In a key judgment for intellectual property (IP) disputes, the Supreme Court of India has clarified that a delay in filing a lawsuit does not automatically erase the urgency in cases of continuing infringement. The Court restored Danish firm Novenco Building and Industry A/S’s patent suit against Xero Energy Engineering Solutions Pvt. Ltd., which had earlier been rejected by the Himachal Pradesh High Court for not complying with the mediation requirement under Section 12A of the Commercial Courts Act, 2015.
Background
Novenco, known for its high-efficiency industrial fans under the “ZerAx” brand, had entered a dealership agreement with Xero Energy in 2017. The company later discovered that Xero’s director had set up another firm - Aeronaut Fans Industry Pvt. Ltd. - manufacturing nearly identical fans under deceptively similar names.
After failed cease-and-desist notices and a technical inspection confirming infringement, Novenco filed a commercial suit in June 2024, seeking an injunction against further sales. Alongside the plaint, it filed a request to skip the pre-institution mediation process, arguing that the situation demanded urgent interim relief.
However, both the Single Judge and Division Bench of the High Court dismissed the suit, reasoning that the six-month delay between inspection and filing negated any “urgency” required to bypass mediation.
Court’s Observations
A Bench of Justices Sanjay Kumar and Alok Aradhe took a different view. The Court observed that in cases of continuing infringement of patents or designs, the harm is not tied to when the infringement was first discovered but persists with each act of violation.
“Urgency,” the bench said, “lies not in the age of the cause but in the persistence of the peril.”
The judges noted that Novenco’s intellectual property continued to face damage with every sale of the copied product, and thus the urgency was “inherent in the nature of the wrong.” They added that public interest was also at stake, as imitation “sows confusion among consumers” and “taints the marketplace.”
The Court further clarified that Section 12A was never meant to protect infringers behind procedural formalities. It reaffirmed that when genuine urgency exists - as in ongoing infringement - exemption from mediation is justified.
“The insistence on pre-institution mediation, in such cases, would render the plaintiff remediless,” the Court remarked.
Decision
Setting aside the Himachal Pradesh High Court’s orders dated August 28 and November 13, 2024, the Supreme Court restored Novenco’s suit for hearing on merits.
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The judgment held that:
- Urgency in IP infringement cases must be judged in light of ongoing harm and public interest.
- Mere delay in filing does not negate urgency if the infringement continues.
Concluding the matter, the Court allowed the appeal, reinstating Novenco’s right to pursue its claim before the High Court.
“When imitation masquerades as innovation, courts cannot look away,” the bench underscored as it brought clarity to how urgency under Section 12A should be assessed.
Case: Novenco Building and Industry A/S vs. Xero Energy Engineering Solutions Pvt. Ltd. & Anr.
Citation: 2025 INSC 1256 (decided on October 27, 2025)
