# MODI ENTERTAINMENT NETWORK AND ANR v. ~ W.S.G. CRICKET PTE. LTD

- **Citation:** [2003] 1 S.C.R. 480
- **Court:** Supreme Court of India
- **Decided:** 2003-01-21
- **Bench:** Syed Shah Mohammed Quadri, Arijit Pasayat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/modi-entertainment-network-and-anr-v-w-s-g-cricket-pte-ltd-18894
- **Pages:** 26

## Headnote

\
~
Anti-Suit Injunction-Grant of-Principles explained
f-,
c
Anti-Suit Injunction-Contract between· parties-Disputes-Suit for
damages in Indian Court-Other party filing action before English CourtCourt of natural jurisdiction granting anti-suit injunction against party to
suit-Restraining party from instituting and/or prosecuting suit between them
in foreign court of choice of parties-Division Bench vacating anti-suit
....
injunction-Justification of-Held: When parties have agreed to submit to
D non-exclusive jurisdiction of English Courts in accordance with English law,
intention of parties as expressed in contract to be given effect except when
strong reasons justifY disregard of contractual obligation-On facts no good
and sufficient reason made out to grant anti-suit injunction in disregard of
jurisdiction clause-Hence order of Division Bench justified
-).
E
Respondent had the exclusive right to grant commercial rights
relating to an international event. rt entered into a contract with second
appellant and granted exclusive licence to telecast the ICC Knockout
Tournament (the event) on Doordarshan and to sell advertisement slots
thereon. Second appellant assigned its right to the first appellant; The
F
contract contained a jurisdiction clause that the contract will be governed
by and be construed in accordance with the English law and to submit to
the non-exclusive jurisdiction of the English courts. Disputes arose between
•
the parties. Appellants filed a suit in Bombay High Court claiming
damages for the loss of advertising revenue due to alleged illegal threats
of the respondent. Respondent filed an accion in the English Court praying
G for a money decree for the minimum guaranteed ainount and taking out
writ of summons. Appellants entered appearance before the English Court
and subsequently took out motion in the Bombay High Court praying for
anti-suit injunction against the respondent to restrain it from proceeding
..+
with action brought by it in the English Court. Single Judge granted antiH
suit injunction against the respondent. Division Bench set aside the order
480
•
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKETPTE. LTD.
481
granting anti-suit injunction. Hence the present appeal.
A
Appellants contended that the Indian Court was a natural and
appropriate forum; that the Single Judge correctly recorded the finding
that the action initiated by the respondent in the English Court was
vexatious and oppressive; that the Division Bench dismissed the motion
erroneously taking the view that only if a party commenced litigation in B
a Foreign Court in breach of a contract stipulating that the Indian Courts
would have exclusive jurisdiction, could an anti-suit injunction be granted;
that the English Court is a forum non-convenience as the appellants have
to take all the witnesses to London which would cause great inconvenience
and economic loss and unless the Court grants injunction against the C
respondent, it would result in disastrous consequences to the appellants;
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 would not preclude the Indian Courts
from granting anti-suit injunction.
D
Respondent contended that the primafacie finding of the Single Judge
in regard to the action of the respondent in the English Court being
vexatious and oppressive would not bind the Judge himself at the stage of
final hearing of motion much less would it bind the Division Bench in
Appeal; that the parties had clearly stipulated in the contract for resolution
of their disputes in accordance with the English Law and in the English E
Court, therefore, the appropriate forum would be the English Court; that
it being the court of choice of the parties no injunction could be granted ·
against the respondent from prosecuting the case before that Court; that
the foreseeability test pleaded by the appellants was not relev

## Text

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A
MODI ENTERTAINMENT NETWORK AND ANR.
v.
~
..
W.S.G. CRICKET PTE. LTD.
JANUARY 21, 2003
B
[SYED SHAH MOHAMMED QUADRI AND ARIJIT PASAYAT, JJ.]
