Under the Commercial Courts Act, 2015, all commercial disputes in India are subject to a mandatory preinstitution mediation regime, requiring parties to attempt mediation before filing a suit. This statutory mandate carves out a significant exception: the requirement of pre-institution mediation is waived in a suit that “contemplates any urgent interim relief.” As to what constitutes “urgent interim relief”, though this has been a subject matter of court rulings, including in the context of intellectual property (IP) disputes, judicial opinion has lacked uniformity. The Supreme Court of India’s ruling in Novenco Building & Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd. (2025 INSC 1256), delivered on October 27, 2025, marks a significant turning point. The court held that in IP suits alleging continuing infringement, urgency is inherent, and the exemption from pre-suit mediation clearly applies. By doing so, it resolves conflicting High Court interpretations and recalibrates the needle by streamlining prompt access to interim relief in IP litigation.
It was a 2018 amendment that introduced the statutory framework for pre-litigation mediation to the Commercial Courts Act, 2015 under Chapter IIIA. Section 12A constitutes its cornerstone, making mediation mandatory before filing the commercial suits valued at three lakh rupees (approximately USD 3,400) or more. The provision clearly states that a commercial suit “shall not be instituted” unless the plaintiff exhausts preinstitution mediation, with the only exception being cases that seek urgent interim relief. The mandatory nature of this requirement is emphasised by the usage of the phrase “shall not” in the statutory language.
Mediations are conducted by the Legal Services Authorities. The process must be completed within a strict timeframe of three months from the application date, though this period may be extended by two additional months with parties’ consent. Notably, this period is excluded from computation under the Limitation Act, 1963. Any settlement reached must be documented in writing and signed by both parties and the mediator. Such settlements carry significant legal weight as they “shall have the same status and effect as if it is an arbitral award” under Section 30(4) of the Arbitration and Conciliation Act, 1996 thereby conferring on them the finality and enforceability of arbitral awards.
More recently, the adoption of Section 12A within the Mediation Act, 2023, marks a significant development in India’s legal framework, reinforcing preinstitution mediation as a mandatory stage of the dispute resolution process.
The Supreme Court, in Patil Automation Private Limited and Others v. Rakheja Engineers Private Limited (2022), unequivocally declared that Section 12A is mandatory, and that any suit instituted without first exhausting pre-institution mediation, unless the suit contemplates urgent interim relief, must be rejected under Order VII Rule 11 of the Code of Civil Procedure (CPC). This power may be exercised by the Court suo motu, even in the absence of an application from the defendant.
Subsequently, in Yamini Manohar v. T.K.D. Keerthi (2023), the Supreme Court, reaffirming its stance in Patil Automation, clarified that courts must scrutinise the actual necessity and bona fides of a plaintiff’s plea for urgent interim relief. The Court emphasized that the determination of whether the case contemplates urgent interim relief must depend on the facts and circumstances of each case, and that such a plea cannot serve as a mere pretext to circumvent the mandatory mediation requirement.
In Dhanbad Fuels Private Limited v. Union of India & Anr. (2025), the Supreme Court further harmonised the principles laid down in Patil Automation (2022) and Yamini Manohar (2023) in relation to suits filed before the prospective date of August 20, 2022. The Court reiterated that pre-institution mediation is mandatory, but clarified that the consequence of plaint rejection under Order VII Rule 11 for noncompliance with Section 12A applies only to suits instituted on or after August 20, 2022, as established by the prospective application laid down in Patil Automation.
The Supreme Court, in the Novenco case, set aside orders issued by both the Single Judge as well the Division Bench of the Himachal Pradesh High Court, that had rejected a composite patentand- design suit for lack of Section 12A compliance. The High Court, from a six-month delay between inspection of infringing products and the institution of the lawsuit, had inferred that there was no urgency, and declared that exemption from pre-suit mediation could not be claimed merely because interim relief was sought.
The Supreme Court criticised this reasoning as flawed. Addressing for the first time with clarity, the question whether delay in instituting an IP suit extinguishes urgency when infringement is ongoing, it held that delay cannot automatically negate urgency.
Applying these principles, the Supreme Court held that Novenco’s suit indeed “contemplated urgent interim relief” notwithstanding the lapse of time, and that Section 12A did not bar its institution. The Court found that the subject matter concerned continuing in fringement of intellectual property rights, where each act of manufacture, sale or offer constituted a fresh wrong and recurring cause of action. It reiterated that mere delay in filing does not legalise infringement or defeat the right to an injunction. On the contrary, each passing day of infringement aggravates harm to the Plaintiff’s reputation, goodwill and proprietary rights, eroding its market standing.
Remarking that the urgency lies in the nature of the wrong and, “not in the age of the cause of action but in the persistence of the peril”, it stated that urgency is inherent in continuing infringement and delay does not negate that urgency.
Finally, the Court emphasised the public-interest dimension of intellectual property enforcement, observing that IP rights, being rights in rem, transcend private disputes. When imitation masquerades as innovation, it sows confusion among consumers, taints the marketplace, and erodes trust in the integrity of trade. The Court held that public interest forms the moral axis of urgency – providing the ethical basis for immediate judicial intervention in IP infringement cases.
As a policy measure, the requirement of the pre-institution mediation under Section 12A was designed to speed up dispute resolution and ease the burden on commercial courts by encouraging parties to explore settlement before resorting to litigation. The Novenco decision marks a watershed moment, recalibrating this policy from a practical perspective to ensure that procedural mediation requirements do not undermine or prejudice substantive rights in cases of continuing IP infringement.
The Court recognised that prelitigation mediation should be dispensed with for ongoing infringement across trademark, copyright, patent and design domains because each demand prompt injunctive relief. Trademark misuse erodes brand equity, dilutes market share and misleads consumers; copyright violations spread rapidly online, stripping creators of commercial control; and patent and design breaches deplete time-bound exclusivity, undermine innovation, and erode competitive advantage, resulting in loss of market exclusivity.
More fundamentally, this decision reaffirms a core principle of IP enforcement – that procedural technicities should not sabotage the genuine need of injunctive relief in IP enforcement cases. By drawing a clear line between procedural form and substantive justice, the Supreme Court has ensured that rights-holders are not left remediless while infringing conduct continues.
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