JUDGMENT : (C. Saravanan, J.) 1. Heard learned counsel for the plaintiff and learned counsel for the respondent at length and have perused Section 12A of the Commercial Courts Act, 2015, which was introduced with effect from 03.05.2018 and the decision of the Hon'ble Supreme Court in Patil Automation Private Limited and ors. vs Rakheja Engineers Private Limited [2022 SCC OnLine SC 1028] and the four decisions relied by the learned counsel for the defendant in the following cases: M/s.Micro Labs Limited vs A.Santhosh dated 14.09.2022, Mohamed Aboobacker Chank Lungi Pvt. Ltd. vs Revathy Textiles and ors. dated 27.09.2022, Mr.K.Varathan vs Mr.Prakash Babu Nakundhi Reddy dated 13.10.2022 and M/s.Mango Mass Media Pvt. Ltd vs M/s.Bayshore Records and ors. dated 18.11.2022. 2. After hearing learned counsel appearing for the plaintiff and learned counsel for the defendant at length and after perusing the provisions of Section 12A of the Commercial Courts Act, 2015, Order XXXIX Rule 1, Rule 2 and Rule 3, this Court is of the view that the plaintiff, being the dominus litis, is entitled to file an application for interim injunction and Order XXXIX of Civil Procedure Code. It cannot be stated that the suit filed by the plaintiff would be barred if the plaintiff fails to exhaust the remedy of Preinstitution Mediation, in accordance with the procedure that is contemplated under Section 12A (1) of the Commercial Courts Act, 2015. Whether, the plaintiff would be entitled to interim relief under Order XXXIX (1) of Civil Procedure Code is another issue, which has to be decided on merits. Such an issue cannot be decided at the threshold of admission of suit, where, the plaintiff admittedly seeks for urgent interim relief from the Court. 3. Section 12A of the Commercial Courts Act, 2015 has to be read plainly, without any other additions to it. If a suit is filed along with an application for urgent interim relief, then, it cannot be said that the plaintiff should have also exhausted the alternate remedy, if there was a delay. A delay in instituting a suit may dis-entitle the plaintiff equitable relief under Order XXXIX of Civil Procedure Code. However, in the context of disputes under the Intellectual Property Law, the Hon'ble Supreme Court, in Midas Hygiene Industries (P) Ltd. and another vs Sudhir Bhatia and others [ (2004) 3 SCC 90 ] in paragraph 5, has held as under: “5. However, in the context of disputes under the Intellectual Property Law, the Hon'ble Supreme Court, in Midas Hygiene Industries (P) Ltd. and another vs Sudhir Bhatia and others [ (2004) 3 SCC 90 ] in paragraph 5, has held as under: “5. The law on the subjects is well settled. In case of infringement either of trade mark or of copyright, normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the mark was itself dishonest.” This view is also echoed by the Calcutta High Court earlier in Express Bottlers Services Private Ltd. vs Pepsico Inc. and ors. [1989 PTC 14] specifically in paragraph 47, the law relating to the leaves in trade mark suit have been discussed, which reads as under: “47. It is true that distinctiveness of the mark may be lost by extensive piracy so that the mark becomes public juries. It was held in (33) National Bill Co. vs. Metal Goods Manufacturing Co. reported in AIR 1971 SC 868 that mere neglect to proceed against the infringers does not necessarily constitute abandonment if it is in respect of infringements which are not sufficient to affect the distinctiveness of the mark even if the proprietor is aware of them. When neglect by the owner of the mark to challenge the infringement is alleged, the character and the extent of the trade carried on by the infringers and their position in the commercial world have to be reckoned in considering whether the registered proprietor has lost his mark by such neglect. To establish the plea of common use, the use by other persons should be shown to be substantial. In the present case, there is no evidence regarding the extent of the trade carried on by the alleged infringers or their respective position in the trade. If the proprietor of the mark is expected to pursue each and every insignificant infringer to save his murk, the business will come to a stand still. Because there may be occasion when the malacious persons only to harass the proprietor may use his mark by way of pin pricks. If the proprietor of the mark is expected to pursue each and every insignificant infringer to save his murk, the business will come to a stand still. Because there may be occasion when the malacious persons only to harass the proprietor may use his mark by way of pin pricks. In answer to this allegation, the respondent No.1 in Joyce's supplementary affidavit dated 1.12.86 stated that there was no whisper of this case of public use of the mark in the petition itself. This case has been set up for the first time in the affidavit-in-reply. Moreover, 'Pepsi' and 'Pepsicola' were registered as carbonated beverages, syraps and concentrates for preparation thereof these goods came underclass 32 of the Fourth Schedule to the Trade and Merchandise Marks Act, 1958. It is alleged by the petitioner that the mark pepsi is being used by others in respect of