\
~
Anti-Suit Injunction-Grant of-Principles explained
f-,
c
Anti-Suit Injunction-Contract between· parties-Disputes-Suit for
damages in Indian Court-Other party filing action before English CourtCourt of natural jurisdiction granting anti-suit injunction against party to
suit-Restraining party from instituting and/or prosecuting suit between them
in foreign court of choice of parties-Division Bench vacating anti-suit
....
injunction-Justification of-Held: When parties have agreed to submit to
D non-exclusive jurisdiction of English Courts in accordance with English law,
intention of parties as expressed in contract to be given effect except when
strong reasons justifY disregard of contractual obligation-On facts no good
and sufficient reason made out to grant anti-suit injunction in disregard of
jurisdiction clause-Hence order of Division Bench justified
-).
E
Respondent had the exclusive right to grant commercial rights
relating to an international event. rt entered into a contract with second
appellant and granted exclusive licence to telecast the ICC Knockout
Tournament (the event) on Doordarshan and to sell advertisement slots
thereon. Second appellant assigned its right to the first appellant; The
F
contract contained a jurisdiction clause that the contract will be governed
by and be construed in accordance with the English law and to submit to
the non-exclusive jurisdiction of the English courts. Disputes arose between
•
the parties. Appellants filed a suit in Bombay High Court claiming
damages for the loss of advertising revenue due to alleged illegal threats
of the respondent. Respondent filed an accion in the English Court praying
G for a money decree for the minimum guaranteed ainount and taking out
writ of summons. Appellants entered appearance before the English Court
and subsequently took out motion in the Bombay High Court praying for
anti-suit injunction against the respondent to restrain it from proceeding
..+
with action brought by it in the English Court. Single Judge granted antiH
suit injunction against the respondent. Division Bench set aside the order
480
•
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKETPTE. LTD.
481
granting anti-suit injunction. Hence the present appeal.
A
Appellants contended that the Indian Court was a natural and
appropriate forum; that the Single Judge correctly recorded the finding
that the action initiated by the respondent in the English Court was
vexatious and oppressive; that the Division Bench dismissed the motion
erroneously taking the view that only if a party commenced litigation in B
a Foreign Court in breach of a contract stipulating that the Indian Courts
would have exclusive jurisdiction, could an anti-suit injunction be granted;
that the English Court is a forum non-convenience as the appellants have
to take all the witnesses to London which would cause great inconvenience
and economic loss and unless the Court grants injunction against the C
respondent, it would result in disastrous consequences to the appellants;
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 would not preclude the Indian Courts
from granting anti-suit injunction.
D
Respondent contended that the primafacie finding of the Single Judge
in regard to the action of the respondent in the English Court being
vexatious and oppressive would not bind the Judge himself at the stage of
final hearing of motion much less would it bind the Division Bench in
Appeal; that the parties had clearly stipulated in the contract for resolution
of their disputes in accordance with the English Law and in the English E
Court, therefore, the appropriate forum would be the English Court; that
it being the court of choice of the parties no injunction could be granted ·
against the respondent from prosecuting the case before that Court; that
the foreseeability test pleaded by the appellants was not relevant; that the
parties had chosen neutral forum in preference to natural.forums-Indian F
Courts and Singapore Courts; that in any event when a party had
approached an agreed jurisdiction under a contract, whether exclusive or
non-exclusive, the other party could not be allowed to contend that the
suit so filed as vexatious and oppressive; and that only in extra-ordinary
and unforeseen circumstances which would justify a party to claim relief
from its bargain of non-exclusive jurisdiction clause that an anti-suit G
injunction could be claimed but certainly not on the ground of convenience
such as expenses and hardship of getting the witnesses to the agreed
neutral forum.
Dismissing the appeal, the Court
H
482
SUPREME COURT REPORTS
[2003] l S.C.R.
A
HELD 1.1. In exercising discretion to grant an anti-suit injunction
the court must be satisfied of the following aspects:-(a) the defendant
)t
against whom injunction is sought; is amenable to the personal jurisdiction
of the court; (b) if the injunction is declined the ends of justice will be·
defeated and injustice will be perpetuated; and (c) the principle of
comity-respect of the court in which the commencement or continuance
B of action/proceeding is sought to be restrained-must be borne in mind .
