Novenco Building and Industry A/S v. Xero Energy Engineering Solutions Private Ltd. & Anr.

Brief facts

The appellant, a Danish manufacturer of industrial fans marketed as 'Novenco ZerAx', sued in the High Court of Himachal Pradesh for infringement of its intellectual property rights. A Single Judge rejected the plaint on 28 August 2024 (Commercial Suit No. 13 of 2024) for non-compliance with the pre-institution mediation requirement in Section 12A of the Commercial Courts Act, 2015, and a Division Bench affirmed on 13 November 2024 (Commercial Appeal No. 1 of 2024).

Issues before the Court

Whether an IP infringement suit 'contemplates any urgent interim relief' under Section 12A where there was a lapse of time between the plaintiff's discovery of the infringement and the filing of the suit.

Court's findings

The Court reviewed its earlier decisions on Section 12A, including Yamini Manohar, under which urgency is judged holistically from the plaint, documents and facts from the plaintiff's standpoint, and a prayer for urgent relief must not be a disguise to avoid mediation.

The High Court had wrongly assessed the appellant's entitlement to urgent relief on the merits instead of the urgency evident from the plaint, and had treated delay between discovery and filing as negating urgency. It also failed to consider that the action concerned continuing infringement of intellectual property.

Decision

Appeal allowed. The judgments of the Single Judge and the Division Bench were quashed and the suit was restored to the file of the High Court to proceed on merits.

Important paragraph references

Para 26: holdings (i) and (ii); paras 27-28: operative order.

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