As per case facts, High Point Supply Company LLC, an exclusive distributor, sued Agati Healthcare Pvt. Ltd. for breaching an Exclusive Distribution Agreement by supplying products to a third party ...
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COMFA/15/2026
High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
COMMERCIAL FIRST APPEAL NO. 15 OF 2026
High Point Supply Company LLC }
(through Mr. Gary Thomas, CEO/Owner) }
286 Meadow View Parkway, }
Erie, CO 80516 (USA) }… Appellant
V/s.
Agati Healthcare Private Limited }
having its head office at: }
Shivshankar Tower, }
Shop-2, Plot-23, 24 & 46 to 50 Sector -1, }
Sanpada, Navi Mumbai – 400705, }
Maharashtra, India }… Respondent
__________________________________________________________________
Mr. Simil Purohit, Senior Counsel a/w Mr. Ameya Gokhale, Ms. Kriti Kalyani,
Mr. Chintan Gandhi, Mr. Abhishek Mookherjee i/b Shardul Amarchand
Mangaldas & Co. for Appellant.
Mr. Shanay Shah a/w Mr. Vivek Sharma a/w Mr. A. A. Kapadia i/b Sujit Lahoti
and Associates for Respondent.
_________________________________________________________________
CORAM : R.I. CHAGLA AND
FARHAN P. DUBASH, JJ.
RESERVED ON :9
th
JUNE 2026
PRONOUNCED ON :5
th
AUGUST 2026
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Judgment dated 5
th
August 2026
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High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
_________________________________________________________________
JUDGMENT (Per Farhan P. Dubash, J.):
1. The Commercial First Appeal challenges an order dated 9
th
December
2025 (hereinafter referred to as “impugned order”) passed by the Trial
Court allowing the application taken out by the Respondent / original
Defendant under Order VII Rule 11(d) of the Code of Civil Procedure,
1908 (hereinafter referred to as “Code”). By the impugned order, the
plaint filed by the Appellant / original Plaintiff came to be rejected on the
ground of non-compliance with the provisions of Section 12-A (1) of the
Commercial Courts Act, 2015, namely, pre-institutional mediation.
2. Before considering the rival submissions, it would be appropriate to
briefly set out the facts, to the extent necessary. The same are as under:
a) The Appellant is a US-based delivery company that is stated to
collaborate with small to medium-sized businesses across the world
and provides them with a market base in the United States of
America (hereinafter referred to as “USA”). The Respondent is an
Indian company, stated to be engaged in the business of collecting,
processing and manufacturing Colostrum powder (hereinafter
referred to as “product”), which is the powder made out of the first
milk extracted from a cow after it has given birth to a calf.
b) Pursuant to email communication exchanged between the parties,
on 26
th
June 2023, they entered into an Exclusive Distribution
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High Point Supply Company LLC vs.
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Agreement (hereinafter referred to as
“the EDA”) in respect of the
product, whereunder the Appellant was appointed as its exclusive
distributor in the North American market, for a three-year term
effective until June 2026. The parties agreed that their relationship
under the EDA would be governed by the laws of the State of
Colorado, USA.
c) The EDA carved out an ‘Exclusivity Exception’ clause permitting
the Respondent to continue supplying the product to one of its
existing customer, namely, ‘Pantheryx’, with whom the Respondent
was stated to have been doing business since many years. However,
parties agreed that in the event of a change of control at Pantheryx,
its successor or any new owner / acquirer would not be entitled to
continue purchasing the product directly from the Respondent and
would have to purchase the product through the Appellant. The
relevant portion/clause of the EDA reads thus:
“a) Exclusivity Exception: Company has indicated an
existing customer relationship exists with Pantheryx. As
such, under this Scope provision, Company is granted an
exception to continue working directly with Pantheryx so
long as they continue to purchase directly from
Company under their current agreement.
1. If Pantheryx fails to substantially comply with the
terms of it's current supply agreement with Company for
12 consecutive months or fails to order product for 3
consecutive months, the contract terminates and
Pantheryx must purchase from Distributor.
2. The Parties further agree that in the event there is
a change of control (de�ned as more than 50% change
in ownership or voting control) at Pantheryx, Compa ny
would not provide consent to transfer the existing
agreement. As such, the successor to Pantheryx or a ny
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High Point Supply Company LLC vs.
