IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Arijit Banerjee

And

The Hon’ble Justice Rai Chattopadhyay

FMAT 176 of 2023

with

IA No. CAN 2 of 2025

IPJ Industrial Corporation

Vs.

M/s. Esskay Machinery Pvt. Ltd.

For the Appellant : Mr. Amitava Mukherjee

: Mr. Sandipan Banerjee

: Mr. U. Dutta

: Ms. A. Sureka

For the respondent : Mr. Suvadeep Sen

: Ms. Sucheta Das

Heard on : 08/05/2026

Judgment on : 24/06/2026

Rai Chattopadhyay, J. :-

1. Instant is an application No. CAN 2 of 2025 arising out of the appeal No.

FMAT 176 of 2023 connected with M.S. 1 of 2022 (cc) and with regard to

the judgment and order dated July 15, 2025, passed therein.

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2. The applicant/appellant/plaintiff has sought for grant of permission to

withdraw the plaint, stamp duty and all other interlocutory applications

filed by it before the Trial Court and to allow it to file the same afresh,

with same stamp duty.

3. To proceed further in this matter, it is necessary that crux of this Court‘s

order dated July 15, 2025, in FMAT No. 176 of 2023, clar ification

/modification of which has been sought for in the instant application, be

stated, as herein below:-

4. In the said appeal, the appellant/plaintiff/present applicant challenged

an order dated February 28, 2023, passed by the Commercial Court at

Rajarhat, in M.S.-1/2022 (cc). The same was a money suit instituted by

the present applicant, for recovery of price of goods sold and delivered to

the defendant therein.

5. The following facts have further been noted by the Division Bench: -

“2. The respondent took out an application for rejection of the

plaint under Order 7 Rule 11(d) of the Code of Civil Procedure

contending that the suit is barred by law inasmuch as the

requirement of pre-suit mediation under Section 12A of the

Commercial Courts Act, 2015 had not been complied with by the

plaintiff.

3. Learned Judge noted that although there was an application

which was filed by the plaintiff seeking dispensation of the

requirements under Section 12A of the Commercial Courts Act, in

the plaint there was no averment showing any degree of

urgency. Learned Judge held that for the purpose of deciding a

demurrer application, only the statements in the plaint are

relevant. Nothing else can be looked into. The statements in the

plaint do not justify institution of the suit by dispensing with the

requirement of pre-suit mediation under Section 12A of the 2015

Act. Accordingly, learned Judge, rejected the plaint.”

6. In Paragraph (7) of the said order dated July 15, 2025, the Court‘s

finding has been recorded that on a conjoint reading of Patil

Automation Private Limited [Patil Automation (P) Ltd. Vs. Rakheja

Engineers (P) Ltd. (2022 SCC Online SC 1028 )] and Laxmi Polytab

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Pvt. Limited [Laxmi Polytab Pvt. Limited Vs. Eden Realty Ventures

Pvt. Ltd. (2021 SCC OnLine Cal 1457)] , the applicant‘s plaint was

liable to be rejected for non-compliance with the provisions of Section-

12A of the Commercial Courts Act, 2015. The Court‘s further finding is

that the plaint did not demonstrate any urgency to justify permission

being granted to a party to file a suit without satisfying the requirement

of pre-litigation mediation under Section-12A of the 2015 Act. Also that,

no amount of pre-suit correspondence between the parties but only

institutional mediation as contemplated under Section 12A of the Act of

2015, would be sufficient and satisfactory compliance of the provisions

of the statute.

7. On these findings the Division Bench dismissed the appeal and upheld

the order of the Commercial Court, Rajarhat, which was impugned in the

appeal.

8. It is also necessary in this case to look into the order of the Trial Court

dated February 28, 2023, to find as to what was the final determination

of the Court, vide the same

9. There the Trial Court was adjudicating upon an application filed by the

defendant in the suit, under Order VII Rule 11 of the Civil Procedure

Code dated September 12, 2022. The defendant said that before filing of

the suit the plaintiff ought to have exhausted the precondition of filing

that suit, as enumerated under Section 12A of the Commercial Courts

Act, 2015. However, the plaintiff has failed to exhaust the remedy of pre-

institution mediation as mandatorily required under Section 12A of the

Act of 2015 prior to institution of the said suit. The defendant said that

in absence of such remedy being exhausted by the plaintiff the said suit

was barred by law and the plaint was to be rejected under provision of

Order VII Rule 11 (d) of the Civil Procedure Code.

