Calcutta High Court Refuses ITC Exemption From Pre-Litigation Mediation In Counterfeit Cigarette Case
The Calcutta High Court has dismissed ITC Limited's appeal against a Single Judge's refusal to exempt its trademark and copyright suit from pre-litigation mediation under Section 12A of the Commercial Courts Act, 2015.
The court said that the plaint did not show the urgent interim relief needed to bypass mediation.
A Division Bench of Justice Tapabrata Chakraborty and Justice Partha Pratim Roy passed the order on October 12, 2026, in an appeal against the September 8, 2026 judgment wherein the Single Judge had held that the plaint contemplated no urgent interim relief, declined exemption and directed return of the plaint.
ITC had sued SMM Tobacco Private Limited, a Bihar-based cigarette and tobacco manufacturer, along with three others and an unknown individual suspected of collusion. The suit, filed on August 27, 2026, alleged trademark infringement, copyright infringement and passing off, and sought a perpetual injunction. A later application sought appointment of a Receiver.
ITC argued that credible intelligence of counterfeiting and illicit manufacturing was received around July 2026. ITC lodged an FIR, and search and seizure operations on July 22, 2026 recovered illicit goods from various locations.
Approaching the police first, ITC said, does not disentitle it from suing without mediation, as police action does not diminish the need for urgent interim relief from the civil court.
The Court framed the issue as whether the suit “truly insists upon an urgent interim relief to justify the dispensation of Section 12A.”
It explained that the plaint, documents and facts must show the need for dispensation, and that this is the precise and limited exercise a Commercial Court must undertake.
The Court stressed that the provision is not satisfied by interim relief alone. “Not merely interim relief but only an 'urgent interim relief' qualifies a suit to wriggle out of the rigours of Section 12A,” it said.
The question is whether “the apprehended wrong or injury is imminent and that exhausting the remedy of pre litigation mediation without any intervention in the meantime can lead to an irreversible situation.”
The Bench agreed with the Single Judge that even if delay is not fatal, a plaintiff cannot demand dispensation from Section 12A whenever it approaches the Court.
It noted that ITC had not explained the delay in filing. On the plea of a continuing wrong in the plaint, it observed that “seeking leave under Section 12A and establishing a 'continuing cause of action' stand on different footings and serve distinct purposes and carry distinct legal consequences.”
It further noted that ITC gave no explanation for not suing when the right first accrued. Immediately on learning of the illicit activity, ITC approached the police but chose not to bring a civil action for infringement and passing off though criminal and civil action are maintainable at the same time.
In that context, the Single Judge had held Novenco inapplicable on the facts, a view the Bench did not disturb.
Finding no infirmity in the impugned order, the Bench held that the Single Judge had dealt with the factual issues and arrived at specific findings that did not call for interference.
The appeal and the connected applications were dismissed.
For ITC: Senior Advocates Joydeep Gupta, Ranjan Bachawat and Rudraman Bhattacharyya with Advocates Paritosh Sinha, K. K. Pandey, Kunal Chatterji, Surita Majumdar, Sarathi Dasgupta, Naman Chowdhury, Manosij Mukherjee, Aayush Sinha, Teesham Das, Bhavesh Garodia and Mallika Bothra