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new owner/ acquirer would be required to purchase
Products directly from Distributor and would no longer
be considered an Exception to this Scope provision 1.3.”
d) Pursuant to the execution of the EDA, the Appellant is stated to
have placed a purchase order dated 24
th
August 2023 for 4,200
kilograms of the 70:30 variant of the product. However, according
to the Appellant, the Respondent failed to supply the product within
the stipulated delivery period of November-December 2023. The
Appellant further contends that the Respondent also thereafter failed
to supply a modified 60:20 variant of the product.
e) The Appellant contends that during the subsistence of the EDA, it
discovered, through one of its customers, that the Respondent was
contemporaneously supplying the product to a company, namely,
‘Glanbia Nutritionals’ (hereinafter referred to as “Glanbia”), despite
having contractually granted exclusivity in distribution of the
product to the Appellant, thereby breaching the said Exclusivity
Exception contained in the EDA.
f) Thereafter, on 1
st
October 2024, in order to safeguard its contractual
rights, the Appellant is stated to have addressed a
communication/letter dated 1
st
October 2024, intimating Glanbia
about the provisions of the EDA that was executed with the
Respondent. It is stated that as per the information available in the
public domain and as per the knowledge of the Appellant, Glanbia
had acquired Pantheryx in or around November 2023.
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High Point Supply Company LLC vs.
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g) In the meanwhile, the Respondent addressed a legal notice dated
23
rd
October 2024, informing the Appellant that the EDA would
stand terminated with effect from 23
rd
November 2024, interalia, on
the ground that the Appellant’s communication/letter dated 1
st
October 2024 to Glanbia had damaged the Respondent’s reputation
and caused it loss of business. Thus, the Appellant was stated to
have breached the EDA on account of failure on its part in
discharging its obligations thereunder.
h) The Appellant responded denying the allegations and instead
contending that the Respondent had failed to fulfill its obligations
under the EDA.
i) Since the EDA was governed by the laws of the State of Colorado,
the Appellant is stated to have sought an affidavit from an expert on
Colorado law. Accordingly, an affidavit dated 20
th
January 2025
came to be executed by Mr. Chad Williams, Esq., who opined that
the Appellant was not only entitled to seek specific performance of
the EDA but also entitled to seek damages for its contractual
breaches from the Respondent.
j) As a result, the local advocates of the Appellant took some time in
the preparation and finalisation of the plaint and the accompanying
interim application seeking urgent interim/ad-interim reliefs, the
drafts of which were stated to have been forwarded to the Appellant,
for their approval sometime on/about 6
th
– 7
th
February 2025. The
drafts were thereafter revised upon receipt of the Respondent’s
letter dated 14
th
February 2025.
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k) In these circumstances, the Appellant contends that the plaint and
interim application came to be executed and attested by a notary
public in the USA on/about 1
st
March 2025, after which, they were
dispatched to its local advocates in Mumbai, India, through the
United States Postal Service on 8
th
March 2025.
l) Ultimately, the plaint and interim application came to be e-filed
on/about 13
th
April 2025, after which, the present suit was registered
on 18
th
April 2025. The plaint, interalia, seeks specific performance
of the EDA, together with a declaration that its termination is non
est,
void ab initio and bad in law, and accordingly, for it to be
quashed and set aside. In addition, the Appellant also seeks damages
and compensation in respect of the losses that are stated to have
been suffered by them on account of the Respondent’s breach of the
EDA. The Appellant also seeks an order of injunction restraining
the Respondent from breaching the EDA and from entering into any
arrangement, directly or indirectly, with any third party for the
supply of the product in North America, together with a further
order directing the Respondent to effect all sales and distribution of
the product in the North American region only through it.
m) Sometime on/about 2
nd
July 2025, the Respondent preferred an
application under Order VII Rule 11(d) of the Code, seeking
rejection of the plaint. The said interim application was vehemently
opposed by the Appellant, notwithstanding which, the Trial Court
passed the impugned order on 9
th
December 2025.
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High Point Supply Company LLC vs.
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n) By the impugned order, the Trial Court allowed the interim
application and held that the provisions of Section 12-A of the
Commercial Courts Act, 2015 (“the CC Act”) were mandatory and
that the Appellant had failed to establish any genuine urgency
justifying exemption from pre-institution mediation. In addition, the
Trial Court also held that the pleadings regarding ‘urgency’ were
vague and unsupported by particulars and that the dispute
essentially concerned quantifiable commercial losses, capable of
monetary compensation. The Trial Court further held that the
prayers for interim injunction and preservation of exclusivity were
merely a ‘camouflage’ to bypass the statutory mediation
requirement prescribed under Section 12-A of the CC Act.
Consequently, the plaint filed by the Appellant was rejected.
o) Aggrieved thereby, the Appellant has preferred the present
Commercial First Appeal.
SUBMISSIONS OF THE APPELLANT
3. Mr. Simil Purohit, learned Senior Counsel who appears on behalf of the
Appellant, submits that the impugned order is contrary to the provisions
of Section 12-A of the CC Act and proceeds on an erroneous assumption
that pre-institution mediation is an absolute pre-condition to the
institution of every commercial suit. He contends that the Trial Court
failed to consider whether the present suit contemplated urgent
interim/ad-interim reliefs so as to fall within the statutory exception
contained in the said section.