10. After exhaustive discussion, the Trial Court has come to the finding that

―the plaintiff has not met the condition as mandated under Section 12A

of the Commercial Courts Act, 2015 and the only consequence for not

meeting the mandate entails in rejection of plaint.‖ Hence, the

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defendant‘s application for rejection of plaint under Order VII Rule 11 of

Civil Procedure Code was allowed.

11. As an effect of that order of the Trial Court dated February 28, 2023, the

applicant/plaintiff‘s plaint, filed before it stood rejected by the Court. The

Division Bench found no infirmity in the said order of the Trial Court

and therefore, dismissed the appeal. In effect, the status of the plaint

stood as, to have been rejected being in violation of the statutory

provision.

12. The cause of action of the present application arose since thereafter. It is

the contention of the applicant/appellant/plaintiff, that in the event of

rejection of its plaint, it has to be returned with the Court fees earlier

submitted at the time of filing of the suit.

13. For the applicant/appellant/plaintiff Mr. Amitava Mukherjee, learned

advocate has appeared whereas the opposite

party/respondent/defendant has been represented by Mr. Suvadeep

Sen, learned advocate; both of them have made submissions relying

upon the judgments of Patil Automation Pvt. Ltd. (supra) and Dr.

(Col.) Subhash Chandra Talwar Vs. T. Choithram And Sons dated

October 25, 2019 in Special Leave Appeal No. 18102/2013 . Patil

Automation Pvt. Ltd. (supra) is the decisive verdict of the Supreme

Court regarding the commercial suit being liable for rejection under

order 7 Rule 11(d), Civil Procedure Code due to breach of mandate under

Section 12A of the Commercial Courts Act, 2015; whereas the other

judgment of Dr. (Col.) Subhash Chandra Talwar (supra) has dealt with

the issue that upon return of plaint, the plaintiff‘s prayer for refund of

Court fees should not be disallowed as the Court‘s order of rejection was

under order 7, Rule 10 of the Civil Procedure Code, which in

consideration of the Court was not an order on merits of the suit. There,

the Court has further held that effect of an order of return of plaint is

that the same is to be filed in an appropriate Court. On these reasons,

the Supreme Court in Dr. (Col.) Subhash Chandra Talwar ’s case

(supra) has held that the petitioner was entitled to refund of Court fees

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so that he can fix the Court fee in the Court where he would like to file

the suit.

14. It is noted that the subsequent decision of the Supreme Court in Patil

Automation (supra) did not advert to or consider the earlier decision

rendered in Dr. (Col.) Subhash Chandra Talwar (supra) , wherein the

Supreme Court had specifically held that where a plaint is returned or

the proceeding fails on a technical ground without adjudication on

merits, the litigant should not be deprived of the benefit of refund or

return of Court fees for the purpose of reinstitution before the competent

forum.

15. The doctrine of per incuriam is a legal principal in common law systems

stating that a Court‘s decision is not a binding precedent if it was

rendered in ignorance of a relevant and binding precedent. Under the

doctrine of stare decisis (the principle of determining points in litigation

according to precedent), Courts are generally bound to follow prior

decisions. However, a judgment is considered per incuriam if the deciding

Court overlooked an authoritative, binding judgment that would have

directly impacted or changed the outcome of the case. The doctrine is

treated as a crucial exception to the rule of judicial precedent.

