. along with Mr.Tejasvi Chaudhary, Mr.Amitabh Chaturvedi, Mr.Parminder Singh, Mr.Rishabh, Mr.Manu Krishnan, Mr.Ankit Monga, and Mrs.Rimjhim Suhani, Advs.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA

NAVIN CHAWLA, J. (ORAL)
I.A. 35754/2024 & I.A. 35755/2024 (Exemptions)
1. Allowed, subject to all just exceptions.
I.A. 35753/2024
2. The learned senior counsel for the plaintiff submits that the court fee has been deposited and only the receipt is required to be filed. Let the same be filed within a week from today.
3. The application is disposed of.
I.A. 35751/2024 & I.A. 35752/2024
4. I.A. 35751/2024 has been filed by the plaintiff praying for the following reliefs:-
“(a) Pass an Order of temporary injunction restraining the Defendants and its employees, associates, agents, representatives and assignees, jointly and severally, hindering or restricting the Plaintiff’s access to the common main gate and common passage of Property No. D-17, Pushpanjali Farms, Bijwasan, New Delhi – 110037 in any manner whatsoever and interfering with the ingress, egress of the Plaintiff and use and enjoyment of the independent out house building block on 1.3625 acres forming party of Property No. D-17, Pushpanjali Farms, Bijwasan, New Delhi – 110037;
(b) Pass an Order of temporary injunction restraining the Defendants and its employees, associates, agents, representatives and assignees, jointly and severally, from selling, alienating, transferring, encumbering or creating any third-party rights in any manner whatsoever in respect of Property No. D-17, Pushpanjali Farms, Bijwasan, New Delhi -110037.”

5. I.A. 35752/2024 has been filed by the plaintiff praying for an exemption from undergoing the pre-institution mediation as provided under Section 12A of the Commercial Courts Act, 2015 (hereinafter referred to as ‘CC Act’).
6. Issue notice.
7. Notice is accepted by Mr.Tejasvi Chaudhary, Advocate on behalf of the defendants.
8. As these applications shall raise common issues, they are being considered by this common order.
9. The learned senior counsel for the plaintiff submits that the defendants are lessee, under an unregistered Lease Deed dated 01.04.2020, of an area admeasuring 2.45 acres, consisting of one main dwelling building block having built up area of 30,000 sq. ft. with lawn, of property bearing no. D-17, Pushpanjali Farms, Bijwasan, New Delhi-110037 (hereinafter referred to as the ‘leased premises’). The leased premises are a part of a larger block of land admeasuring 3.8125 acres, which also consists of other constructed property (collectively referred to as the ‘suit land’). The Suit land also consists of common passage and the outhouse building and land admeasuring about 1.3625 acres (hereinafter referred to as the ‘unleased portion’), which has not been leased to the defendants.
10. The plaintiff asserts that the plaintiff has purchased the suit land from its erstwhile owner, vide a Registered Sale Deed dated 20.05.2024. It is further asserted that even at the time of registration of the said Sale Deed, the defendants sought to raise a mala fide objection on the same by asserting that they have some rights/prior agreement with respect to the suit land. On the Sub-Registrar of documents asking the defendants to produce any court order restraining the registration of the sale deed, the said objection was withdrawn by the defendants, vide their Letter dated 22.05.2024. It is only thereafter that the sale deed was registered in favour of the plaintiff.
11. It is further asserted that in terms of Clause 12 of the Lease Deed dated 01.04.2020 executed by the erstwhile owner in favour of the defendants, the lessor (now the plaintiff) is to have ‘complete unrestricted right to use and own the common passage and the outhouse building and building and land admeasuring about 1.3625 acres not leased out by the Lessor to the Lessee in any manner and Lessee shall not have any right to exclusive use of the common passage ad/or any right to use/approach the outhouse and the land admeasuring 1.3625 acres not leased to the Lessee.’.
12. The learned senior counsel for the plaintiff, drawing the reference of this Court to the averments made in paragraph nos. 33 to 37 of I.A. 35751/2024, submits that the defendants have, in violation of the above term of the Lease Deed, restricted the access of the plaintiff to the unleased portion of the suit land, thereby giving rise to the urgency of filing of the present suit and seeking interim relief from this Court, as has been reproduced hereinabove.
13. He submits that the defendants were also claiming a right in the property while opposing the registration of the sale deed in favour of the plaintiff. The plaintiff has also sought for an injunction restraining the defendants from creating any third-party interest in the suit land.
14. The learned senior counsel for the plaintiff submits that, therefore, in terms of Section 12A of the CC Act, the plaintiff is entitled to an exemption from resorting to pre-institution mediation. He further prays for the grant of the interim relief as prayed for in I.A. 35751/2024.
15. On the other hand, the learned senior counsels appearing for the defendants submit that the present suit is liable to be dismissed as the plaintiff has not initiated pre-institution mediation, as is mandatorily required under Section 12A of the CC Act. Placing reliance on the judgments of the Supreme Court in Patil Automation (P) Ltd. v. Rakheja Engineers (2022) 10 SCC 1; and Yamini Manohar v. T.K.D. Keerthi (2024) 5 SCC 815; and Orders of this Court in M/s. Sabsons Agencies Private Limited v. M/s. Harihar Polymers & Anr.(order dated 01.03.2024 passed in I.A. No. 803/2024 in CS (Comm) 899/2023); and judgment of this Court in Dr. Reddys Laboratories Limited v. Smart Laboratories Pvt. Ltd., 2023 SCC OnLine Del 7276, they submit that the mandatory requirement of initiating a pre-institution mediation before filing a commercial suit cannot be negated by clever drafting and by a camouflage created by making false averments not supported by any document.
16. They submit that as far as the right of the plaintiff to use the unleased portion of the suit land is concerned, the parties had entered into a ‘Access Protocol’ on 27.05.2024, whereunder the plaintiff was to inform the authorised representative of the defendants of the person coming to visit the unleased portion, along with the identity proof of such person. On receipt of such information, such person was to be granted access by the defendants. They submit that this protocol has worked and has been duly followed by the plaintiff. They submit that the plaintiff has intentionally concealed these facts from this Court.
17. They further submit that though the plaintiff in paragraph no.36 of I.A. 35751/2024 makes reference to instances of 19.07.2024, 22.07.2024, and 01.08.2024, as evidence of hindrance caused by the defendants to the access of the plaintiff to the unleased portion, there was no reference of these instances in the earlier suit filed by the plaintiff, that is, CS(OS) 618/2024, which was filed as a non-commercial suit and was withdrawn by the plaintiff to file the present suit. They submit that even otherwise, there are no documents or complaints in writing, to the defendants or any other authority, of any hindrance being caused to the plaintiff to access the unleased portion. They submit that the defendants have not denied the access to the unleased portion to the plaintiff but are merely regulating the same for ensuring the safety of the Chairman of the defendants, who is residing in the leased premises.
18. They submit that the prayer for restraining the defendants from creating any third party interest, has also been only to somehow escape from initiating pre-institution mediation.
19. I have considered the submissions made by the learned counsels for the parties.
20. Section 12A(1) of the CC Act reads as under:
“12A. Pre-Institution Mediation and Settlement—(1) A suit, which does not contemplate any urgent interim relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation in accordance with such manner and procedure as may be prescribed by rules made by the Central Government.”