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4. He accordingly argues that in the present case, the Trial Court’s decision
to non-suit the Appellant is based on an erroneous and hyper-technical
interpretation of the provisions of Section 12-A of the CC Act and further
based on a selective reading of the plaint. He contends that the interim
application was also filed by the Appellant and despite clear pleadings of
urgency, the Trial Court has erroneously proceeded to reject the plaint. He
submits that such finding amounts to a manifest error of law and a
miscarriage of justice. In doing so, Mr. Purohit contends that the Trial
Court has wrongly confined itself to only paragraph nos. 78 and 79 of the
plaint and paragraph no. 17 of the interim application instead of reading
the plaint/pleadings as a whole.
5. Mr. Purohit invites our attention to the reliefs sought in the present suit
and interim application and contends that such reliefs are ex-facie of an
urgent nature and could not have awaited the completion of pre-institution
mediation. He adds that one such relief seeks a disclosure on the part of
the Respondent, of the volume and value of all sales effected directly or
indirectly by it, in the North American market, which reliefs, he asserts, is
absolutely necessary in order to determine the full extent of the breaches
committed by it and necessary to be brought on record for ascertaining the
quantum of loss and damages suffered by the Appellant.
6. Mr. Purohit adds that the impugned order proceeds on an erroneous
premise that the mere possibility of monetary compensation negates the
need for urgent interim relief. Such a finding, he contends, is not only
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High Point Supply Company LLC vs.
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contrary to the reliefs sought in the present suit but the settled position of
law in cases involving breach of negative covenants and exclusivity
clauses. On the contrary, he submits that the test is whether the plaint, on
its own averments, discloses a need for urgent interim protection. To this,
he adds that the possibility of damages, by itself, does not extinguish the
need for an injunction since the pleaded injury includes loss of market
share, goodwill, customer relationships and competitive position, all of
which, are difficult to quantify in monetary terms.
7. Mr. Purohit submits that the delay, if at all any, between the termination
notice and the institution of the present suit has been adequately
explained. In support, he points out that the Appellant is a foreign entity,
whose promoter is a citizen of the USA, and since the EDA is governed
by the laws of Colorado, the Appellant engaged an expert on Colorado
laws who has also filed an affidavit in that regard, which he contends is
necessary to assist the Trial Court in determining the dispute raised in the
present suit. He therefore submits that the Trial Court has erroneously
construed such intervening period as being inconsistent with the urgency
pleaded in the plaint.
8. He contends that in the present case, the urgency was not only pleaded in
the plaint but was also demonstrated by his clients’ conduct, both prior to
and after the filing of the present suit. In support, he points out that the
fact that the Trial Court had issued notice and directed listing of the
interim application during the court vacation, by itself, at least prima facie
demonstrates that there was some urgency in the matter.
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9. Mr. Purohit submits that the Trial Court has fundamentally misconstrued
the mandate of Section 12-A of the CC Act and points out that though the
Hon’ble Supreme Court in Patil Automation (P) Ltd. v. Rakheja Engineers
(P) Ltd.
1
held its provisions to be mandatory, the impugned order fails to
appreciate that the same decision also preserves the statutory exception
for suits contemplating urgent interim/ad-interim reliefs.
10.Mr. Purohit further submits that the Trial Court has also erroneously gone
into the merits of the Appellant’s contentions and claims and passed the
impugned order on the basis thereof, which clearly lies beyond its scope.
He argues that the refusal of ad-interim / interim reliefs cannot, by itself,
justify rejection of the plaint. Instead, he contends, the correct test is
whether, on a holistic reading of the plaint and the cause of action from
the plaintiff’s standpoint, urgent interim reliefs were contemplated. In this
regard, he relies upon the decision of this Court in Buildcon Sethia
Construction v. Dipti Coop. Housing Society Ltd.
2
11.Mr. Purohit submits that the plaint and the Interim Application, read as a
whole, disclose a continuing breach of the EDA by the Respondent,
including, interalia, the supply of the product to Glanbia during the
subsistence of the EDA, the subsequent termination notice addressed by
the Respondent and its subsequent correspondence, the last of which
being letter dated 14
th
February 2025, and its continued refusal to abide by
the EDA, constitute a continuing cause of action to the Appellant
requiring immediate judicial intervention. He submits that the Trial Court
1 (2022) 10 SCC 1
2 2025 SCC Online Bom 4958
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High Point Supply Company LLC vs.
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failed to appreciate this crucial aspect whilst passing the impugned order.
In support, he places reliance upon the decision of the Supreme Court in
Novenco Building and Industry A/S v. Xero Energy Engineering
Solutions Pvt. Ltd.
3
12.Instead, Mr. Purohit submits that the Trial Court has erroneously
considered the decision in Patil Automation (supra) and has also failed to
consider subsequent decisions of the Hon’ble Supreme Court on the scope
and interpretation of Section 12-A of the CC Act, in Dhanbad Fuels (P)
Ltd. v. Union of India
4
and Novenco Building and Industry A/S (supra)
which require examination of the pleadings and supporting documents for
determining whether urgent interim reliefs are genuinely contemplated by
also considering the immediacy of the peril, likelihood of irreparable
harm, risk of loss of rights, and whether delay would render the final
relief, ineffective. He argues that the phrase
“contemplates urgent interim
relief”
contained in the said section requires a purposive and liberal
construction, particularly when the present suit seeks to restrain a
continuing breach of contractual obligations, preservation of commercial
rights pending adjudication, and prevention of acts that would otherwise
render the ultimate judgment ineffective.