. [500-E, FJ
1.2. In a case where more forums than one are available, the Court
in exercise of its discretion to grant anti-suit injunction will examine as
C to which is the appropriate forum (forum conveniens) having regard to the
convenience of the parties and may grant anti-suit injunction in regard
to proceedings which are oppressive or vexatious or in a forum non'-
conveniens. (500-G, HJ
-r
1.3. Where jurisdiction of a court is invoked on the basis of
D jurisdiction clause in a contract, the recitals therein in regard to exclusive
or non-exclusive jurisdiction of the court of choice of the parties are not
determinative but are relevant factors and when a question arises as to
the nature of jurisdiction agreed to between the parties the court has to
decide the same on a true interpretation of the contract on facts and
circumstances of each case. [501-A-B)
E
1.4. 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 jurisdicti~n 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 i~ an exceptional. case for good
F and sufficient reasons, with a view to prevent injustice in Circumstances
such ·as whieh permit a contracting ~arty.· to be relieved of the burden of
the contract; or since the date of the confract the circumstances or
subsequent ev.ents have made it impossible for the party seeking injunction
. to prosecute the. case in the court. of choice. because the essence of the
G jurisdiction ofthe court does not exist or because or. a vis major or force
majeure and the like. [501-B-DJ
1.5 • Where parties have agreed, under a non-exclusive Jurisdiction
1- -
clause, to approach a neutral foreign (orum and be governed by the law
applicable to it for the resolution of their disput~s arising under the
H contract, ordinarily no anti'"'.suit injunction will be granted in regard to
•
MODi ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD.
483
proceedings in such a forum co'111eniens and favoured forum as it shall be A
presumed that .the parties have thought over their convenience and all
other relevant factors before submitting to. non-exclusive jurisdiciion of
the court of their choice which.cannot be treated just an alternative forum.
1501-E-FJ
1.6. A· party to the contract containing jurisdiction clause cannot B
normally be prevented from approaching the court of choice of the. parties
as it would amount to aiding breach of the·contract; yet when one Of the
parties to the jurisdiction clause·approaches th.e court of choice in which
exclusive or non-exclusive jurisdiction is created, the ·proceedings In that
court cannot per se be treated as vexatious or oppressive nor can the court ·c
be said to beforum non-co'11!eniens. (501-F-H(
I. 7. The burden of establishing that the forum of choice is a forum
non-conveniens or the proceedings therein are oppressive or vexatious
would be on the party so contending to aver and prove the same. (502-AJ
2.1. In the instant case, a plain reading of the jurisdktion clause
shows that the parties have agreed that their contract will be governed
D
by and be construed in accordance with English law and they have also
agreed to submit to the non-exclusive jurisdiction of English Courts·
(without reference to English conflict of law rules). Recitals in regard to
submission to exclusive or non-exclusive jurisdiction of a court of choice E
in an agreement are not .determinative. However, as both the parties
proceeded on the basis that they meant non-exclusive ju,risdiction of the ·
English Courts; the Court is relieved of the interpretation of jurisdiction
clause. Normally, the court will give effeCt to the intention of the parties
as expressed in the agreement entered into by them except when strong
reasons justify disregard of the contractual obligations of the parties.
F
1502-C-EJ
2.2. The Single Judge proceeded on the prima facie finding ihat the
proceedings in the English Courts would ·be oppressive and vexatious.
Those findings, recorded at the stage of passing an ad-in•erim order, would G
not bind the same Judge much less they would bind the appellate Court
or the parties thereto at subsequent stage of the same proceeding because
it cannot operate as issue estoppeL It cannot he laid down as a general
principle that once the parties have agreed to submit to the jurisdiction
of a foreign court, the proceeclings or the action brought either in the court
of natural jurisdiction or in the court of choice will per se he oppressive H
484
SUPREME COURT REPORTS
(2003) I S.C.R.
