Before filing most commercial suits in India — including many IP disputes — you must first attempt mediation. But an IP suit that genuinely seeks urgent interim relief is exempt. Knowing which side of that line you fall on shapes how you plead and how fast you can move.
The rule: Section 12A
The Commercial Courts Act, 2015 created a framework for commercial disputes, including IP, mercantile documents, partnership and franchise matters. In 2018, Section 12A was inserted to require pre-institution mediation before a commercial suit is filed — unless the suit contemplates urgent interim relief.
The mechanics:
- Mediation is conducted through the State Legal Services Authorities.
- It must be completed within three months, extendable by two months with the parties’ consent.
- Time spent in mediation is excluded from the limitation period.
- A written settlement has the same status as an arbitral award.
It is mandatory — Patil Automation
Any doubt about how strict this is was settled by the Supreme Court in Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd. (2022): the requirement to exhaust pre-institution mediation under Section 12A is mandatory, and a suit filed in breach is liable to be rejected.
The IP exception: urgent interim relief
IP disputes often turn on speed — stopping an infringer before the market is flooded. The Delhi High Court has recognised that such cases can fall within the urgent interim relief exemption:
- Bolt Technology OU v. Ujoy Technology (Aug 2022) and Retail Royalty Company v. Nirbhay Marg (Aug 2022) — exemptions apply where genuine urgent relief is sought, especially to protect consumers and prevent market deception.
- Chandra Kishore Chaurasia v. RA Perfumery Works (Oct 2022) — crucially, the exemption depends on the nature of the pleadings and the relief actually sought, not on a party merely reciting “urgency.” Contrived urgency will not do.
What it means in practice
- If you need an injunction now, plead the urgency genuinely and specifically — the pleadings, not labels, decide whether you clear Section 12A.
- If you do not, budget for mediation first; skipping it can get your suit rejected outright.
- Be realistic: in practice a reluctant defendant can simply not participate, at which point the plaintiff proceeds to court — so mediation sometimes operates as a procedural gateway rather than a genuine settlement forum.
Frequently asked questions
Is pre-litigation mediation mandatory for IP suits in India? Yes, under Section 12A, unless the suit genuinely contemplates urgent interim relief — the Supreme Court held it mandatory in Patil Automation.
When is an IP suit exempt from mediation? When it genuinely seeks urgent interim relief, judged from the pleadings and the actual relief sought — not from a mere assertion of urgency.
How long does Section 12A mediation take? Up to three months, extendable by two months with consent, with that time excluded from limitation.
What is the status of a mediated settlement? A written settlement under this framework has the same legal effect as an arbitral award.
Legislation referred to
- Commercial Courts Act, 2015