13.On the aforesaid basis, Mr. Purohit submits that the impugned order is
unsustainable and liable to be interfered with and set aside by this Court.
3 (2026) 4 SCC 815
4 (2025) 9 SCC 424
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SUBMISSIONS OF THE RESPONDENT
14.Per contra, Mr. Shanay Shah, learned Counsel who appears on behalf of
the Respondent, supports the impugned order and submits that Section
12-A of the CC Act engrafts a mandatory pre-condition to the institution
of every commercial suit, save and except those which genuinely
contemplate urgent interim reliefs. He submits that the present suit does
not fall within and/or satisfy the said statutory exception and, as a result,
the Trial Court rightly rejected the plaint. In support, he too relies upon
the decisions of the Hon’ble Supreme Court in Patil Automation (supra)
and Dhanbad (supra) and also the decision of this Court in Gundecha
Estates Pvt. Ltd. v. IIFL Finance Ltd. & Ors.
5
15.Mr. Shah submits that the Appellant has failed to establish any genuine
urgency warranting exemption from pre-institution mediation. According
to him, the Appellant remained inactive for several months after receipt of
the termination notice dated 23
rd
October 2024 and instituted the present
suit only on 13
th
April 2025 even though the plaint is affirmed on 21
st
February 2025. He therefore submits that such conduct is wholly
inconsistent with the case of urgent reliefs claimed by the Appellant. In
support, reliance is placed upon the decisions of this Court in Image
Developer v. Kamla Landmarc Real Estate Holding (P) Ltd.
6
and IIFL
Home Finance Ltd. v. Paramvir Developers Pvt. Ltd.
7
.
5Order dated 17
th
July 2025 passed in Interim Application (L) No.16800 Of 2025 in Commercial Suit (L)
No.8617 Of 2025
62025 SCC Online Bom 3284
72026 SCC Online Bom 3858
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16.He submits that the explanation offered by the Appellant seeking to justify
the delay in instituting the present suit, namely, time consumed in
obtaining expert legal opinion, preparation of pleadings, execution,
attestation by notary public and dispatch of executed pleadings/documents
from the USA, cannot, by itself, create urgency where none otherwise
existed. He therefore contends that the urgent interim reliefs sought by the
Appellant in the plaint are nothing but a disguise to get over the bar
contemplated under Section 12-A of the CC Act. He therefore submits
that the delay on the part of the Appellant in filing the present suit, clearly
reflects its conduct and the Trial Court has correctly taken that into
consideration whilst passing the impugned order.
17.Mr. Shah also submits that the averments in the plaint and interim
application contain mere general assertions regarding urgency, irreparable
injury, balance of convenience and prima facie case, without disclosing
any specific facts demonstrating why the dispute could not first, be
referred to pre-institution mediation. According to him, mere use of
expressions such as
“urgent interim relief” or “irreparable harm” by the
Appellant in the plaint is insufficient to attract the statutory exception
under Section 12-A of the CC Act. In this regard, he places reliance upon
the decision of the Hon’ble Supreme Court in
Yamini Manohar v. T.K.D.
Keerthi
8
.
18.He submits that the dispute, in substance, arises out of an alleged breach
of a commercial supply and distribution agreement, the consequences of
which, are primarily financial in nature and capable of quantification. In
8(2024) 5 SCC 815
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fact, he points out that in the plaint, the Appellant has also claimed refund
of the amounts paid by it towards the purchase order with interest thereon,
reimbursement of laboratory testing and shipping expenses, damages for
loss of business opportunities, loss of sales margins and reputational
harm, thereby, clearly demonstrating that the alleged injury is
compensable in monetary terms. Therefore, he submits that no case was
made out for urgent interim reliefs in the plaint.
19.He further submits that the prayers seeking specific performance,
injunction restraining further breach of the EDA, and disclosure of sales
are merely ancillary to the principal monetary reliefs / claims made in the
plaint and have been so made solely to create an appearance of urgency
and to bypass the mandatory requirement of pre-institution mediation.
According to Mr. Shah, the Court is required to examine the substance of
the plaint rather than the form of the reliefs claimed therein whilst
determining whether the suit genuinely contemplates urgent interim
reliefs or merely seeks to circumvent the statutory requirement of pre-
institution mediation.
