TMI Blog2003 (1) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties pending in the English Court, the forum of their choice. It involves examination of the principles governing grant of an anti-suit injunction by a court of natural jurisdiction against a party to a suit before it restraining him from instituting and/or prosecuting the suit, between the same parties, if instituted, in a foreign court of choice of the parties. It will be appropriate to note, in brief, the factual background in which the aforesaid question has arisen. The International Cricket Conference (ICC) organised a tournament 'ICC Knockout Tournament' (referred to as, 'the Event') in Kenya between October 3 and 15, 2000. The respondent had the exclusive right to grant commercial rights relating to the Event. On September 21,2000, an agreement was entered into between the second appellant and the respondent granting exclusive licence to telecast the Event on Doordarshan and to sell advertisement slots thereon. The second appellant assigned its right under the said agreement to the first appellant on September 22, 2000. The agreement, inter alia, provided that the licence granted thereunder was restricted to exhibiting the Feed by terrestrial free to air ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nimum guaranteed amount. Anyhow, on May 9, 2001, the appellants filed a suit in the Bombay High Court claming, inter alia, damages for the loss of advertising revenue due to alleged illegal threats of the respondent. On November 22, 2001, the respondent also filed an action in the High Court of Justice, Queen's Bench Division (referred to as, 'the English Court'), praying for a money decree for the minimum guaranteed amount and took out writ of summons, calling upon the appellants to notify the English Court of their intention to contest jurisdiction; it was also stated therein that failure to do so would amount to submitting to jurisdiction of the English Court and rendering them liable to a default judgment. The appellants entered appearance before the English Court on January 9, 2002 and sought time till January 31, 2002. Despite this move, on January 15, 2002, the appellants took out motion in the Bombay High Court praying for anti-suit injunction against the respondent in regard to the action in the English Court on the ground that the Indian Court was a natural forum for the adjudication of the dispute and that continuance of the proceedings in the English Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually bound to supply Feed for telecast only through Doordarshan, would thereafter jeopardise the appellants' advertising revenue by publicly threatening to discontinue the signal Feed to Doordarshan on the alleged ground of spill over of the Doordarshan signal beyond India. He vehemently contended that the natural and appropriate forum which had jurisdiction to grant anti-suit injunction were Indian Courts so the Division Bench erred in dismissing the motion. He argued that the English Court had no nexus whatsoever with the parties or the subject-matter and that the contractual stipulation for non- exclusive jurisdiction of the English Courts (without reference to English conflict of law rules) would not preclude the Indian2 Courts from granting anti-suit injunction. Mr.Iqbal Chagla, the learned senior counsel for the respondent, argued that the prima facie finding of the learned Single Judge in regard to the action of the respondent in the English Court being vexatious and oppressive would not bind the learned Judge himself at the stage of final hearing of motion much less would it bind the Division Bench in appeal. According to the learned counsel the suit was filed in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough directed against a person, in effect causes interference in the exercise of jurisdiction by another court. In regard to jurisdiction of courts under the Code of Civil Procedure (CPC) over a subject- matter one or more courts may have jurisdiction to deal with it having regard to the location of immovable property, place of residence or work of a defendant or place where cause of action has arisen. Where only one Court has jurisdiction it is said to have exclusive jurisdiction; where more courts than one have jurisdiction over a subject-matter, they are called courts of available or natural jurisdiction. The growing global commercial activities gave rise to the practice of the parties to a contract agreeing beforehand to approach for resolution of their disputes thereunder, to either any of the available courts of natural jurisdiction and thereby create an exclusive or non-exclusive jurisdiction in one of the available forums or to have the disputes resolved by a foreign court of their choice as a neutral forum according to the law applicable to that court. It is a well-settled principle that by agreement the parties cannot confer jurisdiction, where none exists, on a court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y contract the defendant has bound himself not to bring the proceedings which he threatens to bring or has brought in the foreign court, are different from the principles laid down in Rule 31(5) which deals with cases in general where an English Court may restrain a party over whom the court has personal jurisdiction from the institution or continuance of the proceedings in a foreign