IN THE COURT OF DISTRICT JUDGE (COMMERCIAL),

PATIALA HOUSE COURTS, NEW DELHI

I.A. N.O _____ OF 2024
IN
COUNTER CLAIM NO. 19/2023

IN THE MATTER OF:

M/S PEAK TRADERS …PLAINTIFF
VERSUS
M/S SGDC INDIA PVT. LTD. & ORS. ...DEFENDANTS/
COUNTER-CLAIMANTS

INDEX
S. NO. PARTICULARS PAGE NO.
1. Application under Order XXIII Rule 1
and 3 read with Section 151 of the Code
of Civil Procedure, 1908 for withdrawal
of counterclaim along with an Affidavit.

Counter-Claimant
Filed Through:

Tanya Mittal/Anuraag Iyer

Advocates for the Counterclaimants
E-97, 1st Floor, Greater Kailash - 3
New Delhi – 110048
Date: __.02.2024 E: tanyamittal66@gmail.com
Place: New Delhi M: +91 9557535468
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL),
PATIALA HOUSE COURTS, NEW DELHI
I.A. N.O _____ OF 2024
IN
COUNTER CLAIM NO. 19/2023

IN THE MATTER OF:

M/S PEAK TRADERS …PLAINTIFF
VERSUS
M/S SGDC INDIA PVT. LTD. & ORS. ...DEFENDANTS/
COUNTER-CLAIMANTS

APPLICATION UNDER ORDER XXIII RULE 1 AND 3

READ WITH SECTION 151 OF THE CODE OF CIVIL
PROCEDURE, 1908 FOR WITHDRAWAL OF
COUNTERCLAIM

1. The present Application is being filed by the

Counterclaimant for withdrawal of the captioned
Counterclaim filed on ____ before this Hon’ble Court and to
seek liberty of this Hon’ble Court to allow the
Counterclaimant to institute a fresh suit for the subject
matter of the present suit.

2. The present Application is being filed because the captioned

Counterclaim may not be maintainable due to non-
compliance with requirements relating to pre-institution
mediation as envisaged under Section 12A of Commercial
Court Act, 2015.
3. Order XXIII of the Code of Civil Procedure, 1908 (“CPC”)
provides as quoted hereinbelow:
“(3) Where the Court is satisfied:
(a) that a suit must fail by reason of some formal
defect, or
(b) that there are sufficient grounds for allowing the
plaintiff to institute a fresh suit for the subject
matter of suit or part of a claim, It may, on such
terms as it thinks fit grant the plaintiff permission
to withdraw from such suit or such part of the
claim with liberty to institute a fresh suit in respect
of the subject-matter of such suit or such part of the
claim.”

4. In light of the aforesaid provision, the Counterclaimant

submits that the captioned counterclaim is under a technical
defect due to the inadvertent lack of compliance by the
Counterclaimant with the requirement stipulated under
Section 12-A of the Commercial Court Act, 2015. Further,
Order XXIII (b) of CPC allows for withdrawal followed by a
fresh institution of a suit, upon the permission of the court, if
the court is satisfied that there are sufficient grounds for the
same. Therefore, considering that the Counterclaimant has a
prima facie good case on merits which it shall be unable to
pursue in the present proceedings due to a technical default
as aforesaid stipulated, the Counterclaimant seeks liberty of
this Hon’ble Court to allow the Counterclaimant to withdraw
the captioned Counterclaim and file a fresh suit.
5. The Hon’ble Supreme Court of India, in the case of Patil
Automation (P) Ltd v. Rakheja Engineers (P) Ltd (2022)10
SCC 1, held that pre-institution mediation is mandatory for
filing suit in the case of a commercial filing.

6. In view of the aforesaid judgement, considering that it does

not specifically discuss the mandatory nature of Section 12-
A of the Commercial Court Act, 2015, for a Counterclaim,
the Counterclaimant, in bona fides, instituted the captioned
counterclaim without fulfilling the requirement envisaged
thereunder. Therefore, due to a lack of an explicit
requirement in the aforesaid judgment, the inter-related
issues arising in the Plaint and Counterclaim and in the
interest of time, the Counterclaimant, inadvertently, did not
attempt pre-institution mediation as stipulated under Section
12-A of the Commercial Court Act, 2015.

7. However, upon being apprised by this Hon’ble Court

regarding the mandatory requirement of the aforesaid and
the same being treated as a formal defect, the
Counterclaimant, now humbly wishes to withdraw the
captioned Counterclaim and institute a fresh suit.

8. Therefore, without prejudice and in light of the aforesaid, ,

the Counterclaimant, in the interest of time and justice, seeks
the leave and liberty of this Hon’ble Court to withdraw the
present Counterclaim and to file a fresh suit after complying
with the requirements of pre institution mediation as
 envisaged under Section 12A of Commercial Court Act,
2015 in accordance with law.

PRAYER

It is therefore most respectfully prayed that this Hon’ble Court

may most graciously be pleased to:

(a) Permit the Counterclaimant to withdraw the captioned

Counterclaim with liberty to institute a fresh suit;

(b) Pass a direction for refunding the court fees paid by the
Counterclaimant for the filing of captioned counterclaim;
and

(c) Pass any other order in the interest of justice.

FOR THIS ACT OF KINDNESS THE COUNTERCLAIMANT

AS IN DUTY BOUND SHALL EVER PRAY.
Counter-Claimant
Filed Through:

Tanya Mittal/Anuraag Iyer

Advocates for the Counterclaimants
E-97, 1st Floor, Greater Kailash - 3
New Delhi – 110048
Date: __.02.2024 E: tanyamittal66@gmail.com
Place: New Delhi M: +91 9557535468
IN THE COURT OF DISTRICT JUDGE (COMMERCIAL),
PATIALA HOUSE COURTS, NEW DELHI
I.A. N.O _____ OF 2024
IN
COUNTER CLAIM NO. 19/2023

IN THE MATTER OF:

M/S PEAK TRADERS …PLAINTIFF
VERSUS
M/S SGDC INDIA PVT. LTD. & ORS. ...DEFENDANTS/
COUNTER-CLAIMANTS

AFFIDAVIT
I, Sushil Kumar, S/o Late Shri Jagannath Pandey, aged 52 years,
working for gains at 404, Nirmal Tower, 26, Barakhamba Road,
New Delhi – 110001, being the authorized representative of
Defendant No. 1, do hereby solemnly affirm and declare on
behalf of Defendant No. 1, do hereby solemnly affirm and
declare as under:

1. That I am the authorized representative of the Defendant No.

1 and am well conversant with the facts and circumstances
of the present case and as such, am competent to swear the
present affidavit.

2. That the accompanying Application has been drafted by my

Counsel under my instructions and the contents thereof have
been read over and explained to me. I have understood the
contents of the accompanying Application and I affirm the
contents thereof.
3. That the statements made in paragraphs 01 to ____ of the
accompanying Application are true to my knowledge. The
legal submissions made in the accompanying Application
are based on the legal advice which I believe to be true and
correct. I state that nothing has been concealed from this
Hon’ble Court.

4. That the documents, if any, filed along with the Application

are true copies of their respective originals.

DEPONENT

VERIFICATION

Verified at New Delhi on this _____ day of February 2024 that

the contents of the present affidavit are true and correct to my
knowledge and nothing has been concealed therefrom.

DEPONENT