20.He argues that the Trial Court correctly adopted a holistic reading of the
plaint and rightly concluded that no immediate or irreparable prejudice
has been disclosed. Mr. Shah contends that the Trial Court was justified in
holding that the pleadings relating to urgency were vague, unsupported by
material particulars, and insufficient to invoke the exception contained in
Section 12-A of the CC Act. In support, he relies upon the decisions of the
Hon’ble Supreme Court in Patil Automation (supra), Dhanbad (supra) and
of this Court in Gundecha Estates Pvt. Ltd. (supra) to contend that
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compliance with the said Section 12-A is mandatory and a plaint
instituted without exhausting pre-institution mediation is liable to be
rejected under Order VII Rule 11(d) of the Code unless the suit clearly
falls within the narrow statutory exception relating to urgent interim
reliefs contained therein.
21.Accordingly, Mr. Shah urges that the impugned order suffers no
infirmities warranting interference and resultantly, seeks dismissal of the
present Commercial First Appeal.
ANALYSIS, REASONS & FINDINGS
22.We have heard the learned Counsel appearing for the parties at
considerable length and have perused the pleadings, the impugned order
and the material placed on record. The controversy in the present
Commercial First Appeal lies within a narrow compass. The principal
question which falls for determination is whether the Trial Court was
justified in rejecting the plaint under Order VII Rule 11(d) of the Code on
the ground of non-compliance with Section 12-A(1) of the CC Act.
Before examining the rival submissions, it would be apposite to reproduce
Section 12-A(1), which reads thus:
“12-A. 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
plainti� 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.”
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23.The enquiry before this Court is, therefore, a limited one. At this stage,
this Court is not concerned with the merits of the Appellant's claim, nor
with the question whether the Appellant is ultimately entitled to the
interim reliefs sought in the suit. Equally, the Court is not required to
determine whether the interim application deserves to be allowed. The
only issue which falls for consideration is whether, upon a meaningful
and holistic reading of the plaint together with the documents annexed
thereto, the present suit can be said to
“contemplate urgent interim relief”
within the meaning of Section 12-A(1) of the CC Act, so as to attract the
statutory exception to the requirement of pre-institution mediation.
24.It is now well settled that Section 12-A(1) engrafts a mandatory pre-
condition to the institution of a commercial suit. In Patil Automation
(supra), the Supreme Court authoritatively held that, save and except in
cases falling within the statutory exception relating to urgent interim
relief, compliance with Section 12-A is mandatory and that a plaint
instituted in breach thereof is liable to be rejected under Order VII Rule
11 of the Code. At the same time, the Supreme Court expressly recognised
that where a suit genuinely contemplates urgent interim relief, the
statutory bar does not operate and the suit is maintainable notwithstanding
the absence of pre-institution mediation.
25.Thereafter, the Supreme Court, in Yamini Manohar (supra), Dhanbad
(supra) and Novenco (supra), and this Court in Buildcon (supra),
Gundecha Estates (supra), Paramvir Developers (supra) and Image
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Developer (supra), have progressively elucidated the scope and ambit of
Section 12-A(1) of the CC Act. These decisions do not lay down
divergent principles. On the contrary, they consistently reaffirm the
mandatory character of Section 12-A(1) while explaining the contours of
the statutory exception relating to suits contemplating urgent interim relief
and the nature of the enquiry which the Commercial Court is required to
undertake while considering an objection founded upon non-compliance
with the said provision. The cumulative legal position emerging from the
aforesaid authorities may, for convenience, be summarized thus:
(i)Section 12-A(1) engrafts a mandatory condition precedent to
the institution of a commercial suit. A commercial suit which
does not contemplate urgent interim relief cannot be instituted
unless the plaintiff first exhausts the remedy of pre-institution
mediation. The provision is couched in negative language and
embodies a legislative mandate intended to encourage
consensual resolution of commercial disputes, reduce
avoidable litigation and improve the efficiency of commercial
adjudication. The requirement is therefore mandatory and
non-compliance ordinarily entails rejection of the plaint,
under Order VII Rule 11 of the Code.
(ii)The only statutory exception is where the suit genuinely
contemplates urgent interim relief. Being an exception to the
general rule of mandatory mediation, it is required to receive
a strict construction and cannot be interpreted so broadly as to
defeat the legislative mandate.
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(iii)The question whether a suit contemplates urgent interim relief
is not determined solely by the plaintiff's drafting or
subjective assertion. The Commercial Court is the ultimate
arbiter of whether the statutory exception is attracted.
Although urgency must be examined from the standpoint of
the plaintiff, the Court must independently scrutinize whether
the plea of urgency is genuine or merely a device to evade the
statutory mandate.
(iv)The enquiry under Section 12-A(1) is a limited threshold
jurisdictional examination / enquiry and not an adjudication
on merits. The Court is not required to determine whether the
plaintiff is ultimately entitled to interim relief or whether the
application for interim relief deserves to be allowed. The
enquiry is confined to determining whether the suit genuinely
contemplated urgent interim relief when it was instituted.