ice, ice-cream or ice candies which come under class 30 of the said Fourth Schedule and the sealing machine manufactured in the name of Pepsi comes under class 7 of the 4th Schedule relating to machine and machine tools. The alleged banners, stickers, danglers, etc. disclosed by the petitioner for establishing common use of the marks of the respondent No.1 are not the type of goods for which the marks of the respondent No.1 were registered. The use of the mark Pepsi on goods in falling within class 7 or 30 are wholly irrelevant for the purpose of this case. moreover, the plea of common use must fail because for establishing that, it must be provided that the businesses carried on by the infringers are of similar nature and are extensive and substantial. The mere use of the name is irrelevant because a registered proprietor is not expected to go on filing suits or proceedings against infringers who are of no consequence. It has been submitted before this Court on behalf of the respondent No.1 that if it is found that piracy in respect of the mark is going on substantially and in respect of the goods of the similar nature coming under class 32 of the Fourth Schedule of the Act, the Respondent No.1 would certainly take action. It has been submitted before this Court on behalf of the respondent No.1 that if it is found that piracy in respect of the mark is going on substantially and in respect of the goods of the similar nature coming under class 32 of the Fourth Schedule of the Act, the Respondent No.1 would certainly take action. Mere delay in taking action against the infringes is not sufficient to hold that the registered proprietor has lost the mark intentionally unless it is positively proved that delay was due to intentional abandonment of the right over the registered mark. This Court is inclined to accept the submissions of the respondent No.1 on this point. The facts of this case are not sufficient to hold that there was any intentional abandonment either due to non-use or for not taking steps against the so-called infringers. It is the petitioner who is trying to take the advantage of the internationally famous trade mark of the Respondent No.1 knowing fully well the extent of reputation the respondent No.1 his acquired for his mirk in Indian market. The petitioner has no right to use the marks of which the respondent No.1 is the registered owner. The respondent No.1 did not lose its mark by not proceeding against insignificant inferences. (11) Person aggrieved within the meaning of Section 46(1) of Act The petitioner's allegation is that in manufactures ingredients and sales, etc. for manufacture of nonalcoholic beverages and aerated water under the mark 'Pepsi' and also sells the same under the same mark and label Pepsi. The respondent No.3 is one of the franchise holders of the petitioner and as such it also manufactures salts, beverages under the same mark. The petitioner has applied through the Registrar of Trade Mark, Bombay, for registration of the mark Pepsi under clause 32 of the Fourth Schedule to the 1958 Act in relation to its products which is now pending. The petitioner has taken out the present application under Section 46 of the Act for taking off the register the marks Pepsi and Pepsicola of which the Respondent No.1 is the registered proprietor. The ground for removal is that within the statutory period fixed and longer the respondent No.1 did not make any bona fide use of the mark under Section (1)(b) of the Act. The ground for removal is that within the statutory period fixed and longer the respondent No.1 did not make any bona fide use of the mark under Section (1)(b) of the Act. It is submitted by the petitioner's counsel that on behalf of the respondent No.1 it has been alleged that the petitioner has been set up by the Parle Group of manufacturers of soft drinks to prevent the respondent No.1 to re-enter in Indian market to protect their own monopoly in the business. The petitioner is tainted with fraud. But these allegations are irrelevant for the purpose of this case. The petitioner relied on 48 Halsbury, 4th Edn., Art.118 at page 83:- “In the exercise of the discretion the merits or demerits of the applicant for rectification are irrelevant.” 4. The Delhi High Court in a recent decision in Bolt Technology OU vs Ujoy Technology Private Limited and another [2022 SCC OnLine Del 2639] dated 29.08.2022 has held as under: “17. As per the experience seen in intellectual property cases, the relief of interim injuction, including at the ex-parte stage and ad-interim stage, is extremely important. Such matters do not merely involve the interest of the plaintiff and the defendants, which are the contesting parties before the Court, but also involve the interest of the customers/consumers of the products and services in question. Intellectual property cases relate to a wide gamut of business such as - medicines, FMCG, food products, financial services, technology, creative works such as books, films, music, etc. Recent trends also point towards large scale misuse on the internet. In some cases, due to misuse of known marks and brands, the consumers are being duped into parting with large sums of money. The rights of the parties are affected almost on a daily basis as there is continuous manufacturing, selling and offering of services or goods to the customers. The ambit of urgent interim relief that may be required to be granted is extremely varied and depends on the facts of each case. Such releifs are usually granted by Courts not merely for protection of statutory and common law rights, but also in order to avoid confusion, deception, unfair and fraudulent practices, etc., in the marketplace.” 