Supreme Court: Mere delay in institution of a suit by itself, does not negate urgency when the infringement is continuing

Recent interviews have thrown the purport of Section 12A of the Commercial Courts Act, 2015 as a subject of national discussions. It is not often that a solitary procedural provision is scrutinized to the extent that the Apex Court is repeatedly called upon to clarify its purport.

Brought into the Commercial Courts Act, by way of an amendment in 2018[1], Section 12A was introduced along with the Government’s emphasis on Mediation. With one eye on reducing the pendency of cases before the Courts and another on bringing about amicable resolution as opposed to traditional contested litigations, it was hoped that with the renewed emphasis on pre-suit mediations, the latter would facilitate the former.

The provision stipulates that before instituting a commercial suit where the Plaintiff does not seek “any urgent interim relief” must mandatorily exhaust ‘pre-institution mediation’. Such a mediation is time bound (3 months with extension upto 2 months). A settlement arrived at and signed by the parties and the mediator shall be accorded the same effect as an Arbitral Award on agreed terms.

On the previous occasions, the Supreme Court of India had clarified the scope and ambit of the provision, stating that the provision was ‘mandatory’ and would directly impact the sustainability of the suit[2] and that the Courts must holistically consider the prayer for urgent relief[3]. In Dhanbad[4] and RA perfumery[5] the Supreme Court and ___ reiterated that the prayer for ‘urgent relief’ must not be perfunctory.

In the case of in Novenco Building and Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd. & Anr. (2025 INSC 1256), the Supreme Court of India was again called upon to clarify the scope of “urgent interim relief”, however this time the question was posed particularly in the context of intellectual property (IP) infringement actions.

After condensing the legal tests based on the earlier determinations, the Court held that in cases of continuing infringement, urgency is inherent in the nature of the wrong, and mere delay in instituting proceedings cannot negate the right to seek urgent relief.

Journey upto the Supreme Court

Novenco had filed a commercial suit before the Himachal Pradesh High Court alleging patent and design infringement and sought an ad interim injunction. While the merits of the case are of not a particular concern to the scope of the present discussion, that Novenco had issued a Cease and Desist notice, two years prior to the institution of the suit is of some significance. It was noted that the suit had been instituted after six months from the discovery of the infringement, which led the High Court to conclude that the case did not “contemplate urgent interim relief”. This, consequently, led the Ld. Single Judge to reject the Plaint for want to compliance of Section 12A, which was in turn affirmed by the Division Bench of the High Court.

The Supreme Court, however, set aside the High Court’s findings and delved into the issue of whether a suit alleging continuing infringement of IP could contemplate urgent relief, if there was a delay in the institution of the suit.

The Supreme Court laid down key principles for assessing urgency in IP matters, highlighting urgency in the face of continued infringement would warrant urgent interim relief, sufficient to overcome the proscriptions of Section 12A. On another count, the Court cautioned that while the claim of urgency ought not to be merely pro forma, the Plaint and documents must sufficiently bear out the real and bona fide need for the same.

Interestingly, consistent with Midas (2024), the Court reiterated that delay alone was not sufficient to defeat the plea for urgent interim relief: “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.” The Court took special cognizance of the fact that IP infringement constitutes a recurring cause of action where each act of manufacture or sale is a fresh wrong. It was also noted that unlike private disputes, IP suits also factor public interest inasmuch as the proceedings are aimed at preventing consumer confusion and protecting the marketplace which imparts a color of immediacy to the relief sought.

The Novenco decision significantly strengthens the enforcement landscape for IP rights in India. By recognising the inherent urgency in cases of continuing infringement, the Court ensures that the balance between procedural efficiency and substantive justice is maintained. This is, not to say that a countermeasure does not exist at all. The judgment rather emphasizes that the urgency must not be superficial but must be mete out through an overall reading of the Plaint and the documents. While it still plays in support of the Plaintiff, the judgment offers caution to both sides who attempt to use or overcome Section 12A as merely a procedural ploy.

[1] The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts (Amendment) Act, 2018

[2] Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd. (2022) 10 SCC 1

[3] Yamini Manohar v. T.K.D. Keerthi (2024) 5 SCC 815

[4] Dhanbad Fuels (P) LTD. v. UOI ( 2025) SCC Online SC 1129

[5] Chandra Kishore Chaurasia v. R A Perfumery Works Private Ltd FAO (COMM) 128/2021