(v)The exercise must be undertaken objectively upon a holistic
consideration of the plaint and the surrounding
circumstances. In deciding whether the statutory exception
applies, the Court may examine the plaint as a whole, the
documents annexed thereto, the nature of the dispute, the
cause of action, the reliefs claimed and the attendant facts and
circumstances existing on the date of institution of the suit.
No single circumstance is conclusive.
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(vi)The existence of urgency must be judged with reference to
the date of institution of the suit. Subsequent events neither
create nor extinguish the statutory exception. The relevant
enquiry is whether, at the time the suit was instituted, there
existed a bona fide need for immediate judicial intervention
which could not reasonably await completion of the
mediation process.
(vii)The burden lies upon the plaintiff to establish a bona fide
factual foundation for claiming exemption. Mere formal
pleadings, bald assertions of urgency or a mechanical prayer
for interim relief are insufficient. The plaint itself must
disclose specific facts demonstrating that immediate judicial
intervention was indispensable and that the plaintiff could not
reasonably have awaited the statutory period prescribed for
mediation. Mere formal pleadings or bald assertions of
urgency do not suffice.
(viii)Equally, the Court must remain vigilant against attempts to
camouflage ordinary commercial disputes as urgent matters.
A colourable or cleverly drafted prayer for interim relief
cannot be used as a means to circumvent the statutory
mandate of Section 12-A(1). The Court is entitled to reject
the plea where the asserted urgency is illusory, contrived or
unsupported by the pleaded facts and accompanying material.
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Judgment dated 5
th
August 2026
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High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
(ix)The plaintiff's conduct constitutes a relevant indicator of the
genuineness of the plea of urgency. In assessing bona fides,
the Court may consider, interalia, the chronology of events,
the interval between the accrual of the cause of action and
institution of the suit, the promptness with which interim
relief was sought after institution, prior knowledge of the
alleged infringement or threatened action, and whether the
plaintiff's conduct is consistent with the asserted need for
immediate judicial intervention. None of these factors is
decisive by itself, but all are relevant in evaluating whether
the plea of urgency is genuine.
(x)A continuing cause of action does not, by itself, dispense with
compliance with Section 12-A(1). Nevertheless, where the
alleged wrong itself is continuing and immediate judicial
intervention is necessary to prevent further invasion of the
plaintiff's rights, the continuing nature of the wrong
constitutes a relevant circumstance while evaluating the
existence of urgency.
(xi)The refusal of interim relief after institution does not
retrospectively invalidate the institution of the suit. Where the
Court is satisfied that the suit genuinely contemplated urgent
interim relief when instituted, the subsequent refusal of ad-
interim / interim relief on merits, does not retrospectively
render the suit defective for want of compliance with Section
12-A(1). Conversely, where the plea of urgency was never
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Judgment dated 5
th
August 2026
COMFA/15/2026
High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
genuine, the plaintiff cannot avoid the statutory consequence
merely because an application for interim relief accompanied
the plaint.
(xii)Lastly, the mandatory obligation under Section 12-A(1)
presupposes the existence of an effective statutory
mechanism for mediation. Where compliance was impossible
because such mechanism was unavailable, the law does not
compel performance of an impossibility. That principle,
however, does not dilute the mandatory character of Section
12-A(1) once the statutory mechanism has become
operational.
26.The question, therefore, is not whether the Appellant has, in fact,
established a prima facie case for grant of an injunction or whether the
interim application ultimately deserves to be allowed. Nor is the enquiry
directed towards determining whether damages would ultimately
constitute an adequate remedy. The sole question which fell for
consideration before the Trial Court was whether, upon a meaningful and
holistic reading of the plaint, the documents annexed thereto and the
attendant facts and circumstances existing on the date of institution of the
suit, the Appellant had disclosed a bona fide factual foundation
demonstrating that the suit genuinely contemplated urgent interim relief
within the meaning of Section 12-A(1) of the CC Act. It is the correctness
of the Trial Court's approach to this limited jurisdictional enquiry that
falls for consideration in the present Appeal.
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Judgment dated 5
th
August 2026
COMFA/15/2026
High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
27.Applying the aforesaid principles to the facts of the present case, we are
unable to concur with the conclusion reached by the Trial Court that the
Appellant sought to invoke the exception contained in Section 12-A(1) of
the CC Act merely by incorporating a routine prayer for interim relief. A
meaningful reading of the plaint, as a whole, discloses that the dispute
arises out of the EDA under which the Appellant claims an exclusive right
to distribute the Respondent's products in the North American market
until June 2026. The plaint further proceeds on the basis that,
notwithstanding the subsistence of the said Agreement, the Respondent
continued to supply the product directly to Glanbia in breach of the
exclusivity covenant, purported to terminate the Agreement and thereafter
persisted in denying its contractual obligations. Whether these allegations
are ultimately established is a matter for trial. However, for the limited
purpose of an enquiry under Section 12-A(1), they undoubtedly constitute
the factual foundation upon which the Appellant asserts the necessity for
immediate protective relief. The Trial Court, in our respectful view, erred
in confining its consideration principally to paragraphs 78 and 79 of the
plaint and paragraph 17 of the interim application, instead of evaluating
the pleadings and the documents annexed thereto in their entirety, as the
law mandates.