A or vexatious. It depends upon the facts of each case and the question
whether the proceedings in a Court are vexatious or oppressive has to be
decided on the basis of the material brought before the Court. Having
perused the plaints in both the suits and the contract that the proceeding
in the English Court for recovery of the minimum guaranteed amount
B under the contract cannot, at this stage, be said to be oppressive or
vexatious. (503-C-FJ
2.3. It is true that the courts would be inclined to grant anti-suit
injunction to prevent breach of contractual obligation to submit to the
exclusive or non-exclusive jurisdiction of the court of choice of the parties
C but that is not the only ground on which anti-suit injunction can be
granted. As is apparent the appellants brought the suit in the court of
natural jurisdiction for adjudication of the disputes arising under the
contract for which the parties have agreed to submit to the non-exclusive
jurisdiction of the English Court in accordance with English law though
the English court has no nexus with the parties or the subject matter and
D 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 English Court. Unless the appellants
show good and sufficient reasons, the intention of the parties as evidenced
by their contract must be given effect to. Even when the appellants had
E 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
F will not, except when proceedings in foreign court of choice result in
. perpetuating injustice aid a party to commit breach of the agreement.
(501-F-H; 504-A, BJ
2.4. The submission that the English Court is forum non-conveniens
in view of the alleged breach of the agreement by the respondent in the
G manner not foreseen, is far from being a good and sufficient reason to
ignore the jurisdic;tion clause. Even otherwise the fact that the parties had
agreed to resolve their disputes arising under the agreement, shows that
they bad foreseen possible breach of agreement by any of the parties and
provided for the resolution of the disputes which might arise therefrom.
H In the context; the for~eeability test would take in circumstances which
'>-
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD.
485
render approaching the forum of choice merging with other court and A
losing its identity or a vis major etc., which would make it impossible for
the party seeking anti-suit injunction, to prosecute the case before the
forum of choice. The foreseeability test cannot be extended to the manner
of breach of the contract so as to turn the forum of choice into forum nonconveniens. Circumstances such as comparison of litigation expenses in B
England and in India or the hardship and incurring of heavy expenditure
on taking the witnesses to the English Court, would be deemed to have
been foreseen by the parties when they agreed to submit to the jurisdiction
of the English Court in accordance with the principles of English law and
the said reasons cannot be valid grounds to interdict prosecution of the
action in the English Court of choice. (504-C-F(
C
2.5. The other submission that English Court has no connection with
either of the parties or the subject matter and it is not a court of natural
jurisdiction, can be taken note of when strong reasons are shown to
disregard the contractual obligation. It cannot be a good and sufficient
reason in itself to justify the court of natural jurisdiction to interdict action D
in a foreign court of choice of the parties. Therefore, there is no valid
reason to grant anti-suit injunction in favour of the appellants, in disregard
of jurisdiction clause, to restrain the respondent from prosecuting the case
in the foreign forum of the choice of the parties-the English Court.
(504-G, H; 505-A) E
Oil and Natural Gas Commission v. Wesiern Company of North America,
(1987) 1 SCC 496 and British Indian Steam Navigation Co. Ltd. v.
Shanmughavilas Company Industries & Ors., (1990) 3 SCC 481, referred to.
Spiliada Maritime Corporation v. Cansulex Ltd., (1986) 3 All. ER 842;
SN/ Aerospatiale v. Lee Kui Jak & Anr., (1987) 3 All. ER 510; Carron Iron
Company v. Maclaren, )1855) 5 HLC 416; Castanho v. Brown & Root (U.K.)
Ltd. & Anr., )1981) Appeal Cases 557; C.S.R. Ltd. v. Cigna Insurance
Australia Ltd., [1997) (189) C.L.R. 345; Airbus Industries GIE v. Patel &
Ors., (1998) 2 All ER 257; British Aerospace Pie v. Dee Howard Co., (1993)
F
1 LLR368; Donohue v. Armco Inc and Ors., (20021 l All ER 749 andSABAH G
Shipyard (Pakistan) Ltd. v. (/) Islamic Republic of Pakistan (2) Karachi
Electrics Supply Corporation Ltd., (2002) (2002) EWCA Civ 1643, referred
to.
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 422 of
H
2003.
486
SUPREME COURT REPORTS
(2003) I S.C.R.
A
From the Judgment and Order dated 1.4.2002 of the Mumbai High
Court iri:A.No: 287 of2002.