5. The decision of the Hon'ble Supreme Court in Patil Automation Private Limited and ors. Such releifs are usually granted by Courts not merely for protection of statutory and common law rights, but also in order to avoid confusion, deception, unfair and fraudulent practices, etc., in the marketplace.” 5. The decision of the Hon'ble Supreme Court in Patil Automation Private Limited and ors. vs Rakheja Engineers Private Limited (supra), clearly explains the scope of Section 12A of the Commercial Courts Act, 2015. In this connection, a reference is made to paragraph 62, 71 and 81, which reads as under: “62. The potential of Section 89 of the CPC for resolving disputes has remained largely untapped on account of the fact that mediation has become the product of volition of the parties. Courts, no doubt, have begun to respond positively. However, there was a pressing need to decongest the trial courts, in commercial matters in particular, as they bear the brunt of docket explosion. It is noteworthy that Section 12A provides for a bypass and a fast-track route without for a moment taking the precious time of a court. At this juncture, it must be immediately noticed that the Law-giver has, in Section 12A , provided for pre- institution mediation only in suits, which do not contemplate any urgent interim relief. Therefore, preinstitution mediation has been mandated only in a class of suits. We say this for the reason that in suits which contemplate urgent interim relief, the Law-giver has carefully vouch-safed immediate access to justice as contemplated ordinarily through the courts. The carving out of a class of suits and selecting them for compulsory mediation, harmonises with the attainment of the object of the law. The load on the Judges is lightened. They can concentrate on matters where urgent interim relief is contemplated and, on other matters, which already crowd their dockets. 71. One of the aspects which weighed with the learned single judge of the Bombay High Court in Ganga Taro (supra) is that in a case where the suit is instituted under Section 80 of the CPC without issuing any notice, if the defendant does not take up the plea of violation of Section 80, there can be waiver. Thus, even if Section 12A in a given case, where the defendant does not set up the case there can be waiver and therefore, Section 12A is not mandatory. Thus, even if Section 12A in a given case, where the defendant does not set up the case there can be waiver and therefore, Section 12A is not mandatory. No doubt, the Division Bench of the Bombay High Court while reversing the learned single judge proceeded to hold that there cannot be waiver as Section 12A is based on public interest. The approach of the learned Single Judge does not commend itself to us. The question as to whether Section 12A is mandatory or not, must be decided with reference to language used, the object of the enactment and a host of other aspects. The fact that if a defendant does not raise the plea about compliance of Section 12A, it may result in a given case of waiver cannot result in Section 12A not being mandatory. If it were so, then in a case where there is no notice under Section 80, a plaint can never be rejected. It is legally untenable and defies logic. Another argument raised by Shri Saket Sikri, learned counsel is that by the impugned order, the High Court has affirmed the trial Court order that the suit be kept in suspended animation and referred the parties for mediation. According to him, it is substantial compliance of Section 12A of the Act. It is eminently just. He also points out the conduct of the appellant in not even cooperating in the mediation process. We are unable to accept this argument. We will refer to Section 80 of the CPC to assist us in justifying our conclusion. Under Section 80 (1) of the CPC, a suit not covered by Section 80 (2), which is filed in defiance of the former provision, that is without serving any notice, is not maintainable. The suit would be barred and liable to be rejected under Order VII Rule 11. The only exception is what is provided in Section 80 (2). It contemplates a suit to obtain an urgent or interim relief. Such a suit may be instituted with the leave of the court without serving any notice as required under Section 80 (1). In a case where a plaintiff does not seek urgent interim relief under Section 80 (2), the suit would fall within the four walls of Section 80 (1). Section 80 (1) is mandatory. In regard to such suit, there is no question of substantial compliance. In a case where a plaintiff does not seek urgent interim relief under Section 80 (2), the suit would fall within the four walls of Section 80 (1). Section 80 (1) is mandatory. In regard to such