16. The principle is well elaborated by a Constitution Bench of Supreme

Court in Punjab Land Development and Reclamation Corporation

Ltd., Chandigarh Vs. Presiding Officer, Labour Court, Chandigarh

and Others reported in (1990) 3 SCC 682, in the following words: -

“40. We now deal with the question of per incuriam by reason of allegedly

not following the Constitution Bench decisions. The Latin expression per

incuriam means through inadvertence. A decision can be said generally to be

given per incuriam when this Court has acted in ignorance of a previous

decision of its own or when a High Court has acted in ignorance of a decision

of this Court. It cannot be doubted that Article 141 embodies, as a rule of

law, the doctrine of precedents on which our judicial system is based. In

Bengal Immunity Company Ltd. v. State of Bihar, it was held that the words

of Article 141, “binding on all courts within the territory of India”, though

wide enough to include the Supreme Court, do not include the Supreme Court

itself, and it is not bound by its own judgments but is free to reconsider them

Page 6 of 16

in appropriate cases. This is necessary for proper development of law and

justice. May be for the same reasons before judgments were given in the

House of Lords and Re Dawson's Settlement Lloyds Bank Ltd. v. Dawson, on

July 26, 1966 Lord Gardiner, L.C. made the following statement on behalf of

himself and the Lords of Appeal in Ordinary:

“Their Lordships regard the use of precedent as an indispensable

foundation upon which to decide what is the law and its

application to individual cases. It provides at least some degree

of certainty upon which individuals can rely in the conduct of

their affairs, as well as a basis for orderly development of legal

rules. Their Lordships nevertheless recognise that too rigid

adherence to precedent may lead to injustice in a particular case

and also unduly restrict the proper development of the law.

They propose, therefore, to modify their present practice and,

while treating former decisions of this House as normally

binding, to depart from a previous decision when it appears

right to do so.

In this connection they will bear in mind the danger of

disturbing retrospectively the basis on which contracts,

settlements of property and fiscal arrangements have been

entered into and also the especial need for certainty as to the

criminal law.”

41. Though the above announcement was not made in the course of judicial

proceeding it shows that it is open to House of Lords to depart from the

doctrine of precedent when considered justified. Section 212 of the

Government of India Act, 1935 and Article 141 of the Constitution of India

were enacted to make the law declared by the Supreme Court binding on all

courts in the country excluding, as is now being interpreted, the Supreme

Court itself. The doctrine of ratio decidendi has also to be interpreted in the

same line. In England a decision is said to be given per incuriam when the

court has acted in ignorance of a previous decision of its own or of a court of

co-ordinate jurisdiction which covered the case before it, or when it has acted

in ignorance of a decision of the House of Lords. In the former case it must

decide which decision to follow, and in the latter it is bound by the decision of

the House of Lords. It has been said that the decision of the House of Lords

mentioned above, refers to a decision subsequent to that of the Court of

Appeal. However, "a prior decision of the House of Lords inconsistent with

the decision of the Court of Appeal, but which was not cited to the Court of

Appeal will make the later decision of the Court of Appeal of no value as

given per incuriam." But if the prior decision had been cited to the Court of

Appeal and that court had misinterpreted a previous decision of the House of

Lords, the Court of Appeal must follow its previous decision and leave the

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House to rectify the mistake. In Halsbury's Laws of England (4th edn., Vol. 10,

para 745), it has been said:

"While former decisions of the House are normally binding upon

it, the House will depart from one of its own previous decisions

when it appears right in the interests of justice and of the proper

development of the law to do so. Cases where the House may

reconsider its own previous decisions are those involving broad

issues of justice or public policy and questions of legal principle.

Only in rare cases will the House reconsider questions of

construction of statutes or other documents. The House is not

bound to follow a previous case merely because it is

indistinguishable on the facts."

42. The position and experience in this Court could not be much different,

keeping in view the need for proper development of law and justice.

43. As regards the judgments of the Supreme Court allegedly rendered in

ignorance of a relevant constitutional provision or other statutory provisions

on the subjects covered by them, it is true that the Supreme Court may not be

said to "declare the law" on those subjects if the relevant provisions were not

really present to its mind. But in this case Sections 25-G and 25-H were not

directly attracted and even if they could be said to have been attracted in

laying down the major premise, they were to be interpreted consistently with

the subject or context. The problem of judgment per incuriam when actually

arises, should present no difficulty as this Court can lay down the law afresh,

if two or more of its earlier judgments cannot stand together. The question

however is whether in this case there is in fact a judgment per incuriam. This

raises the question of ratio decidendi in Hariprasad and Anakapalle cases on

the one hand and the subsequent decisions taking the contrary view on the

other.”

