T. V. KRISHNA MOORTHY Vs. KANAKADHARA FINANCE

JUDGEMENT

(1.) Challenging the order of dismissal passed by the learned Principal District Judge, Commercial Court, Namakkal/Principal District Court, Namakkal in I.A.No.14 of 2023 in C.O.S.No.21 of 2022 dtd. 30/8/2023, the present Civil Revision has been filed.

(2.) The fact of the case is that the first respondent/plaintiff had filed the suit in C.O.S.No.21 of 2022 before the Commercial Court/Principal District Court, Namakkal against the revision petitioners/defendants 1 to 4 and the respondents 2 and 3/defendants 5 & 6 for a direction to the defendants 1 to 4 to pay the suit claim of Rs.1,65,90,669.00 along with subsequent interest at the rate of 18% per annum till the date of realization and to create a charge on the suit B, C and D schedule properties till the suit claim is settled by the defendants 1 to 4 and to declare that the sale deed dtd. 24/3/2021 registered as Doc. No.1255/2021 executed by the 2nd defendant in favour of the 5th defendant is ab-initio void and illegal, and consequential permanent prohibitory injunction restraining the 5th defendant and his men from further alienating A schedule property till the realisation of the decree amount. In the said suit, the revision petitioners/defendants 1 to 4 had filed a petition to reject the plaint in I.A.No.14 of 2022 under Order VII Rule 11(d) of Civil Procedure Code, which was dismissed by the Trial Court on 30/8/2023. Aggrieved over the same, the present revision has been filed.

(3.) The learned counsel for the petitioners submitted that the suit was filed by the first respondent/plaintiff alleging that the first petitioner/1st defendant herein had approached the first respondent/plaintiff and sought for financial help for the business floated by the second and third petitioners in the name of the fourth petitioner, hence, the first respondent transferred the financial assistance directly in the second and fourth petitioner's bank account, for which, the petitioners 1 and 2/defendants 1 & 2 jointly executed promissory notes in favour of the first respondent/plaintiff. The plaintiff in the plaint stated that the 2nd respondent/5th defendant is one of the creditors of the revision petitioners and the property mentioned as suit schedule 'A' was transferred to the 5th defendant in March 2021 and hence, the plaintiff has filed the suit in C.O.S.No.21 of 2022, under Commercial Courts Act 2015, before the Commercial/Principal District Court, Namakkal. The Commercial Courts Act mandates for pre-litigation mediation and settlement under Sec. 12-A of the Act, but no such procedure was adopted by the first respondent/plaintiff before initiation of the suit. However the first respondent/plaintiff has failed to plea specifically in the plaint averments regarding urgent interim relief sought for in I.A.Nos.1 to 4 of 2022 and as to why the procedure contemplated under Sec. 12-A of the Act has to be waived. It is a statutory mandate cast upon the 1st respondent/plaintiff to have specifically pleaded in his plaint as to why he had directly approached the Court without approaching and exhausting the pre-litigation mediation and settlement. So, the plaint filed by the plaintiff without complying Sec. 12A of the Act, is liable to be rejected and hence, the petitioners herein have filed the petition under Order VII Rule 11(d) of CPC to reject the plaint as the plaint is barred by law. The Trial Court without considering the legal preposition, dismissed the rejection of plaint petition filed by the petitioners.