By S&S Co. Advocates & Solicitors · Published 5 October 2026 · Informational content, not legal advice. See our disclaimer
The Basic Rule
Section 12A of the Commercial Courts Act, 2015 requires that a commercial suit cannot be instituted unless the plaintiff has first attempted pre-institution mediation, except where the suit contemplates urgent interim relief. The Supreme Court has confirmed that this requirement is mandatory, not merely directory, and that a suit filed in breach of it is, in principle, liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure for disclosing no valid cause of action properly before the court.
The Timing Question That Needed Clarifying
A mandatory rule is only fair to apply once the mechanism it requires is actually available and functioning. Pre-institution mediation under Section 12A depends on a functioning mediation infrastructure and procedural rules, which took time to become operational nationally after the provision was introduced. This raised a fairness problem for suits filed in the interim: should a commercial suit filed, say, in 2019 or 2020, without pre-institution mediation, now be thrown out purely because the mandatory rule was later clarified?
The Supreme Court addressed this by holding that the consequence of outright rejection for non-compliance applies only prospectively, to commercial suits instituted on or after 20 August 2022, the date by which the Court considered the relevant mediation infrastructure to have become sufficiently operational. For a commercial suit filed before that date without pre-institution mediation, the appropriate remedy is not rejection of the plaint, but for the court to keep the suit in abeyance and direct the parties to attempt mediation at that later stage.
What This Means in Practice
For a business or litigant with an older, pending commercial suit that skipped pre-institution mediation because it was filed before August 2022, the suit is not automatically at risk of dismissal on that ground; the correct course is for the mediation step to be undertaken belatedly, with the suit held in abeyance in the meantime. For anyone filing a commercial suit today, however, there is no such cushion: Section 12A compliance is mandatory, and the urgent-interim-relief exception is construed narrowly rather than as a convenient way to bypass mediation altogether. A party genuinely needing urgent interim protection, such as an injunction to prevent imminent harm, should be prepared to demonstrate that urgency clearly, since courts remain alert to claims of urgency asserted mainly to avoid the mediation step.
Practical Guidance Before Filing a Commercial Suit
A prospective commercial litigant should, as a first step, assess honestly whether the matter genuinely requires urgent interim relief or whether pre-institution mediation can and should be attempted first. Where mediation is required, initiating it promptly, and retaining clear records of the attempt and its outcome, protects the eventual suit against a threshold objection on this ground. Where urgency is genuinely present, the pleadings should clearly and specifically set out the basis for that urgency rather than treating it as a formality.
Frequently Asked Questions
Will my old commercial suit be dismissed for not having attempted Section 12A mediation?
If the suit was filed before 20 August 2022 without pre-institution mediation, the Supreme Court has held that courts should keep it in abeyance and direct mediation at that stage, rather than reject the plaint outright.
What happens if a commercial suit filed after August 2022 skipped pre-institution mediation?
Such a suit is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure for non-compliance with Section 12A, since the mediation requirement is treated as mandatory from that date onward.
Does seeking urgent interim relief excuse pre-institution mediation?
Yes, where the suit genuinely contemplates urgent interim relief, Section 12A does not require pre-institution mediation first, but courts construe this exception narrowly rather than as a routine way to bypass mediation.
Should I attempt mediation even if I think my case qualifies for the urgent-relief exception?
It is prudent to document clearly why urgent interim relief is genuinely necessary, since courts may scrutinise a claimed urgency that appears to be asserted mainly to avoid the mediation requirement.
References & Further Reading
This article references the following general legal position. It is educational content, not advice on any specific dispute.
- Commercial Courts Act, 2015, Section 12A, and Order VII Rule 11 of the Code of Civil Procedure, 1908.
- See our Legal News coverage of the Supreme Court's decision on this point, our general guide on pre-litigation mediation under Section 12A, and our Commercial Litigation practice area for further reading.