17. The ratio in Dr. (Col.) Subhash Chandra Talwar (supra) proceeds on

the equitable and procedural principle that a litigant ought not to suffer

irreversible financial prejudice where the lis itself has not been

adjudicated on merits and the proceeding is capable of being r e-

presented in accordance with law. Since the later judgment in Patil

Automation (supra) did not examine, distinguish or overrule the said

earlier binding precedent on the ancillary consequence relating to Court

fees and reinstitution, the said aspect remained outside the scope of

consideration before the Court in Patil Automation (supra).

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18. In that view of the matter, the doctrine of per incuriam would have

substantial relevance while considering the ancillary issue of forfeiture or

retention of Court fees after rejection of plaint for non-compliance with

Section 12A(1) of the Commercial Courts Act, 2015. A judgment

rendered in ignorance of an earlier coordinate or binding precedent on

the same point may not possess precedential force to that extent. Patil

Automation (supra) undoubtedly authoritatively settled the mandatory

nature of pre-institution mediation under Section 12A(1) of the Act of

2015; however, insofar as the consequential issue as to whether Court

fees deposited are to be returned or refunded or not and the right of

reinstitution are concerned, the earlier principle recognised in Dr. (Col.)

Subhash Chandra Talwar (supra) was neither noticed nor reconciled.

Therefore, the observations in Patil Automation (supra), if construed to

imply automatic forfeiture of Court fees upon rejection of plaint, would

run contrary to the decision in Talwar’s case (supra) on that limited

aspect, particularly when the earlier binding authority had already

recognised a contrary equitable principle in cases where the proceeding

failed for technical or procedural reasons without adjudication on merits.

19. The law is well-settled as regards the principles of the doctrine of binding

precedent, to promote certainly and consistency in judicial decisions.

Also, in Indian judicial hierarchy, the numerical strength of a bench

dictates its binding authority. Under Article 141 of the Constitution of

India, the Supreme Court‘s rulings bind all Courts. But at the same

time, when smaller benches interact with larger benches, specific rules

of precedent and per incuriam apply. In other words, if a smaller bench

delivers a judgment in direct contradiction or ignorance of a larger bench

ruling, that smaller bench decision is automatically deemed per

incuriam. It loses its value as a precedent and cannot be cited as valid

law.

20. Also, it is well-settled that pronouncement of law by a Division Bench is

to stand as binding on a future Division Bench of the same or smaller

number of Judges. Best reference is the Constitution Bench decision of

Supreme Court in Chandra Prakash and Others versus State of U.P.

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and Another reported in (2002) 4 SCC 234. The Constitution Bench

has held that a pronouncement of law by a Division Bench of Supreme

Court is binding on a Division Bench of same or smaller number of

judges – in the following words: -

“22. A careful perusal of the above judgments shows that this Court took note

of the hierarchical character of the judicial system in India. It also held that it is

of paramount importance that the law declared by this Court should be

certain, clear and consistent. As stated in the above judgments, it is of common

knowledge that most of the decisions of this Court are of significance not

merely because they constitute an adjudication on the rights of the parties and

resolve the disputes between them but also because in doing so they embody a

declaration of law operating as a binding principle in future cases. The doctrine

of binding precedent is of utmost importance in the administration of our

judicial system. It promotes certainty and consistency in judicial decisions.

Judicial consistency promotes confidence in the system, therefore, there is this

need for consistency in the enunciation of legal principles in the decisions of

this Court. It is in the above context, this Court in the case of Raghubir Singh

held that a pronouncement of law by a Division Bench of this Court is binding

on a Division Bench of the same or smaller number of Judges. It is in

furtherance of this enunciation of law, this Court in the latter judgment of

Parija held that: (SCC p. 4, para 6)

“But if a Bench of two learned Judges concludes that an earlier

judgment of three learned Judges is so very incorrect that in no

circumstances can it be followed, the proper course for it to adopt

is to refer the matter before it to a Bench of three learned Judges

setting out, as has been done here, the reasons why it could not

agree with the earlier judgment. If, then, the Bench of three

learned Judges also comes to the conclusion that the earlier

judgment of a Bench of three learned Judges is incorrect,

reference to a Bench of five learned Judges is justified.”