court. The test for issuance of the anti-suit injunction to a person amenable to the jurisdiction of the court in person has been varying; first it was 'equity and good conscience' as could be seen from the decision of the House of Lords in Carron Iron Company Vs. Maclaren (1855 5 HLC 416). The test later adopted was 'to avoid injustice' [See: Castanho Vs. Brown Root (U.K.) Ltd. Anr. (1981 Appeal Cases 557)]. The test adopted in the recent cases is whether the foreign proceedings are oppressive or vexatious SNI Aerospatiale's case (supra). Even about this test it is commented, In most decisions, the courts have considered whether the foreign proceedings were vexatious or oppressive. Historically, since the 19th century, these terms were used in the exercise of the court's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Natural Gas Commission vs. Western Company of North America [1987 (1) SCC 496], this Court considered the question of granting anti- suit injunction. The appellant, Oil and Natural Gas Commission, entered into a drilling contract with the respondent Western Company of USA. Pursuant to the contract the parties referred their disputes to arbitration, governed by the Indian Arbitration Act, 1940. A non-speaking award was made which was followed by supplementary award without affording any hearing to the parties. At the instance of the foreign company the awards were filed in the Bombay High Court. But thereafter the foreign company filed a plaint in the US District Court, New York, seeking an order confirming the awards and a judgment for payment of interest till the date of judgment and costs. The ONGC filed an application under the Indian Arbitration Act for setting aside the awards of the umpire in the Indian Court and further prayed for an interim anti-suit injunction restraining the foreign company from proceeding further with the plaint filed in the US Court. At the initial stage an interim injunction was granted by a learned Single Judge of the High Court but the same was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the owner and that as per the bills of lading the court at Cochin had no jurisdiction and only the English Courts had jurisdiction. The suit was dismissed by the trial court, so also the appeal of the appellant by the High Court. On further appeal to this Court, it was held that for purposes of jurisdiction the action of the first respondent was an action in personam in Private International Law and that such action might be decided upon the parties themselves. The chosen court may be a court in the country of one or both the parties, or it may be a neutral forum. The jurisdiction clause may provide for submission to the courts of a particular country or to a court identified by a formula. It is a question of interpretation, governed by the proper law of the contract, whether a jurisdiction clause is exclusive or non- exclusive, or whether the claim which is the subject-matter of the action falls within its terms. If there is no express choice of the proper law of the contract, the law of the country of the chosen court will usually, but not invariably, be the proper law. In SNI Aerospatiale's case (supra), the Privy Council laid down the principles to be applied by a Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viced and operated the helicopter. The appeal was thus allowed. Though, in that case also there was no jurisdiction agreement for resolution of disputes the discussion suggests that a suit in breach of an exclusive jurisdiction clause is in itself not conclusive of being 'vexatious and oppressive'. It will be useful to refer to the following observations of Lord Goff : In the opinion of their Lordships, in a case such as the present where a remedy for a particular wrong is available both in the English (or, as here, the Brunei) court and in a foreign court the English (or Brunei) court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that, as a general rule, the English or Brunei court must conclude that it provides the natural forum for the trial of the action, and further, since the court is concerned with the ends of justice that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So, as a general rule, the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the City Civil Court, Bangalore that the defendants were not entitled to proceed against them in any court of the world other than in Bangalore, India. Thereafter, they approached the English Court to enforce the judgment obtained from the Bangalore court and to obtain an injunction restraining the defendants, who were resident in England, from continuing their action in Texas on the grounds that the pursuit of that action would be contrary to justice and/or vexatious or oppressive. The learned Judge at the first instance dismissed the application but the Court of Appeal allowed the plaintiff's appeal and granted injunction prayed for. On appeal of the defendants, the House of Lords held that as a general rule, before an anti- suit injunction could be granted by an English Court to restrain a person from pursuing proceedings in a foreign jurisdiction, comity required that the English forum should have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court which such an injunction entailed. However, in cases where the conduct of the foreign state exercising jurisdiction was such as to deprive it