·
'
Ashok H. Desai and Aspi Chinoy, Mahesh Agarwal, C'. Dhond, Rishi
. Agrawala, Manll Krishnan: and E.C Agrawala- for the Appellant.
· B
·Iqbal Chagla, Anil Menon, Ravi Kadam, S. Uday Kumar Sagar,
!Vis. B.ina Madhavan, Prasanth P and Ms. Meena C.R. ofM/s. Lawyer's Knit
& Co. for the Respondent;
The Judgment of the C~urt was deiivered by
C .
SYED SHAH MQHAl\:fMED QUADRI, J. Leave is granted.
This appeaUs from the judgment and order dated April I, 2002 made
by a Division Bench of the High Court of Judicature at Bombay, in Appeal
. No. 287 of 2002; ~!lowing the appeal filed by the resp~ndent and setting
· aside_ the order of the learned' Single Judge granting anti-suit injuctions against
D the respondent on the motion ·of the appellants .
. '
.
.
.
- .
. The plaintiffs in Suit No'. 2422 of 2001 on the file of the High Court
. of Judicature at Bombay (ordinary original civii jurisdiction) are the appellants
and the- defe~dani therein' is the respondent in this appeal.
~
. The short point that arises for consideration is: whether the Division
Bench of the High Court erred in vacating the anti-suit injunction granted by
a learned Single Judge restraining the respondent from proceeding with the
action between the same parties pending in the English Court, the forum of
their choice. It involves examination of the prineiple governing grant of an
F
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)
G organised a tourriament '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 irito 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
.·
'
.
.
.
H right under the- said agreement to the first appellant on September 22, 2000.
·' .·
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD. [S.S.M. QUADRJ, J.l 487
The agreement, inter alia, provided that the licence granted thereunder was A
restricted to exhibiting the Feed by terrestrial free to air television on
Doordarshan only and the satellite broadcast licence for India was granted to
"ESPN-Star Sports" (for short, 'ESPN'); the appellants were to pay a minimum
guaranteed amount of USD 35 lakhs (Rs. 15 crores); if the revenue derived
by the appellants exceeded the aforementioned sum the parties would share B
the excess amount in the manner provided in the agreement. The Doordarshan
used the PAS-4 Satellite. to transmit the signal through its terrestrial
transmitters. Soon after the commencement of the telecast the respondent
registered a complaiiit with the Doordarshan that the signal was being received
in the Middle East which would amount to breach of contract between the
parties and violation of the licence granted to Middle East licensee, called C
upon the appellants to rectify the same and threatened that the Feed to the
Doordarshan would be discontinued. The response of the Doordarshan that
·)'
it was nothing but a natural spill .over and that under the agreement such spill
over of other satellite signals would not constitute a breach, was communicated
to the respondent. However, the respondent was not satisfied with that
explanation and kept on repeating the threat that if the Doordarshan did not . D
switch from the PAS-4 satellite to the INSAT satellite it would discontinue
the signal Feed to Doordarshan. It appears that during the period of the
telecast nothing was done by the respondent pursuant to the threats. Even so,
the appellants complained that on account of the open threats of the respondent
the advertisers who had committed their advertisements on Doordarshan, E
pulled their advertisements out and switched them to ESPN and that caused
tremendous loss of revenue to them. It was also alleged that diversion of
advertisements from Doordarshan to ESPN enabled the respondent to benefit
from the revenue sharing arrangement it has with ESPN. To resolve the
disputes generated by cross allegations made by the parties against each other
some negotiations were held and pursuant thereto the appellants paid, from F
time to time between December 2000 and February 200 I, a sum of USD
7,13,714 to the respondent. They also addressed letters to the respondent
seeking time till May 200 I to make payment of the balance amount.
While the matter stood thus, the appellants received a notice dated May G
3, 2001 from the solicitors of the respondent demanding full minimum
guaranteed amount. Anyhow, on May 9, 2001, the appellants filed a suit in
the Bombay High Court claiming, inter a/ia, 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 H
488
SUPREME COURT REPORTS
[2003] I S.C.R.
A 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.