(emphasis supplied)”

21. In due observance of the settled principle of law as discussed above, this

Court is duty-bound to look into and follow the law settled pursuant to

the judgment of Supreme Court in Dr. (Col.) Subhash Chandra Talwar

case (supra).

22. Furthermore, Section 12A under Chapter III A of the Commercial Courts

Act, 2015 has provided for mandatory pre-institutional mediation in a

suit in the following words: -

Page 10 of 16

“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 preinstitution mediation in accordance with such

manner and procedure as may be prescribed by rules made by

the Central Government.”

*** *** *** ***

23. Under Order VII, Rule 11(d) of the Civil Procedure Code, a plaint is liable

to be rejected where, from the statements contained in the plaint itself,

the suit appears to be barred by any law. In this case it was found that

the suit was barred by operation of provision under Section 12A(1) of the

Commercial Courts Act, 2015. Such rejection of suit is deemed to be a

‗decree‘, by virtue of Section 2(2) of the Civil Procedure Code. However,

neither Order VII, Rule 2 nor any other provision of Civil Procedure Code

provides for automatic refund or return of Court fees upon rejection of

the plaint. On the contrary, Order VII, Rule 12 of the Code merely

preserves the plaintiff‘s right to present a fresh plaint where permissible

by law, but still it does not authorize reuse or refund of the Court fees

already paid.

24. The Supreme Court has repeatedly emphasized the strict and limited

scope of Order VII, Rule 11 (d) of the Code, holding that only the

averments in the plaint are relevant to ascertain whether the suit is

barred by law, as seen in Dahiben versus Arvindbhai Kalyanji

Bhanushali [(2020) 7 SCC 366] and Srihari Hammandas Totala

versus Hemant Vithal Kamat [AIR 2021 SC 3802] . The Supreme

Court has also classified that rejection under Rule 11 (d) stands on a

different footing from that under Rules 11(b) and 11 (c) of Order VII of

the Code, where defects relating to valuation or deficit Court fee are

curable; hence, while rejecting a plaint under Order VII, Rule 11(d) the

Court cannot simultaneously grant liberty to amend the plaint, as it has

been held in Ram Prakash Gupta versus Rajiv Kumar Gupta [(2007)

10 SCC 59]. Order VII, Rule 1 requires making of ―a statement of the

value of the subject matter of the suit for Court fees and jurisdiction‖.

The Courts must examine compliance upon filing, potentially giving

opportunity to rectify formal defects. However, substantive defects lead

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to in limine rejection, without such grace. Order VII, Rule 11(d)

therefore, ordinarily amounts to termination of the suit on a legal bar

and not a mere procedural defect. The Court is required to examine how

far the said principle applies in the instant case.

25. As per the statutory provision, a Commercial suit not contemplating any

urgency, should not be instituted, unless the plaintiff exhausts the

remedy of pre-institutional mediation. In Patil Automation Private

Limited (supra) the Supreme Court has authoritatively held that

compliance with Section 12A(1) of the Commercial Courts Act, 2015, is

mandatory and that a Commercial suit instituted without exhausting the

pre-institution mediation process, where no urgent interim relief is

sought for, is liable to rejection under Order VII, Rule 11 of the Civil

Procedure Code.

26. It is significant that in Patil Automation Private Limited (supra) while

the Supreme Court unequivocally declared compliance with Section

12A(1) of the Commercial Courts Act, 2015 to be mandatory and held

that a plaint instituted in breach thereof would be liable to rejection, the

Court did not conclusively specify whether such rejection must

necessarily be traced under Order VII, Rule 11(d) of the Civil Procedure

Code alone or to any other Clause under Rule 11 thereof. The absence of

such categorical classification assumes importance in the context of

consequences like return of Court fees, because of the reason that

rejection under different Clauses of Rule 11 may attract differing

procedural and equitable considerations.

