Urgency Lies Not in the Age of the Cause but in the Persistence of the Peril: Supreme Court Clarifies Section 12A of the Commercial Courts Act in IP Suits

“Public Interest Becomes the Moral Axis of Urgency” — Supreme Court of India in Novenco Building and Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd. & Anr., delivered a judgment that will echo across all commercial and intellectual property disputes. The Bench of Justices Alok Aradhe and Sanjay Kumar interpreted the scope of Section 12A of the Commercial Courts Act, 2015, holding that where the plaint “contemplates any urgent interim relief,” pre-institution mediation is not mandatory.

The Court ruled that In cases of ongoing infringement of intellectual property rights, the urgency must be gauged “not from the calendar but from the continuity of the harm.” The Bench observed that delay in approaching the court “does not sterilize the urgency where the infringement itself is continuing and corrosive.”

“When Imitation Masquerades as Innovation, It Diminishes Faith in Trade” — The Court Defends Market Integrity

Novenco, a Danish manufacturer of “Novenco ZerAx” high-efficiency fans, had appointed the respondent Xero Energy as its Indian distributor. The dispute arose when Xero’s director allegedly floated another company to manufacture and sell identical fans under a different name, thereby infringing Novenco’s patents and designs.

After technical inspection reports confirmed the copying, Novenco terminated the dealership and issued cease-and-desist notices. The plaintiff then filed a commercial suit in 2024 seeking injunctions and urgent reliefs but without undergoing pre-institution mediation under Section 12A. The Himachal Pradesh High Court dismissed the plaint, stating that the suit was not filed promptly and hence did not show urgency.

Setting aside that view, the Supreme Court held that “mere passage of time between discovery and filing of the suit cannot, by itself, dissolve the urgency that flows from a continuing wrong.” The judgment emphatically stated, “Urgency does not lie in the age of the cause but in the persistence of the peril.”

“Continuing Infringement Is a Continuing Cause of Action” — Delay Cannot Legalise a Wrong

Justice Alok Aradhe, writing for the Bench, clarified that every act of infringement in intellectual property law constitutes a fresh and continuing cause of action. The Court observed that “an infringer’s act, if left unchecked, renews injury with each sale, each representation, and each day of deception.”

Quoting its earlier decision in Midas Hygiene Industries v. Sudhir Bhatia, the Court reiterated that “delay does not defeat the right to injunction where the use is dishonest.” The Court underscored that an infringer cannot invoke procedural requirements as a shield to perpetuate a wrong, stating, “Insistence on mediation amidst an active infringement would mean forcing the aggrieved to negotiate while the injury bleeds unabated.”

“The Plaintiff’s Lens Defines Urgency, Not the Defendant’s Comfort” — Clarifying the Judicial Test

The judgment reconstructed the judicial understanding of “urgency” under Section 12A. Justice Aradhe observed, “Urgency must be viewed through the lens of the plaintiff — the party who perceives the peril, not the party who benefits from delay.”

The Court further declared that it is not for the court to assess whether interim relief will ultimately be granted; rather, it must examine whether the plaint and documents reveal “a plausible, not illusory, urgency.” The Bench warned against reducing the statutory exemption into a procedural snare, emphasizing that “the object of Section 12A is to promote mediation, not to paralyse legitimate recourse to justice.”

The Court described public Interest as the “moral axis” of urgency, remarking that “When imitation masquerades as innovation, the deception does not only wound the proprietor but also misleads the market — the public interest itself becomes the axis upon which urgency turns.”

“Courts Must Not Convert Section 12A Into a Straitjacket of Delay”

Holding that the High Court erred by equating delay with absence of urgency, the Supreme Court reminded that Section 12A was designed to balance mediation with immediacy. The Bench wrote, “Courts must not convert Section 12A into a straitjacket that throttles justice in the name of procedure.”

Restoring Novenco’s suit, the Court directed the Himachal Pradesh High Court to proceed on merits and to hear the plaintiff’s application for interim injunction expeditiously.

The ruling establishes two enduring propositions: first, that in intellectual property disputes alleging continuing infringement, urgency is presumed from the continuity of harm and from the public interest in preventing deception; second, that mere delay in approaching the court does not, by itself, dilute that urgency.

As Justice Aradhe summed up, “Urgency is not measured by the clock but by the consequence; it is not the number of days that matter, but the depth of the damage that persists.”

Date of Decision: October 27, 2025