B 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 natur~I forum for the adjudication of the dispute and that continuance
of the proceedings in the English Court would, on the facts of the case, be
C vexatious and oppressive. The respondent contested the motion relying on
the non-exclusive jurisdiction clause in the contract.
After hearing both the parties, a learned Single Judge of the Bombay
High Court granted an ad-interim injunction on January 30, 2002, in terms
of clause (a) and o.rdered notice of motion. returnable within six weeks.
D Aggrieved by the said order of the learned Single Judge, the respondent filed
an appeal before the High Court. With the consent of the parties the Division
Bench of the High Court which heard the appeal, disposed of the notice of
motion itself finally along with the appeal by order dated April 1, 2002. The
Division Bench set aside the order of the learned Single Judge, dismissed the
E motion of the appellants and thus allowed the appeal. It is against that judgment
and order of the Division Bench of the High Court that this appeal is directed.
F
Mr. Ashok H. Desai, learned senior co.unsel appearing for the appellants,
contended that the Indian Court was a natural and appropriate forum; the
principle for granting anti-suit injunction was correctly noticed by the learned
Single Judge who recorded the finding that the action initiated by the
respondent in the English Court was vexatious and oppressive; the Division
Bench without disturbing the s·aid finding dismissed the motion erroneously
taking. the vfow that only if a party commenced litigation in a Foreign Court
in breach of a contract stipulating that the Indian Courts would have exclusive
juris~iction, could an anit-suit injunction be granted. He subinitted that reliance
on Rule 32(4) of Dicey & Morris 'The Conflict of Laws' by the Division
Bench was misconceived and that the correct rule applicable was Rule 31(5)
which referred to the decision of the House of Lords in the case of Spiliada
· Maritime Corporation v. Cansulex Ltd., [1986] 3 All. ER 842 and of the
. Privy Council in SN!Aerospatiale v. Lee Kui Jak & Anr., [1987] 3 All.ER.
H 510. In his submission the English Court is a forum non-conveniens as the
(_
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKETPTE. LTD. [S.S.M. QUADRI, J.]489
appellattts have to take all the witnesses to London which would cause great A
inconvenience and economic loss and unless the court grants injunction against
the respondent, it would result in disastrous consequences to the appellants.
He further contended that the appellants could not have foreseen that the
respondent who was contractually bound to supply Feed for telecast only
through Doordarshan, would thereafter jeopardise the appellants' advertising B
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 C
contractual stipulation for non-exclusive jurisdiction of the English 'courts
(without reference to English conflict of law rules) would not preclude the
Indian 2 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 D
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 India to foreclose the right of the
parties to approach the court of their choice, namely, the English Court. He E
pointed out that the parties had clearly stipulated in the contract for resolution
of their disputes in accordance with the English Law and in the English
Court, therefore, the appropriate forum would be the English Court. In any
event, it being the court of choice of the parties no injunction could be
granted against the respondent from prosecuting the case before that Court.
It was submitted that the respondent continued the Feed during the stipulated F
period; the appellants had the advantage of telecasting the Event and receiving
the benefit of the advertisement slots fully; they made payments till the end
of February; and, therefore, they could not be allowed to evade the liability
under the contract by seeking injunction. It was also submitted that the
foreseeability test pleaded by the appellants was not relevant; the parties had G
chosen neutral forum in preference to natural forums-Indian Courts and
Singapore Courts. In any event, submitted the learned counsel, when a party
had approached an agreed jurisdiction under a contract, whether exclusive or
non-exclusive, the other party could not be allowed to contend that the suit
so filed was vexatious and oppressive; only in extra-ordinary and unforeseen
circumstances which would justify a party to claim relief from its bargain of H
490
SUPREME COURT REPORTS
[2003) I S.C.R.
A non-exclusive jurisdiction clause that an anti-suit injunction could be claimed
but certainly not on the ground of convenience such as expenses and hardship
),I,
of getting the witnesses to the agreed neutral forum.