27. The following portion of the judgment is important to note in this

regard:-

“112. The statute which has generated the controversy is the

Amending Act of year 2018. We have noticed that there is undoubtedly

a certain amount of cleavage of opinion among the High Courts. The

other feature which is to be noticed is that, this is a case where the law

in question, the Amending Act containing certain Section 12-A is a

toddler. The law necessarily would have teething problems at the

nascent stage. The specified value has been lowered drastically from

Rs 1 crore to Rs 3 lakhs. The imperative need to comply with the

mandate of Section 12-A which we have unravelled if it has not been

shared by the parties on the advice they received or on the view

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prevailing in the High Courts would necessarily mean that unless we

hold that the law, we declare is prospective such suits must perish. The

court fee paid would have to be written off. In a fresh suit which would

be otherwise barred by limitation, shelter can be taken only under

Section 14 of the Limitation Act. The availability of the power under

Section 14 itself may have to be decided by the court.”

28. The Court‘s conclusion and operative reasoning as enumerated therein

struck balance between two competing considerations - first, that

Section 12A(1) of the Commercial Courts Act, 2015 is mandatory in

nature, and second, that a litigant who has instituted suit earlier should

not be unfairly prejudiced retrospectively. The Court was consciously

adopting a pragmatic and equitable approach rather than imposing an

inflexible procedural penalty in every case. It reflects that the Court did

not treat Section 12A violation as involving adjudication on merits, but

as a threshold procedural defect capable of attracting equitable

considerations. The finding of the Court, as quoted above also

strengthens that ancillary consequence, such as forfeiture of Court fees

need not automatically follow upon rejection of the plaint. The Supreme

Court in Patil Automation (supra), though might have laid down the

principle, for concerning suits lodged prior to coming into force of

Section 12A(1) of the Commercial Courts Act, 2015, still, so far as

forfeiture of Court fees is concerned due to rejection of plaint on account

of breach of provision under Section 12A(1) of the Act, the said principles

may be applied, which are in consonance with the broader scheme as

provided under the Commercial Courts Act, 2015.

29. The judgment of Supreme Court in Patil Automation (supra), therefore,

leaves sufficient doctrinal space for a liberal interpretation in an

appropriate case, that where the plaint is rejected solely on account of

non-compliance with the pre-institution mediation requirement, without

any adjudication on merits and without the suit being effectively

entertained by the Court, the litigant ought not to suffer automatic

forfeiture of Court fee. This approach only would be consistent with the

broader object underlying Section 12A of the Commercial Courts Act,

2015, namely facilitation of dispute resolution and procedural discipline,

rather than imposition of a punitive financial consequence for a defect in

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procedure, which can be cured. The litigant has not effectively invoked

the adjudicatory jurisdiction of the Commercial Court on merits, and

therefore, the Court fees paid for such abrogated proceeding should be

returnable, particularly because the defect is inherently procedural and

curable in nature rather than that being adjudicatory in nature.

30. This would also accord with the equitable principle that Court fee is

essentially a fee for consideration of a cause by the Court and where the

law deems that no valid suit had come into existence at all, retention of

the fee may operate harshly and contrary to the object of facilitating

commercial dispute resolution.

31. A suit can generally be reinstituted after rejection of the plaint under

Order VII, Rule 11(d), Civil Procedure Code or non-compliance with the

mandatory requirement of pre -institution mediation under Section

12A(1) of the Commercial Courts Act, 2015. Such rejection is ordinarily

not final on merits of the dispute, nor does it operate as res judicata; it

merely terminates that particular defective proceeding because the plaint

is barred by law at the time of institution. The Court‘s reasoning in Patil

Automation case (supra) indicates that the defect is procedural and

curable and not a substantive one. While directing that non-compliant

suits be rejected, the Court also protected litigants by invoking Section

14 of the Limitation Act, 1963, so that time spent in prosecuting the

defective suit may be excluded when a fresh suit is filed after complying

with Section 12A(1) of the Commercial Courts Act, 2015. That protection

would make little sense unless the Court contemplated reinstitution of

the suit after curing the defect. Thus, rejection under Order VII, Rule 11

(d) in this context should be understood as rejection of the plaint as

presently framed and instituted, not as an adjudication extinguishing

the cause of action.