21. Explaining the mandatory nature of the above provision, the Supreme Court in Patil Automation (P) Ltd. (supra) held as under:
“99. We may sum-up our reasoning as follows:
99.1. The Act did not originally contain Section 12-A. It is by amendment in the year 2018 that Section 12-A was inserted. The Statement of Objects and Reasons are explicit that Section 12-A was contemplated as compulsory. The object of the Act and the Amending Act of 2018, unerringly point to at least partly foisting compulsory mediation on a plaintiff who does not contemplate urgent interim relief. The provision has been contemplated only with reference to plaintiffs who do not contemplate urgent interim relief. The legislature has taken care to expressly exclude the period undergone during mediation for reckoning limitation under the Limitation Act, 1963. The object is clear.

99.2. It is an undeniable reality that courts in India are reeling under an extraordinary docket explosion. Mediation, as an alternative dispute mechanism, has been identified as a workable solution in commercial matters. In other words, the cases under the Act lend themselves to be resolved through mediation. Nobody has an absolute right to file a civil suit. A civil suit can be barred absolutely or the bar may operate unless certain conditions are fulfilled. Cases in point, which amply illustrate this principle, are Section 80 CPC and Section 69 of the Partnership Act.

99.3. The language used in Section 12-A, which includes the word “shall”, certainly, goes a long way to assist the Court to hold that the provision is mandatory. The entire procedure for carrying out the mediation, has been spelt out in the Rules. The parties are free to engage counsel during mediation. The expenses, as far as the fee payable to the mediator, is concerned, is limited to a one-time fee, which appears to be reasonable, particularly, having regard to the fact that it is to be shared equally. A trained mediator can work wonders.

99.4. 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 12-A, a mandatory interpretation, would result in defeating the object and intention of Parliament. The fact that the mediation can become a non-starter, cannot be a reason to hold the provision not mandatory. Apparently, the value judgment of the lawgiver 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 12-A 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.”

