Summary
In the case of Novenco Building and Industry A/S vs Xero Energy Engineering Solutions Pvt. Ltd., the Supreme Court held that pre-litigation mediation under Section 12A of the Commercial Courts Act is not mandatory if a patent infringement suit demonstrates continuing harm and seeks urgent interim relief. The Court ruled that ongoing infringement itself may justify urgency, even if there is a time gap before the suit is filed.
Pre-Institution Mediation and IP Infringement Suit
Novenco, a Danish company manufacturing industrial fans under the brand Novenco ZerAx, entered into a dealership agreement with Xero Energy in India. Novenco alleged that Xero’s Director incorporated a new company, Aeronaut Fans, and began manufacturing and selling fans that copied Novenco’s patented and registered designs.
Novenco terminated the dealership and sent legal notices in 2022. A technical expert confirmed the infringement in December 2023. Novenco filed a patent infringement suit in June 2024, along with a request for interim injunction and an exemption from pre-institution mediation under Section 12A of the Commercial Courts Act, 2015.
The High Court rejected the suit for not complying with mandatory mediation. Novenco appealed to the Supreme Court.
Questions Before the Court
1. Is pre-institution mediation under Section 12A of the Commercial Courts Act mandatory in all commercial suits
2. Does a suit alleging continuing patent infringement and seeking interim relief qualify for exemption from pre-institution mediation
3. How should urgency be interpreted under Section 12A
Arguments Presented By the Parties
Novenco (Appellant)
– Claimed that urgent relief was necessary due to ongoing infringement and irreparable harm
– Argued that delay in filing did not negate the urgency because the harm was continuous
– Submitted that the suit included a genuine request for injunction and was not a tactic to avoid mediation
Xero Energy and Aeronaut Fans (Respondents)
– Argued that Novenco waited more than six months after discovering infringement, which showed lack of urgency
– Claimed that the plaintiff did not plead urgency in the plaint
– Asserted that mere inclusion of interim relief does not exempt a suit from mediation
Court’s Analysis of Pre-Litigation Mediation Requirement
The court observed that Section 12A makes pre-institution mediation mandatory unless the suit contemplates any urgent interim relief. This exemption is not automatic. It depends on whether the plaintiff’s claims genuinely show urgency.
Urgency Must Be Real and Evident
The court said that urgency must be assessed from the standpoint of the plaintiff and must arise from the nature of harm. The court should not decide the merits of the relief but only assess if the relief is genuinely urgent. The presence of delay does not automatically negate urgency if the harm continues.
Continuous Infringement is Ongoing Harm
The court stated that intellectual property infringement, when ongoing, creates fresh and recurring injury. Each act of copying or selling infringing goods constitutes a new violation. Therefore, even if the suit was filed months after discovery, the urgency remained because the infringement was continuing.
Public Interest and IP Protection
The court added that in IP cases, public interest is involved. Continuing infringement may mislead consumers and damage market integrity. This factor supports immediate judicial intervention without waiting for mediation.
Error in High Court’s Reasoning
The Supreme Court held that the High Court wrongly applied the urgency test by focusing on the delay rather than on the continuing nature of the infringement. The High Court failed to assess urgency from the plaintiff’s viewpoint and incorrectly rejected the suit.
Findings
– Pre-litigation mediation is not mandatory when the suit genuinely seeks urgent interim relief
– Ongoing patent or design infringement qualifies as a continuing harm, which can establish urgency
– The delay in filing suit does not defeat the claim of urgency if the infringement is still occurring
The Supreme Court set aside the rejection of the plaint by the High Court, and remanded the suit for hearing on merits.
Relevant Paras
From the standpoint of the appellant, each day of continuing infringement aggravates injury. Urgency lies in the persistence of the peril. Para 23
The appellant’s prayer for injunction cannot be characterised as mere camouflage to evade mediation. It is founded on continuing nature of infringement. Para 24 The High Court erred in construing the test for urgent relief. It proceeded on the premise that lapse of time negated the element of urgency. Para 25
Mere delay in institution of a suit by itself does not negate urgency when the infringement is continuing. Para 26(ii)
Case Citation
Novenco Building and Industry A/S vs Xero Energy Engineering Solutions Pvt. Ltd. and Anr., Civil Appeal No. ___ of 2025 (Arising out of SLP(C) No. 2753 of 2025), decided on 27 October 2025, Supreme Court of India Indian Kanoon Link: [http://indiankanoon.org/doc/74396063/](http://indiankanoon.org/doc/74396063/) (Visited on 7 November 2025)
Disclaimer
This case blog is based on the author’s understanding of the judgment. Understandings and opinions of others may differ. An AI application was used to generate parts of this case blog. Views are personal.