suit, there is no question of substantial compliance. The suit must culminate in rejection of the plaint on invoking power under Order VII Rule 11. We may immediately draw a parallel between Section 80(1) of the CPC and 12A of the act. In Section 12A also, the bar of institution of the suit is applicable only in a case in which plaintiff does not contemplate urgent interim relief. The situation is akin to what is contemplated in Section 80(1) of the CPC. In other words, the suit under the Act which does not contemplate urgent interim relief is like a suit covered by Section 80(1) of the CPC which does not project the need for any urgent or interim relief. In regard to a suit covered under Section 12A of the Act, namely, in a suit where interim relief is not contemplated, there can be no substantial compliance by way of post institution reference to mediation. The argument of the plaintiff overlooks the object apart from the language used besides the design and scheme of the law. It will, if accepted, lead to courts also spending their invaluable time on such matters which follow from adjournments, objections and hearings. There is no need to adopt such a course. 81. In the cases before us, the suits do not contemplate urgent interim relief. As to what should happen in suits which do contemplate urgent interim relief or rather the meaning of the word ‘contemplate’ or urgent interim relief, we need not dwell upon it. The other aspect raised about the word ‘contemplate’ is that there can be attempts to bypass the statutory mediation under Section 12A by contending that the plaintiff is contemplating urgent interim relief, which in reality, it is found to be without any basis. Section 80(2) of the CPC permits the suit to be filed where urgent interim relief is sought by seeking the leave of the court. The proviso to Section 80 (2) contemplates that the court shall, if, after hearing the parties, is satisfied that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to the court after compliance. The proviso to Section 80 (2) contemplates that the court shall, if, after hearing the parties, is satisfied that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to the court after compliance. Our attention is drawn to the fact that Section 12A does not contemplate such a procedure. This is a matter which may engage attention of the lawmaker. Again, we reiterate that these are not issues which arise for our consideration. In the fact of the cases admittedly there is no urgent interim relief contemplated in the plaints in question.” 6. Section 2(2) of the Commercial Courts Act, 2015 is extracted herein under: 2. Definitions.— (2) The words and expressions used and not defined in this Act but defined in the Code of Civil Procedure, 1908 (5 of 1908) and the Indian Evidence Act, 1872 (1 of 1872), shall have the same meanings respectively assigned to them in that Code and the Act.” 7. Section 9 of the Code of Civil Procedure is extracted herein under: “Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.” 8. The suit filed by the plaintiff is not barred. If a suit is filed with an application for urgent interim relief, then, the question of relegating the plaintiff to exhaust the remedy of Pre-institution Mediation under Section 12A of the Commercial Courts Act, 2015 cannot be contemplated. Whether the plaintiff is indeed entitled for equitable relief under Order XXXIX Rule 1 of the Code of Civil Procedure r/w Rule 3 is another matter, which would be required to be decided at the time of consideration of the application filed under Order XXXIX Rule 1 of Code of Civil Procedure. Rule 12 A of the Commercial Courts Act, 2015 will apply only where in a suit filed under Order VII Rule 1 of the Code of Civil Procedure, the plaintiff has not filed any application for any urgent interim relief. 9. In paragraph 71, the Hon'ble Supreme Court has categorically stated that the bar under Section 12A of the Commercial Courts Act, 2015 will apply only where the plaintiff does not contemplate urgent interim relief. 9. In paragraph 71, the Hon'ble Supreme Court has categorically stated that the bar under Section 12A of the Commercial Courts Act, 2015 will apply only where the plaintiff does not contemplate urgent interim relief. The Court, in paragraph 62, held that “it must be immediately noticed that the Lawgiver has, in Section 12A, provided for pre-institution mediation only in suits, which do not contemplate any urgent interim relief”. 10. As admittedly in this case the plaintiff has filed application under Order XXXIX Rule 1 of Code of Civil Procedure, it cannot be said that the plaintiff did not contemplate urgent relief. Therefore, it also cannot be said that the suit is not maintainable. 11. Further, the Hon'ble Supreme Court dealt with the situation where no applications for urgent interim reliefs were filed before the Trial Court and therefore it was in that context the Hon'ble Supreme Court compared Section 80(2) of the CPC and summarized the law from paragraph 80 onwards. 12. In the light of the above discussion, I overrule the objection of the defendant and answer the issue in favour of the plaintiff. 13. List these applications for final hearing on 07.12.2022.