22. In Yamini Manohar (supra), the Supreme Court re-emphasised the mandatory nature of the above provision, while also clarifying that the facts and circumstances of each case have to be considered holistically from the standpoint of the plaintiff. It was further held that the plaintiff, however, does not have the absolute choice and right to paralyse Section 12A of the CC Act by making a prayer for urgent interim relief, camouflaging or creating a facade to bypass the statutory mandate of the above Section. The role of the Commercial Courts is to check and ensure that the legislative mandate and object behind the enactment of Section 12A of the CC Act is not defeated.
23. In the present case, the Lease Deed dated 01.04.2020, whereunder the defendants are in possession of the lease premises, itself contains the following recital and condition:
“WHEREAS:
A. The Lessor is the absolute owner and in possession of the farm house bearing o.D-17, Pushpanjali Farms, Bijwasan New Delhi admeasuring approximately 3.8125 acres having one main dwelling building block having built up area of approx. 30 000 sq. ft. with lawn on approximately 2.45 acres of land and other independent out house building block on 1.3625 acres of land with common passage and main gate for both the building blocks (hereinafter referred to as the “Farm House”), and has represented that the Farm House is developed as per applicable laws including building byelaws, master plan applicable to the location and other statutory regulations;
B. The Lessee being in need of a suitable accommodation for the use and occupation of its Chairman, as Guest House and for office purpose, has approached the Lessor for grant of lease of the main building block with built up area of 30,000 sq.ft. approximately along
with land admeasuring approximately 2.45 acres of the Farm House(hereinafter referred to as the “Demised Premises”), subject to certain terms and conditions and the Lessor has agreed to grant to the Lessee on lease the Demised Premises as detailed below:
(I) Demised Premises I as specified in Schedule I of this Lease Deed in relation to DELHI INTERNATIONAL AIRPORT LTD
(II) Demised Premises II as specified in Schedule I of this Lease Deed in relation to GMR AIRPORT LTD.;
(III) Demised Premises III as specified in Schedule I of this Lease Deed in relation to GMR SOLAR ENERGY PVT.LTD.

Xxxx

12 ACCESS TO PREMISES
That the Lessee shall permit the Lessor or their authorized representative with or without workmen to enter into the Demised Premises at all reasonable times during normal working hours for the purpose of inspection or repair of the Demised Premises with prior intimation of 48 (forty eight) hours to Lessee. However, the Lessor shall continue to have complete unrestricted right to use and own the common passage and the outhouse building and building and land admeasuring about 1.3625 acres not leased out by the Lessor to the Lessee in any manner and Lessee shall not have any right to exclusive use of the common passage ad/or any right to use/approach the outhouse and the land admeasuring 1.3625 acres not leased to the Lessee.
That the common passage providing access the independent out house and land not leased out to the Lessee and retained by the Lessor for its own use for rearing cattle and other agriculture uses are marked on the plan annexed and marked as Schedule I to this Deed will be used by both Lessor and their workmen. The responsibility and liability of repair and maintenance of the common passage will be of the Lessee and no cost or reimbursement of repairs and maintenance of the common passage will be borne or shared by the Lessor.”

24. A reading of the above Clauses would clearly show that what is leased to the defendants is only the building and the land admeasuring 2.45 acres. The lease itself recognises the unhindered unrestricted right of the lessor (now the plaintiff), including the unrestricted right to access, to the land and the building admeasuring 1.3625 acres, that is, the unleased portion. Even as per the own showing of the defendants (which has been denied by the plaintiff), a protocol was insisted upon the plaintiff wherein the plaintiff has to seek the prior permission/give prior intimation to the defendants to access the unleased portion of the suit land, which is contrary to the terms of the lease. Even otherwise, it is the claim of the plaintiff that its access to the unleased portion has been regulated/denied by the defendants. This would be a sufficient ground to seek urgent interim relief from the Court.
25. In addition to the above, the fact that the defendants sought to create a hindrance on the registration of the sale deed by the erstwhile owner in favour of the plaintiff, by asserting some right in the suit land, would also give a reasonable apprehension to the plaintiff that the defendants may, in order to defeat the rights of the plaintiff to seek eviction of the defendants from the lease premises, create a third-party interest. The apprehension of the plaintiff, therefore, cannot be said to be fanciful or only a camouflage to somehow bypass the mandate of Section 12A of the CC Act.
26. In view of the above, the plaintiff is granted exemption from initiating pre-institution mediation. I.A. 35752/2024 is allowed.
27. For the reasons stated hereinabove, I also find that the plaintiff has also been able to make out a good prima facie case in its favour. The balance of convenience is also in favour of the Plaintiff and against the Defendants. The Plaintiff is likely to suffer a grave irreparable injury in case an ad interim injunction in terms of the prayers made in I.A. 35751/2024 are not granted.
28. Accordingly, the defendants, till further orders, are restrained in terms of prayers (a) and (b) of I.A. 35751/2024.
29. Reply, if any, be filed within a period of four weeks. Rejoinder thereto, if any, be filed within a period of three weeks thereafter.
30. List on 23rd October, 2024 before the learned Joint Registrar (Judicial).
CS(COMM) 660/2024
31. Issue summons to the Defendants.
32. Summons are accepted by Mr.Tejasvi Chaudhary, Advocate on behalf of the defendants.
33. The Defendants may file the Written Statement(s) to the plaint within a period of 30 days from the date of receipt of summons. Along with the Written Statement(s), the Defendants shall also file the affidavit(s) of admission/denial of the documents of the Plaintiff, without which the Written Statement(s) shall not be taken on record.
34. Liberty is given to the Plaintiff to file the Replication within a period of 15 days of the receipt of the Written Statement(s). Along with the Replication, if any, filed by the Plaintiff, the affidavit(s) of admission/denial of documents of the defendant(s) shall be filed by the Plaintiff, without which the Replication(s) shall not be taken on record.
35. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
36. List on 23rd October, 2024 before the learned Joint Registrar (Judicial).
NAVIN CHAWLA, J
AUGUST 7, 2024/ns/AS
Click here to check corrigendum, if any

CS(COMM) 660/2024 Page 1 of 12