Novenco Building and Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd. & Anr

The Supreme Court, in an appeal filed by Novenco Building and Industry A/S (“Novenco”) against the judgements passed by the Division Bench and Single Judge of the Himachal Pradesh High Court in favour of Xero Energy Engineering Solutions Pvt. Ltd. & Anr. (“Xero Energy”), held that in cases involving continuous infringement of intellectual property rights, the mandatory requirement of pre-litigation mediation can be waived when urgent relief is necessary to prevent public deception.

The dispute arose from a civil suit filed by Novenco before the HP High Court seeking permanent injunction to restrain Xero Energy from infringing its patent and design for its industrial fans. Along with the suit, Novenco also filed an application seeking exemption from the mandatory requirement of pre-institution mediation under Section 12A of the Commercial Courts Act, 2015 (“Act”).

The Single Judge of the High Court rejected the plaint by holding that Novenco had delayed approaching the court, and therefore it could not justify the requirement of an urgent interim relief to circumvent the mandatory requirement under Section 12A of the Act. The Division Bench upheld this decision, observing that mere continuous infringement of IP rights alone did not constitute sufficient urgency to dispense with pre-litigation mediation.

On appeal, the Supreme Court set aside the judgment of the Division Bench. It held that mere delay in initiating proceedings does not legitimize an act of infringement, and cannot deprive the intellectual proprietor from seeking injunctive relief against an infringer. The court further opined that in intellectual property infringement cases, urgency is inherent due to the ongoing injury and the potential deception of the public, and therefore, infringement cannot be allowed to persist. The Court further emphasized that insisting on pre-institution mediation in cases of continuing infringement would effectively leave a plaintiff remediless, as it would allow the infringer to continue benefiting from unlawful conduct under the guise of procedural compliance, an outcome which is contrary to the very object of the provision. Accordingly, the Supreme Court restored the civil suit and directed the suit to be proceeded on merits.

[Novenco Building and Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd. & Anr (SLP No. 2753/2025)]

 Read the judgement copy here.