Continuous Infringement Is a Continuing Wrong: Supreme Court’s Landmark on Urgency & Mediation

Novenco Building & Industry A/S v. Xero Energy Engineering Solutions Pvt. Ltd. & Anr.

Neutral Citation: 2025 INSC 1256 II Date of Judgment: 27 October 2025 II Coram: Hon’ble Mr. Justice Sanjay Kumar & Hon’ble Mr. Justice Alok Aradhe

Headnote

Mere delay in filing a suit for continuing infringement of intellectual property does not negate “urgency” under Section 12A of the Commercial Courts Act. Continuous violation constitutes a recurring cause of action, warranting exemption from pre-institution mediation.

Ratio

• Section 12A pre-institution mediation is mandatory unless the suit genuinely contemplates urgent interim relief.
• Urgency must be seen from the standpoint of the plaintiff and the nature of the wrong, not the lapse of time.
• Continuing infringement of intellectual property inherently implies urgency.
• Public interest in preventing deception and consumer confusion strengthens the claim of urgency.
• Procedural formalities under Section 12A cannot shield continuing infringers.
  

Factual Matrix

Novenco, a Danish manufacturer of patented industrial fans (“Novenco ZerAx”), discovered that its Indian distributor — Xero Energy Engineering — had violated its dealership agreement by forming another company, Aeronaut Fans, manufacturing identical fans. Despite notices and termination, infringement continued. Novenco filed a commercial suit seeking an injunction, along with exemption from pre-institution mediation under Section 12A of the Commercial Courts Act. The Himachal Pradesh High Court rejected the plaint, holding that the six-month delay between discovery and suit filing negated urgency. On appeal, the Supreme Court examined whether such delay nullifies the element of “urgent interim relief.”

Verdict

The Supreme Court set aside the High Court’s orders, restoring the plaint. It held that:

In IP disputes alleging continuing infringement, urgency flows from the recurring nature of injury, not from the time elapsed.
Courts must evaluate “urgency” from the plaintiff’s perspective and the facts on record — not by assessing the merits of the interim relief.
Compulsory mediation cannot override the need to protect ongoing violation of rights and public interest in preventing market deception.

Impact Analysis on Commercial Jurisprudence

• It reinforces that intellectual property infringement is a continuing wrong, justifying immediate judicial protection.
• It prevents misuse of Section 12A by defendants seeking to stall injunctions under the guise of procedural compliance.
• The Court’s emphasis on “public interest” and consumer protection elevates IP disputes beyond private contractual domains.
• It aligns Indian jurisprudence with global standards ensuring that justice is not lost to procedural rigidity.

Judgments Relied Upon

• Patil Automation Pvt. Ltd. v. Rakheja Engineers Pvt. Ltd., (2022) 10 SCC 1
• Midas Hygiene Industries Pvt. Ltd. & Anr. v. Sudhir Bhatia & Ors., (2004) 3 SCC 90
• Yamini Manohar v. T.K.D. Keerthi, (2024) 5 SCC 815
• Dhanbad Fuels Pvt. Ltd. v. Union of India, (2025) SCC OnLine SC 1129

Author
Abhijit Banerjee — Advocate-on-Record & Arguing Counsel, Supreme Court of India

Disclaimer
This blog is intended purely for academic discussion. It is not an interpretation of the judgment and is meant to facilitate quick understanding of its legal significance.

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