32. This position also accords with the general doctrine under the Civil

Procedure Code. Unlike dismissal of a suit on merits rejection of plaint

does not decide the substantive rights of the parties. Order VII, Rule 13

of the Code expressly provides that rejection of a plaint ―shall not of its

own force preclude the plaintiff from presenting a fresh plaint in respect

Page 14 of 16

of the same cause of action.‖ Therefore, where the sole defect is absence

of prior compliance with Section 12A(1) of the Act of 2015, the plaintiff

may ordinarily undergo pre-institution mediation and thereafter file a

fresh suit on the same cause of action, subject to limitation, with

possible benefit of Section 14 of the Limitation Act, 1963. The only

practical caveat is that the subsequent suit must be a fresh institution,

not a mere revival or amendment of the rejected plaint. The earlier

rejection remains final as to that plaint, but not as to the underlying

claim. Accordingly, non-compliance with Section 12A(1) of 2015 Act,

leads to temporary procedural foreclosure, not substantive extinction of

remedy.

33. The entire discussion as above can be summed up in a manner that

where a plaint is rejected under order 7, Rule 11 (d) Civil Procedure Code

solely on the ground of non-compliance with the mandatory requirement

of pre-institution mediation under Section 12A(1) of the Commercial

Courts Act, 2015, the Court fee ought ordinarily be returned to the

plaintiff, since such rejection does not amount to an adjudication on

merits but merely recognizes a procedural bar existing at the time of

institution. The principle underlying Patil Automation Private Limited

(supra) strongly supports this approach, because the Supreme Court

contemplated that after due compliance with Section 12A of the

Commercial Courts Act, a fresh suit may be instituted and even

extended the equitable protection of Section 14 of the Limitation Act,

1963 for exclusion of time spent in prosecuting the defective proceeding.

Once the law recognizes the right of reinstitution after curing the defect,

retention of substantial Court fees paid in the earlier defective

proceeding would operate oppressively and contrary to the remedial

object of the procedural law. Further, order 7, Rule 13, Civil Procedure

Code preserves the plaintiff‘s right to present a fresh plaint on the same

cause of action, thereby indicating that, rejection under Rule 11(d) does

not finally terminate the substantive claim.

Page 15 of 16

34. In such circumstances, principles analogous to Sections 18, 19 and

20(1) of the West Bengal Court Fees Act, 1970, which provide for refund

of Court fees on specific events and circumstances and judicial

precedence concerning return or refund of Court fees where proceedings

fail for technical or jurisdictional reasons, justify return of the Court fee

so that the litigant is not compelled to pay Court fees twice for

adjudication of the same lis, which has never been examined earlier on

merits.

35. Hence, to sum up the decision, it can be said that ratio in the judgment

of Dr. (Col.) Subhash Chandra Talwar’s case (supra) and not that in

Patil Automation (supra), regarding the consequences of rejection of a

plaint for non-compliance with Section 12A of the Commercial Courts

Act could govern the issue of refund of court fees, since the earlier

binding decision in Dr. (Col.) Subhash Chandra Talwar (supra) —

which recognised the litigant‘s entitlement to refund of court fees where

proceedings fail on technical grounds without adjudication on merits—

had not been considered in the later judgment; to that limited extent, the

later decision is to be treated as per incuriam. Rejection of a plaint under

Order VII Rule 11(d) for failure to undergo pre-institution mediation is

merely a procedural and curable defect, it does not determine the rights

of the parties on merits, does not extinguish the cause of action, and

permits institution of a fresh suit after compliance with Section 12A of

the 2015 Act. Hence, this Court finds that since the earlier proceeding

had never been adjudicated on merits, retention of the court fees would

compel the litigant to pay court fees twice for the same lis and hence,

would be inequitable.

36. On the basis of discussion as above, this application No. CAN 2 of 2025

filed by the applicant/appellant/plaintiff is allowed, holding that the

applicant is entitled to refund of Court fees paid at the time of institution

of the earlier suit before the Commercial Court. Hence, appropriate

necessary steps be taken immediately, maximum within a period of three

Page 16 of 16

(03) weeks from the date of communication of copy of this judgment for

compliance thereof by the competent authority.

37. Urgent certified copy of this judgment, if applied for, be supplied to the

parties upon compliance with all requisite formalities.

(Arijit Banerjee, J.)

(Rai Chattopadhyay, J.)