of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een eminently foreseeable at the time of entering into the contract and that the contentions that there would be two sets of proceedings one in Texas and another in London and that there would be inconvenience for witnesses having regard to the location of documents, the timing of a trial and all such like matters to support stay of English action could not be permitted to be urged. In Donohue vs. Armco Inc and others [2002 (1) All.ER 749], there were three contracts for the sale of shares in the Armco insurance group of companies (for short, 'the A group') containing exclusive jurisdiction clauses providing that the parties irrevocably submit themselves to the exclusive jurisdiction of the English Courts to settle any dispute which might arise out of or in connection with the agreement. Disputes having arisen the 'A group' initiated proceedings in New York against D and others. D applied to the English Court for an anti-suit injunction preventing the 'A group' from bringing claims arising from the sale of the shares against D in any forum other than England. The learned Judge at the first instance declined to grant the injunction prayed for but the Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee in favour of SABAH which, inter alia, provided that the parties consented to the jurisdiction of the Courts of England for any action under the agreement to resolve any dispute between them and waived the defence of inconvenience of forum in any action or proceeding between them in the Courts of England. The GOP brought an action in the Court of Senior Judge, Islamabad and obtained an anti-suit injunction against SABAH. However, SABAH also brought an action in English Court and sought an anti-suit injunction which was granted restraining the GOP from continuing proceeding in the Court of Senior Judge, Islamabad. Against the order continuing the injunction, the GOP went in appeal before the Court of Appeal. Waller, L.J. with whom the other members of the Court of Appeal agreed in reaffirmation of the principles laid down in SNI Aerospatiale's case (supra), held that the learned judge in the first instance was right in construing that the clause in the agreement was a non-exclusive jurisdiction clause and that as GOP had agreed to submit any disputes between the parties to the jurisdiction of the English Court and to waive any objection that any action brought in England ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts and in the circumstances of each case; (4) a court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like; (5) where parties have agreed, under a non- exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti- suit injunction will be granted in regard to proceedings in such a forum conveniens and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct as in that case strong reasons were shown by the respondent. It was felt necessary that a single trial of all the claims of the parties by one forum would be appropriate and as all the parties to the New York proceedings were not parties to the agreement stipulating exclusive jurisdiction of the English Court and as all the claims before the New York court did not arise out of the said contract so they could not have been tried in the English Court. It was urged that in the circumstances parallel proceedings - one in England and another in New York - would have to go on which might result in inconsistent decisions. Those facts were considered as strong reasons to decline to grant anti-suit injunction though the parties had agreed to the exclusive jurisdiction of the English Court. In contrast in SABAH's case (supra) even though GOP filed the suit first in the court of natural jurisdiction and sought anti-suit injunction against SABAH restraining them from proceeding with the action brought by them in the English Court, the Court of Appeal found that non- exclusive jurisdiction clause in the agreement of guarantee executed by GOP was binding on them. The action of GOP in fili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he English Court in accordance with English law though the English Court has no nexus with the parties or the subject-matter and is not the natural forum. But then the jurisdiction clause indicates that the intention of the parties is to have the disputes resolved in accordance with the principles of English law by an English Court. Unless good and sufficient reasons are shown by the appellants, the intention of the parties as evidenced by their contract must be given effect to. Even when the appellants had filed the suit earlier in point of time in the court of natural forum and the respondent brought action in the English Court which is the agreed forum or forum of the choice having regard to the expressed intention of the parties, no good and sufficient reason is made out to grant anti-suit injunction to restrain the respondent from prosecuting the English action as such an order would clearly be in breach of agreement and the court will not, except when proceedings in foreign court of choice result in perpetuating injustice aid a party to commit breach of the agreement. To apply the principle in Donohue's case good and sufficient reasons (strong reasons) should be shown to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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