“4. That the Plaintiff has failed to comply with the provisions of Section 12A of Commercial Courts Act, 2015 and never referred its claims for pre-suit mediation. It is an admitted fact that it was the Defendant who had invoked the pre-suit mediation in terms of Section 12-A of Commercial Courts Act, 2015 by referring his claims for pre-suit mediation. It is submitted that the Defendant had filed an application u/s 12-A of Commercial Courts Act, 2015 seeking reference of his disputes/ claims of INR 2,10,00,000/- (Rupees Two Crores Ten Lacs Only) inclusive of principle amount of INR 1,43,02,289/(Rupees One Crore Forty Three Lacs Two Thousand Two Hundred and Eighty Nine Only) along with interest @ 18% P.A. from the date of default till the date of realization and compensation on account of 'loss of profit' for presuit mediation against the Plaintiff. It is submitted that Ld. Delhi High Court Legal Services Committee was pleased to serve the notice upon the Plaintiff for pre-suit mediation. It is submitted that the after the receipt of notice, the Plaintiff appeared and showed its willingness for participation in mediation. However, the mediation had got failed and the non starter report was issued. It is pertinent to mention herein that the claim of the Plaintiff was never referred for pre-suit mediation as per Section 12-A of Commercial Courts Act, 2015 as it was only the claim of the Defendant which was referred for mediation as evident from fact that the ad-hoc mediation fees was paid by the parties qua the claim of the Defendant. The parties had only paid the mediation fees for the adjudication of claims of the Defendant. Thus, the suit of the Plaintiff is pre-mature and is not maintainable in terms of strict provisions of Commercial Courts Act, 2015.”