The Courts in India like· the Courts in England are courts of both law
. and equity. The principle governing grant of injunction-an equitable relief-by
B a court will also govern grant of anti-suit injunction which is but a species
of injunction. When a court restrains a party to .a suit/proceeding before it
from instituting or prosecuting a case in anoth~r court including a foreign
'f-.
court, it is called anti-suit injunction. It is a common ground that tl;te Courts
in India have power to issue anti-suit injunctfon to a party over whom it has
C personal jurisdiction, in appropriate case. This is because courts of equity
exercise jurisdiction in personal. However, having regard to the rule of comity,
this power will be exercised sparingly because. such an injunction though
directed against a person, in effe~t causes interference in the exercise of
'f
jurisdiction by another court.
D
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 ofresidence
or work of a defendant or place where Ca\lSe 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 cailed
-¥
E 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
F 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 to which CPC applies, but this principle does not apply when the
parties agree to submit to the exclusive or non-exclusive jurisdiction of a
foreign court; indeed in such cases the English Courts do permit invoking
G their jurisdiction. Thus, it is clear that the parties to a contract may agree to
have their disputes resolved by a Foreign Court termed as a 'neutral court'
or 'court of choice' creating exclusive or non-exclusive jurisdiction in it.
We shall now refer to Rule 32(4) on which reliance is placed by the
High Court and Rule 31(5) on which le.amed counsel for the appellants relies .
. . H These Rules are formulated in the Conflict of Laws by Dicey and Morris;
,,
,.
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD. [S.S.M. QUADRI, J.] 49 J
(13th Edition) on the basis of judgments of the House of Lords and the Privy A
Council. It would, therefore, be useful to quote them here.
"31(5). An English Court may restrain a party over whom it has
personal jurisdiction from the institution or continuance of proceedings
in a foreign court, or the enforcement of foreign judgments, where it
is necessary in the interests of justice for it to do so ."
"32( 4). An English Court may restrain a party over whom it has.
personal jurisdiction from the institution or continuance of proceedings
in a foreign court in breach of a contract to refer disputes to an
English (or, semble, another foreign) court."
A careful perusal of these Rules makes it clear that clause (5) of Rule
3 I deals with a case not covered by a jurisdiction agreement whereas clause
(4) of Rule 32 deals with a case involving jurisdiction agreement. Indeed, the
learned authors themselves in para 12.123 state as follow;:
B
c
·"The general principles upon which an English Court may order a .· D
party who is subject to its personal jurisdiction not to institute, or to
discontinue, proceedings in a foreign court have been examined above
·[clause (5) of Rule 31]. But where the basis for the exercise of the
court's discretion is that the defendant has bound himself by contract
not to bring the proceedings which he threatens to bring, or has E
brought, in the foreign court, the principles which guide the exercise
of discretion of the court are distinct from those which were examined
under clause (5) of Ru[e 31."
Thus, it is clear that the principles governing the .exercise of discretion by the
court to grant anti-suit injunction against a person amenable to the jurisdiction F
where by 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 G
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 v. Maclaren, (1855) 5 HLC 416. The test
later adopted was 'to avoid injustice' [See: Casta11ho v. Brown & Root (U.K.)
Ltd & Anr., (1981) Appeal .cases 557. The test adopted in the recent cases H
492
SUPREME COURT REPORTS
[2003) I S.C.R.
A is whether the foreign proceedings are "oppressive or vexatious" SN/
B
c
D
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 jurisdiction
whether or not to grant anti-suit injunctions. But, in the context of
stay of proceedings on ground of another forum being the more
appropriate forum, these terms were effectively abolished by the House
of Lords in Macshannon v. Rockware Glass ltd., (1978) I All ER
625. This was because of the moral connotations attached to these
words and the difficulty for the defendant to prove that there was
something wrong in the character of the plaintiff. Although Lord
Goff explained, m SN/ Aerospatiale v. lee Kui Jak & Anr., (1987)
3 All. ER 510, that these words could have different meaning in
different contexts, he was inclined, in Airbus Industries GIE v. Patel
& Ors., (1998] 2 All ER 257, to agree, albeit obiter, with Judge
Sopinka in Amchem Products Inc v. Workers Compensation Board,
(1993] 102DLR4th 96, who preferred to use, simply, 'ends of justice'.