28.The approach adopted by the Trial Court also, in our view, travels beyond
the limited enquiry contemplated under Section 12-A(1). Instead of
confining itself to determining whether the suit genuinely contemplated
urgent interim relief from the Appellant's standpoint, the Trial Court
proceeded to examine whether the Appellant would ultimately be entitled
to an injunction and whether damages would constitute an adequate
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Judgment dated 5
th
August 2026
COMFA/15/2026
High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
remedy. Such considerations are germane while adjudicating the interim
application on its own merits. They do not arise while considering an
application under Order VII Rule 11(d) of the Code founded upon alleged
non-compliance with Section 12-A(1) of the CC Act. The enquiry at that
stage is jurisdictional and not adjudicatory. The Court is required to
ascertain only whether the plaint discloses a bona fide case for invoking
the statutory exception and not whether such interim relief ultimately
deserves to be granted.
29.Equally, we are unable to agree with the view of the Trial Court that the
presence of monetary claims in the plaint necessarily negatives the
existence of urgency. The Appellant has undoubtedly sought damages for
the losses alleged to have been suffered on account of the Respondent's
breaches. However, the substantive reliefs claimed are not confined to
compensation alone. The plaint also seeks specific performance of the
EDA, a declaration that the purported termination thereof is illegal, a
perpetual injunction restraining further breaches of the exclusivity
covenant, and disclosure of the sales allegedly effected in violation of the
Agreement. The fact that a plaintiff seeks consequential monetary reliefs,
in addition to equitable and injunctive reliefs, does not, by itself, justify
the conclusion that the suit is one involving only compensable monetary
claims or that it does not genuinely contemplate urgent interim relief
within the meaning of Section 12-A(1) of the CC Act.
30.We also find substance in the Appellant's contention that the Trial Court
failed to appreciate the nature of the contractual right asserted in the
plaint. The exclusivity covenant constitutes the very substratum of the
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Judgment dated 5
th
August 2026
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High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
commercial arrangement between the parties. According to the Appellant,
every sale effected by the Respondent directly in the North American
market, otherwise than through the Appellant, constitutes a continuing
infraction of that covenant and progressively erodes the exclusivity for
which the parties had expressly contracted. These averments, if assumed
to be correct for the limited purpose of the present enquiry, disclose an
allegation of continuing invasion of the Appellant's contractual rights and
not merely a completed breach giving rise to a claim for damages.
Whether the Appellant ultimately succeeds in establishing such
allegations is a matter for trial. At this stage, however, they cannot be
discarded as incapable of furnishing a bona fide foundation for the plea
that the suit genuinely contemplates urgent interim relief.
31.Considerable emphasis was placed by Mr. Shah on the interval between
the issuance of the termination notice and the institution of the present
suit. Undoubtedly, the chronology of events constitutes a relevant
circumstance while examining the genuineness of the plea of urgency.
However, as noticed earlier, it is only one of several factors which the
Court is required to consider and cannot, by itself, be regarded as
conclusive. The Appellant has placed on record an explanation that,
having regard to the governing law of the Agreement, it was required to
obtain an expert opinion on the applicable law of the State of Colorado,
prepare the pleadings on that basis, have the plaint and interim application
executed and notarized in the USA, and thereafter transmit the same to
India for institution before the Commercial Court. Whether such
explanation ultimately merits acceptance is not the issue presently before
this Court. The relevant question is whether those circumstances
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Judgment dated 5
th
August 2026
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High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
necessarily render the plea of urgency illusory. In our considered view,
they do not. At the highest, they constitute matters bearing upon the
weight to be attached to the Appellant's explanation and cannot, by
themselves, justify rejection of the plaint under Order VII Rule 11(d) of
the Code.
32.Equally, we are unable to agree with the Trial Court that the prayers for
interim relief constitute a mere camouflage to circumvent the requirement
of pre-institution mediation. A finding of such nature necessarily
postulates that the plea of urgency is demonstrably artificial, colourable or
unsupported by the factual narrative contained in the plaint. In the present
case, the plaint proceeds on the basis that the Respondent continued to act
in breach of the exclusivity covenant, that the Agreement was wrongfully
terminated, that the Respondent persisted in denying its contractual
obligations, and that every continuing sale in the North American market
outside the contractual arrangement further impaired the Appellant's
contractual rights. These averments may ultimately be accepted or
rejected upon trial. However, at the present stage, they cannot be
characterized as inherently sham or devoid of factual foundation so as to
warrant the conclusion that the Appellant invoked the statutory exception
merely as a device to bypass Section 12-A(1) of the CC Act.
