The requirement of mediation under section 12A of the Commercial Courts Act has been a difficult conundrum haunting plaintiffs in Intellectual Property suits, what with conflicting orders being given by different High Courts in the country. On October 27, 2025, a two-judge Bench of the Supreme Court of India resolved the conundrum in Novenco Building & Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd. The Apex Court settled the long-standing controversy surrounding the interpretation of the phrase “contemplates any urgent interim relief” in Section 12A of the Commercial Courts Act, 2015, particularly in the context of suits alleging continuing infringement of intellectual property rights (IPR).

Section 12A mandates that “a suit which does not contemplate any urgent interim relief shall not be instituted unless the plaintiff exhausts the remedy of pre-institution mediation.” The provision was introduced to encourage early dispute resolution and reduce commercial litigation by requiring mediation before filing a suit, except where immediate judicial intervention is necessary.

In practice, however, the interpretation of what amounts to “urgent interim relief” varied significantly among High Courts, especially in IPR disputes where infringement is often continuous and causes ongoing commercial harm.

This ruling fills an important gap noted in our January 28, 2025 article (link), which recorded divergent High Court approaches; while many High Courts had treated IPR suits as often meriting exemption, the matter remained fact-sensitive. Novenco now provides authoritative guidance and is binding on all courts.

Brief Facts

The dispute arose between Novenco Building & Industry A/S (“Novenco”), a Danish manufacturer of patented industrial ventilation systems, which alleged that Xero Energy Engineering Solutions Pvt. Ltd. (its erstwhile dealer) and its affiliate Aeronaut Fans Industry Pvt. Ltd. were manufacturing and selling products identical to Novenco’s patented “ZerAx” fans in India.

Novenco instituted a commercial suit before the Himachal Pradesh Commercial Court, seeking ex parte injunction and search-and-seizure orders to restrain further manufacture and sale of the infringing goods. The defendants filed an application under Order VII Rule 11 CPC, contending that the suit was not maintainable for non-compliance with the mandatory pre-institution mediation requirement under Section 12A of the Act.

The Single Judge upheld the objection, holding that since there was an unexplained delay of approximately six months between the alleged acts of infringement and the filing of the suit, the matter did not “contemplate any urgent interim relief.” Accordingly, the plaint was rejected as non-maintainable.

On appeal, the Division Bench of the Himachal Pradesh High Court affirmed the decision, reasoning that urgency could not be claimed after such delay, thereby rendering pre-suit mediation obligatory.

This restrictive interpretation, diverging from the more purposive approach adopted by the Delhi, Bombay and Telangana High Courts, all of which had applied the principles laid down by the Supreme Court earlier in Yamini Manohar v. T.K.D. Keerthi ((2024) 5 SCC 815), created considerable uncertainty. Novenco thus appealed to the Supreme Court of India as the occasion to reconcile these stands and settle the correct construction of the provision.

Core Holdings of Novenco

In a detailed judgment, the Supreme Court set aside both the Single Judge and Division Bench of the Himachal Pradesh High Court orders and articulated clear principles governing the application of Section 12A in IPR disputes.

1. Continuing Infringement Constitutes Ongoing Urgency: The Court held that “each act of manufacture, sale, or offer for sale of the infringing product constitutes a fresh wrong and recurring cause of action.” Accordingly, a suit alleging continuing infringement “by its very nature contemplates urgent interim relief,” since every day of unchecked infringement causes continuing harm to the right-holder’s goodwill and market standing.
2. Delay Alone Does Not Negate Urgency: The Court expressly ruled that “mere delay in bringing an action does not legalise an infringement and the same cannot defeat the right of the proprietor to seek injunctive relief against the dishonest user.” It further explained that “the urgency, therefore, is inherent in the nature of the wrong and does not lie in the age of the cause but in the persistence of the peril.” Urgency must, therefore, be assessed by reference to the persistence of harm, not by the chronological age of the cause of action. Procedural delay, if explained or reasonable, cannot extinguish the right to urgent protection. The Bench directed that “the court must look beyond time lag and evaluate the substance of the plea for interim protection.”
3. Public Interest Reinforces Urgency: The Court observed that “intellectual property disputes are not confined to the private realm. When imitation masquerades as innovation, it sows confusion among consumers, taints the marketplace and diminishes faith in the sanctity of trade. The public interest, therefore, becomes the moral axis upon which the urgency turns.” The need to prevent confusion in the market and protect consumers from deception thus imparted an additional colour of immediacy to the relief sought.
4. Section 12A Test Is Plaintiff-Centric and Holistic: The Court directed that trial courts must read the plaint and annexures “from the plaintiff’s standpoint” to determine whether urgent interim relief is contemplated. It cautioned that “the insistence on pre-institution mediation in a situation of ongoing infringement, in effect, would render the plaintiff remediless, allowing the infringer to continue to profit under the protection of procedural formality.” Courts were therefore not to adjudicate merits or deny exemption solely on account of the passage of time.

The Supreme Court accordingly set aside the Himachal Pradesh High Court’s orders and restored Novenco’s suit for adjudication on merits before the Commercial Court.

Doctrinal Significance and Conclusion

The Novenco decision marks a turning point in the jurisprudence surrounding Section 12A. The Supreme Court’s purposive reading ensures that the mandate of pre-institution mediation operates in harmony with, rather than in derogation of, the need for immediate judicial protection in IPR disputes. By holding that continuing infringement equals continuing urgency, the Court has effectively aligned procedural law with commercial and equitable realities.

Importantly, the ruling also restores clarity and confidence in the grant of interim injunctions in IP matters, especially patent infringement matters. In the aftermath of divergent High Court views, particularly the restrictive approach of the Himachal Pradesh High Court, many plaintiffs faced procedural barriers in obtaining relief. Novenco decisively removes this uncertainty, reaffirming that suits contemplating interim protection against ongoing infringement are maintainable without pre-institution mediation. The decision will guide courts to adopt a plaintiff-centric, substance-over-form approach, bringing long-needed certainty to litigants navigating the intersection of mediation and injunction in commercial IPR litigation. 

This article can also be accessed at: Lexology: “Continuing Infringement, Continuing Urgency”. 

Our team would be happy to discuss how this development may impact your patent enforcement or litigation strategy in India. You may reach out to Dr. Anju Khanna (akhanna@indiaip.com) or Manika Arora (marora@indiaip.com) for any further discussions or clarifications