Urgent Interim Relief in IPR Suits: Decoding Section 12A of the Commercial Courts Act, 2015

In the evolving landscape of commercial litigation in India, Section 12A of the Commercial Courts Act, 2015, has emerged as a pivotal procedural checkpoint. It mandates pre-institution mediation for all commercial disputes, unless the suit “contemplates any urgent interim relief.” This provision, while aimed at reducing litigation and promoting amicable resolution, has been a topic of contest in the realm of Intellectual Property Rights (“IPR”) litigation, where urgency is often not just a strategic choice but a legal necessity to avoid public harm.

The exception of contemplation of urgent interim relief as provided under Section 12A (1) is crucial in IPR matters, where plaintiffs often seek immediate ad interim/ex parte ad interim injunction to prevent ongoing infringement, fearing irreparable harm to their rights and to the general public.

While the exception is widely accepted in IPR practice, at the same time, it also often attracts judicial scrutiny. Defendants increasingly challenge this side-stepping of pre-litigation mediation, arguing that courts are granting them without sufficient inquiry into whether the urgency is genuine or simply a strategic manoeuvre. This tension between procedural compliance and practical exigency continues to shape the evolving jurisprudence around Section 12A in IPR litigation.

The Supreme Court in Yamini Manohar v. T.K.D. Keerthi[1] laid down a critical framework for assessing urgency under Section 12A. It emphasized that courts must carefully scrutinize the plaint and supporting documents to determine whether the suit genuinely contemplates urgent interim relief. Importantly, the court cautioned against plaintiffs using interim injunction applications merely as a “camouflage” to bypass the mandatory mediation process, reinforcing the need for judicial application of mind before granting exemptions. The decision highlights the need for judicial discretion and scrutiny in determining whether the exemption is truly warranted.

Several High Courts have since interpreted this principle in the context of IPR suits, often leaning toward a presumption of urgency. In M.K. Food Products v. S.H. Food Products[2], a Division bench of the Telangana High Court held that in copyright infringement matters, urgency is inherently presumed, thereby necessitating exemption from pre-institution mediation. Similarly, in Reddy’s Laboratories Ltd. v. Smart Laboratories Pvt. Ltd.[3], the Delhi High Court ruled that trade mark infringement suits seeking injunctions do not require compliance with Section 12A, recognizing the immediate nature of relief sought in such cases. The Bombay High Court, in Chemco Plastic Industries Pvt. Ltd. v. Chemco Plast[4], went a step further by upholding the plaintiff’s right to seek urgent interim relief despite an eight-year gap between the issuance of a cease-and-desist notice and the filing of the suit. The court rejected the defendant’s plea under Order VII Rule 11 of the Code of Civil Procedure, 1908 (“CPC”), affirming that delay alone does not negate urgency if the infringement is ongoing.

In another decision of the Delhi High Court in Bolt Technology OU v. Ujoy Technology Private Limited & Anr.[5], the court held that if one party initiates a settlement proposal and the other party rejects it in response to a resolution letter, the requirement for pre-institution mediation under Section 12A can be deemed fulfilled. This interpretation, especially when read alongside Rule 3 of the Commercial Courts (Pre-Institution Mediation and Settlement) Rules, 2018, significantly eases the procedural rigidity associated with Section 12A.

The court also made an important observation regarding the nature of intellectual property rights, noting that such rights are not only critical to the parties involved but also carry broader public and consumer interest. Given this context, many IPR disputes naturally fall within the exemption carved out under Section 12A (1) for suits seeking urgent interim relief.

However, not all courts have taken a lenient view. In Novenco Building & Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd.[6], the Himachal Pradesh High Court dismissed the suit for non-compliance with Section 12A, citing a six-month delay and the absence of a clear justification for urgency. The Division Bench upheld this decision, signalling that courts may reject exemption requests where plaintiffs fail to demonstrate immediate and irreparable harm.

The Supreme Court’s recent ruling in the appeal against the Division Bench’s order Novenco[7] has now provided much-needed clarity. It held that “urgency lies in the continuing wrong, not in the passage of time,” thereby affirming that ongoing infringement itself constitutes sufficient urgency to bypass mediation. This judgment marks a significant turning point, reinforcing the principle that plaintiffs should not be denied immediate judicial intervention simply due to a delay in filing, provided the harm is continuous and subsisting.

For litigants, these developments carry practical implications. Plaintiffs must draft their pleadings with precision, clearly articulating the urgency while filing applications seeking urgent reliefs. They should document the nature and extent of harm to demonstrate why a delay in the relief would cause irreparable injury. While delay does not automatically disqualify urgency, unexplained gaps can weaken the case. Defendants, on the other hand, should closely examine the plaintiff’s urgency claims and, where appropriate, seek rejection of the plaint under Order VII Rule 11 CPC. They may also advocate for mediation, especially in cases where infringement is not ongoing or where dialogue could resolve the dispute. Courts must continue to strike a balance between procedural fairness and the need for swift relief, applying their discretion judiciously and refining the jurisprudence around what truly constitutes “urgent interim relief” in IPR contexts.

From an interesting angle of quia timet actions, preventive suits filed in anticipation of infringement have become increasingly relevant in the context of IPR litigation, especially when viewed through the lens of Section 12A. These actions allow plaintiffs to seek judicial relief before actual harm occurs, based on a credible and imminent threat to their rights. In IPR matters, this could involve restraining a competitor from launching a product or using a trade mark that closely resembles the plaintiff’s protected asset.

The challenge arises when such suits are weighed against the procedural requirement of pre-institution mediation under Section 12A, which is mandatory unless the suit contemplates urgent interim relief. Since a quia timet action is based on the threat of future infringement, it is often filed to prevent imminent and irreparable harm, which constitutes urgency. To bypass mediation, the plaintiff must demonstrate genuine urgency with facts, not just a standard prayer for an injunction. It is, ultimately, for the court to determine whether the specific circumstances of a quia timet action warrant dispensing with pre-institution mediation under Section 12A.

The Supreme Court’s Novenco judgment has clarified that urgency lies in the continuing wrong, not in the passage of time, thereby affirming that ongoing or imminent infringement qualifies as sufficient urgency to bypass mediation.

As the Supreme Court aptly observed, “insistence on pre-institution mediation while infringement is ongoing renders a plaintiff remediless.” This guiding principle should inform future adjudication, ensuring that the application of Section 12A remains both just and effective in protecting intellectual property rights without undermining the broader goals of the statute.

[1] 2024 5 SCC 815

[2] Civil Revision Petition No. 3690 of 2018

[3] 2024 (98) PTC 294 Del

[4] 2024 SCC OnLine Bom 1607

[5] 2022 SCC OnLine Del 2639

[6] 2024 SCC OnLine HP 5795

[7] (SLP No. 2753/2025)