33.We are also of the view that the Trial Court attached undue significance to
the form of the pleadings relating to urgency instead of examining their
substance. The fact that the averments regarding urgency are crystallized
in the concluding paragraphs of the plaint and the interim application does
not imply that the factual foundation for such urgency is confined to those
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Judgment dated 5
th
August 2026
COMFA/15/2026
High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
paragraphs alone. The plaint is required to be read as a whole. The
narrative preceding those averments sets out the contractual relationship
between the parties, the alleged breaches of the exclusivity covenant, the
acquisition of Pantheryx by Glanbia, the subsequent correspondence
exchanged between the parties, the Respondent's termination notice and
its continued refusal to perform the Agreement. It is this factual matrix
which constitutes the foundation upon which the Appellant predicates its
plea for immediate interlocutory protection. The Trial Court failed to
undertake the holistic examination of the plaint mandated by the settled
jurisprudence under Section 12-A(1) of the CC Act.
34.In our opinion, the impugned order also discloses a conflation of two
distinct enquiries. The first enquiry, contemplated by Section 12-A(1), is
jurisdictional in nature and is confined to determining whether the present
suit genuinely contemplates urgent interim relief. The second concerns the
grant or refusal of interim relief on merits, which necessarily involves
consideration of the existence of a prima facie case, balance of
convenience, irreparable injury and the adequacy of damages. The Trial
Court, while considering the application under Order VII Rule 11(d) of
the Code, entered upon matters falling within the latter enquiry and
thereby effectively prejudged issues which properly arise for
consideration while deciding the interim application. Such an approach is
inconsistent with the limited scope of examination envisaged by Section
12-A(1) of the CC Act and the law laid down by the Supreme Court and
this Court.
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Judgment dated 5
th
August 2026
COMFA/15/2026
High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
35.Having regard to the cumulative effect of the pleadings, the documents
annexed thereto and the attendant circumstances existing on the date of
institution of the suit, we are satisfied that the plaint discloses a bona fide
factual foundation for the Appellant's assertion that immediate judicial
intervention was necessary to preserve the contractual rights claimed
under the EDA pending adjudication of the suit. Whether those rights
ultimately deserve protection by way of interim or final relief is an
altogether different matter. At this stage, it is sufficient to hold that the
present suit cannot be characterized as one in which the plea of urgency is
either illusory or merely colourable. Consequently, the statutory exception
contained in Section 12-A(1) of the CC Act stood sufficiently invoked and
the Trial Court was not justified in rejecting the plaint at the threshold.
36.We are, therefore, of the considered opinion that although the Trial Court
correctly appreciated the mandatory nature of Section 12-A(1) of the CC
Act, it fell into error in applying the settled principles governing the
statutory exception relating to urgent interim relief. The impugned order
proceeds upon an unduly restrictive reading of the plaint, accords
determinative weight to considerations germane to the merits of the
interim application, and thereby travels beyond the limited jurisdiction
exercisable under Order VII Rule 11(d) of the Code. The order rejecting
the plaint, therefore, cannot be sustained and deserves to be set aside. The
question whether the Appellant is entitled to any interim relief shall
necessarily fall for independent consideration by the Commercial Court
on its own merits, uninfluenced by any observations contained either in
the impugned order or in the present judgment.
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Judgment dated 5
th
August 2026
COMFA/15/2026
High Point Supply Company LLC vs.
Agati Healthcare Pvt. Ltd.
37.The impugned order, therefore, suffers from a manifest error in the
exercise of jurisdiction under Order VII Rule 11(d) of the Code and is
liable to be quashed and set aside. Consequently, in the present case, non-
compliance with Section 12-A(1) of the CC Act is justified, and the plaint
cannot be rejected at the threshold on the ground of such non-compliance.
Accordingly, the following order is passed:
:: ORDER ::
(i) The Commercial First Appeal is allowed.
(ii) The impugned order dated 9
th
December 2025 passed by the
Trial Court rejecting the plaint under Order VII Rule 11(d) of
the Code is set aside.
(iii) Commercial Suit No. 2 of 2025 is restored to the file of the
Trial Court and shall proceed from the stage immediately
preceding the passing of the impugned order.
(iv) The Trial Court shall proceed to consider and decide the
Appellant's Interim Application on its own merits and in
accordance with law, uninfluenced by any observations
contained either in the impugned order or in the present
judgment.
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Judgment dated 5
th
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High Point Supply Company LLC vs.
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(v) All contentions of the parties on the merits of the suit and the
Interim Application are expressly kept open.
(vi) The Commercial First Appeal is accordingly disposed of in the
aforesaid terms. There shall be no order as to costs.
( FARHAN P. DUBASH, J. ) ( R.I. CHAGLA, J. )
Shubham Gadhavepatil
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Judgment dated 5
th
August 2026
JYOTI
PRAKASH
PAWAR
Digitally signed
by JYOTI
PRAKASH
PAWAR
Date: 2026.08.05
12:47:35 +0530
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