Supreme Court: In a case relating to pre-litigation mediation in commercial disputes, the bench of KM Joseph* and Hrishikesh Roy, JJ has stressed on making mediation a potent alternate dispute resolution device.
The Court listed down the following indispensable requirements that are necessary to achieve this goal:
- Existence of adequate infrastructural facilities and, what is more important, availability of trained and skilled Mediators. The role of the Mediator, as per Rule (5) of the Commercial Courts Act, 2015 (Pre-Institution Mediation and Settlement) Rules, 2018, is to facilitate the voluntary resolution of a commercial dispute and assist the parties in this regard.
- Availability in the number of Mediators in the country, particularly, in the light of lowering of the monetary valuation from Rs. 1 crore to Rs. 3 lakhs. It is all well to pass a law with sublime objects as in this case. However, the goal will not be realised unless the State Governments and all other relevant Authorities bestow their attention in the matter of providing adequate facilities.
- Knowledge of the laws, which are the subject matter of the suits under the Act, is indispensable for a Mediator to effectively discharge his duties. His role is supreme and it is largely shaped by his own knowledge of the law that governs commercial cases. There must be training by Experts, including at the State Judicial Academies. This must be undertaken on a regular and urgent basis, particularly keeping in mind when there is a dearth of trained mediators.
- There is a need to have a dedicated bar for mediation. The effective participation of the bar which must be adequately remunerated for its service will assist in mediation evolving. The concerned High Court may also undertake periodic exercise to establish a panel of trained mediators in District and Taluka levels as per need.
In the case at hand, the Court has held that the statutory pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015 is mandatory and any suit instituted violating the mandate of Section 12A must be visited with rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code, 1908.
[PATIL AUTOMATION PRIVATE LIMITED v. RAKHEJA ENGINEERS PRIVATE LIMITED, 2022 SCC OnLine SC 1028, decided on 17.08.2022]
*Judgment by: Justice KM Joseph
For petitioner(s): AORs Ayush Negi, Santosh Krishnan, Arup Banerjee,
Advocates Chitanya Nikte, Vishakha Upadhyaya, Himanshu Tyagi,. Varnita Ojha, Sonam Anand
For Respondent(s): AORs Hetu Arora Sethi, Nikhil Swami
Advocates Saket Sikri, Ekta Kalra Sikri, Ajay Pal Singh Kullar, Vikalp Mudgal, Prabha Swami, Divya Swami
For Appellant: Senior Advocate Sanjeev Anand