Mumbai, August 23, 2026: The Bombay High Court has held that a commercial suit cannot be rejected merely because the plaintiff housing society did not undergo mandatory pre-litigation mediation, if the suit genuinely contemplates urgent interim relief. The court said the urgency has to be examined from the plaintiff’s standpoint and in the context of the nature of the dispute and reliefs sought.
Justice Sandeep Marne, on August 21, rejected an interim application filed by Oberoi Realty Ltd seeking dismissal of a suit filed by Exquisite Co-operative Housing Society Ltd in Goregaon East and three flat purchasers.
The developer had argued that the society had failed to comply with Section 12A of the Commercial Courts Act, which requires pre-litigation mediation before filing a commercial suit unless urgent interim relief is contemplated.
Dispute Over Development Rights
The dispute concerns the society’s claimed rights in the larger layout of the Exquisite residential project. The society claims a 25.33% undivided share in the land and corresponding rights in FSI and TDR.
It has alleged that further construction by the developer could consume its share of the land and FSI. The society has also sought conveyance of its share and, alternatively, compensation of Rs 500 crore.
Oberoi Realty argued that the plea of urgency was only a “disguise” to avoid the statutory mediation requirement. Its counsel pointed out that the suit was filed in March 2023, while the interim relief application was not moved for around two-and-a-half years. The developer contended that there was therefore no genuine urgency.
The society, however, argued that construction was continuing and that its FSI was being used. Its counsel submitted that the plaint and interim application clearly showed the need to protect the society’s rights and that the cause of action was continuing.
Court Examines Urgency
Justice Marne observed that the court must examine the plaint and accompanying documents “holistically” while deciding whether urgent interim relief was genuinely contemplated. He said a prayer for interim relief cannot be treated as a “camouflage” merely because the relief may ultimately not be granted.
The judge also held that post-filing conduct cannot be used to determine whether urgency existed when the suit was instituted. He noted that the developer was continuing construction and therefore the need for interim protection continued.
“Mere delay in seeking interim relief cannot be a ground for presuming that the Suit does not contemplate any real urgency,” the court said.
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Section 12A Application Rejected
The court ultimately held that the suit “clearly contemplates urgent interim relief” and that the prayers were not inserted merely to bypass Section 12A. It rejected Oberoi Realty’s application with costs.
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