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IP Suits and Mediation Mandate: Lessons from ITC v. SMM Tobacco

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  A plaintiff who, on first learning of infringement, chooses the criminal route and keeps its civil remedy in abeyance cannot later invoke the "continuing infringement" logic of Novenco to bypass mandatory pre-institution mediation. That is the core holding of the Calcutta High Court (IP Rights Division, Original Side) in ITC Limited v. SMM Tobacco Private Limited & Ors., IP (COM) No. 10 of 2026 , decided by Justice Arindam Mukherjee on 8 September 2026 (neutral citation 2026:CHC-OS:388). The ruling matters because, since Novenco , many IP plaintiffs have treated Section 12A of the Commercial Courts Act, 2015 as almost automatically dispensable. The Court pushes back: Novenco does not mean every IP suit is urgent by default, and reading it that way would render Section 12A otiose for IP disputes. Background facts ITC learned of the counterfeiting in July 2026, went to the police, and filed a civil suit only after the raid. The plaint was lodged in the Central Fil...
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Counter-claims and Section 12A: A Critical Study of Vijay v. Havells India Ltd.

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  A counter-claim in a pending commercial suit is a "suit" for Section 12A of the Commercial Courts Act, 2015, and ordinarily needs its own pre-institution mediation. The requirement is treated as satisfied only where the counter-claimed disputes had already formed part of, or were capable of being meaningfully addressed in, an earlier Section 12A mediation between the parties (in a non-settlement case, ordinarily because the defendant had disclosed them there). In Vijay v. Havells India Ltd. (FAO(COMM) 46/2025, decided 01.07.2026 — 2026:DHC:5196-DB) , a Division Bench of the Delhi High Court dismissed an appeal against the rejection of a counter-claim under Order VII Rule 11 CPC. The plaintiff had itself skipped mediation by invoking the urgent-interim-relief exception. The defendant's counter-claim, filed without mediation, was nonetheless thrown out. The Bench rejected both extremes argued before it: •        Rejected: that a counter-claim is...
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