However, Lord Goff did not expressly abandon these words."*
These expressions are not clearly defined but in C.S.R. ltd. v. Cigna Insurance
Australia ltd, (1997) 189 C.L.R. 345, the High Court of Australia used them
E in the sense "only if there is nothing which can be gained by them over and
above what may be gained in local proceedings". The Supreme Court of
Canada adopted the test of the requirement of "the ends of justice". The
essence or the ultimate objective is to enquire how best the interests of justice
will be served; whether grant of anti-suit injunction is necessary in the interests
F of justice. However, in a case where a jurisdiction agreement exists it is not
necessary, in all cases, to show that foreign proceedings are vexatious,
.s...
oppressive or that the local court is a natural forum for the claim and there
is no obligation upon the claimant to seek relief from foreign court first. The
case on hand is a little different from the category which is subject of
formulation in Rule 32(4). Here the appellants who are parties to the contract
G containing a non-exclusive jurisdiction clause of English Court and resolution
of disputes in accordance with the principles of English law, are seeking antisuit injunction against the respondent to restrain it from proceeding with the
)..
action brought by it in English Court.
H
*Modern Admiralty Law by Aleka Mandaraka-Sheppard (First Edition at page 275) ..
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKETPTE. LTD. [S.S.M. QUADRI, l.J 493
Before endeavouring to discern the _principles applicable to the type of A
the case on hand, we may with advantage refer to the cases cited at the Bar.
In Oil and Natural Gas Commission v. Western Company of North
America, [I 987] I 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. B
Pursuant to the contract the parties referred their disputes to arbitration,
governed by the Indian Arbitration Act, I 940. 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 C
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 D
stage an interim injunction was granted by a learned Single Judge of the High
Court but the same was vacated after contest. From the said order an appeal
was taken to this Court. It was held by this Court that when it was necessary
or expedient to do so or when the ends of justice so required, the High Court
had undoubted jurisdiction to grant such an_ injunction and that it would be E
unfair to refuse the restraint order because the action in the foreign court
would be oppressive in the facts and circumstances of the case. It was pointed
out that although the Supreme Court would sparingly exercise its jurisdiction
to restrain a party from jlrcce~ing further with an action in a Foreign Court,
that case was one of those rare cases where the Court would be failing in its
duty if it hesitated to grant the order of injunction. It was observed that since F
under the contract the parties were governed by the Indian Arbitration Act,
and _as such the Indian Courts had exclusive jurisdiction to determine the
validity and enforceability of the awards, the American Court had no
jurisdiction in that behalf. The appellant invoked the jurisdiction of the New
York Court to pronounce on the same question which was required to be G
pronounced upon by the Indian Court and if the restraint order was not
granted serious prejudice would be occasioned and a party violating the very
arbitration clause on the basis of which the award had come into existence
would also secure an order enforcing the award from a foreign court. However,
it may be pointed out that in that case there was no stipulation agreeing to
non-exclusive jurisdiction in the Foreign Court.
H
/
494-"
SUPREME -COURT RiP()R~-$°
(2003) l S.C.R.
A·
In British Indian Steam Navigatio11 Co. Ltd: v. Siu;m;,,ugh~i/as .Cashew
lndustires & Ors., [1990) 3 SCC-48J,.th~_resp~~d.entpurchased froi:n East
Afric.a a specified quantity of raw cashewn~ts ~hich were·:shipped .in a vessel
.chartered by the appellant-conipany:.in~orporat~d in ·England. The bills of
lading incorporated a clause to the effect. that the contract evidenced ·by it
shall be governed by English law and disputes deter.mined in ~g.land or, at
B . the option of the carrier, "at the port 'of de~tiriation according· to English law
to the exclusion of the jurisdiction of th.e c,otirts of.ariy oth~r c~untry: There
· was short supply of cashewntits 'so· the. first respo~dent fil~d. :a .~uit in the
Court ·of Subordinate Judge, Cochin;. seeking ·damages. for the 'short supply.
The appellant defe~ded the suit on· th~ ground that it wasa me~e charterer of
C the vessel and 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
D parties themselves. The chosen court may be a court in the country of one
ot 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 ~oliE .· exclusive, or whether the claim which is the subject-matter of the action falls
within' its terms.