Anti-suit injunction
Querist :
Anonymous
(Querist) 09 January 2012
This query is : Resolved
under what conditions can an anti-suit injunction be granted?
Ravikant Soni
(Expert) 09 January 2012
Anti suit injunction is barred by sec 41 of Specific relief act.
Querist :
Anonymous
(Querist) 09 January 2012
but at the same time 41(a) states that it can be granted to prevent multiplicity of proceedings? i would be very grateful if you could please explain me what multiplicity of proceedings means.
N.K.Assumi
(Expert) 10 January 2012
Nature of Anti Suit Injunction can be found in the case given below decided by Sanjay KIshan Kaul.J.Delhi High Court.
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : DISPUTE REGARDING SUPPLY
CS (OS) No.1705 of 2002
Date of decision : 25.04.2007
M/S SWATI ALUMINIUM LTD & ORS ...PLAINTIFFS
Through: Mr.K.T.S.Tulsi, Sr. Adv with
Mr.Gaurav Bhargava, Advocate
- VERSUS -
M/S MULLINS STEERING GEARS & ORS ...DEFENDANTS
R.Ramachandran
(Expert) 10 January 2012
Dear Mr. Assumi,
The decision is not available in the websiteof Delhi HC.
Therefore please indicate the citation. In the alternative, if you have the decision, please paste the same for our benefit.
V R SHROFF
(Expert) 10 January 2012
Delhi High Court
Swati Aluminium Ltd. And Ors. vs Mullins Steering Gears And Ors. on 25 April, 2007
Equivalent citations: 2007 (2) CTLJ 51 Del
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. Plaintiff No. 1 is a public limited company engaged in business of supplying steering boxes. Plaintiff No. 2 is a director of plaintiff No. 1 and is stated to have represented plaintiff No. 1 in the negotiations with defendants for supply of such steering boxes. Plaintiff nos 3 & 4 are stated to the proprietor firms.
2. The aforesaid negotiations are stated to have done on or about 20.01.1999 which resulted in the plaintiff No. 2 receiving a memorandum from one Mr. Bill Mullins of defendant No. 1/Company regarding steering boxes and blue prints along with drawings and specifications for the steering boxes which the defendant No. 1 wanted to procure. The supply is stated to have started some time in July, 2000. The invoices expressly state declaration of exclusive jurisdiction of Delhi Courts. Plaintiff No. 1 is also agreed to have invested $ 60,000 vide its letter dated 16.07.2001 to get the tooling of Vega Boxes ready but subject to the condition of defendant No. 1 procuring at least 150 boxes per month for the next five years.
3. The dispute started between the parties on 24.04.2002 almost a year after supply on account of the allegation of defendant No. 1 that there were problems with the consignments received. Defendant No. 1 even initiated recall proceedings before the National Highway Traffic and Safety Administration categorizing the consignment as hazardous for use in USA. Thereafter the defendants on 09.08.2002 are stated to have approached the District Courts in Arizona for grant of injunction in favor of the said defendants against the plaintiffs to prevent the continued distribution of the product being supplied by the plaintiffs as also for damages.
4. The plaintiffs have thus filed the present suit in the nature of anti suit injunction in view of the exclusive jurisdiction conferred on the Delhi Courts by reason of agreement between the parties. Summons in the suit and notice in the application were issued by the Court but no interim injunction orders were granted in favor of the plaintiffs. This resulted in the plaintiffs filing an appeal before the Division Bench which granted such an interim order on 18.11.2002 and confirmed the same on 19.08.2003 in FAO (OS) No. 382/2002. Defendants herein did not put in appearance before the Division Bench. In the present suit also, the defendants have also not put in appearance and have been proceeded ex parte.
5. The plaintiffs have filed the affidavits of evidence of Mr. Vivek Lakhotia, plaintiff No. 2 who has proved the relevant resolutions authorizing institution of the suit on behalf of plaintiff nos 1, 3 and 4 as ExPW1/A, ExPW1/B & ExPW1/C respectively. The memorandum dated 20.01.1999 has been proved as ExPW1/D and the copy of the initial invoice dated 11.07.2000 has been proved as ExPW1/E. Another set of invoices has been proved as ExPW1/H. The affidavit affirms to what has been set out in the plaint and it is not necessary to get into greater detailed discussion in this behalf since the matter only relates to an anti suit injunction. The initial invoice dated 11.07.2000 and other invoices contained the following declaration:
We declare that this invoice shows the actual price of the goods described and that all particulars are true and correct. All dealings are subject to Delhi Jurisdiction.
6. A reading of the afore-declaration shows that the parties have agreed to confer exclusive jurisdiction on the Delhi Courts. It is trite to say that the parties are not precluded from conferring exclusive jurisdiction on any Court which would be one of the Courts having territorial jurisdiction to try and determine the suit. The bar comes into play only on conferring the jurisdiction on a Court which has no jurisdiction in respect of the subject matter. The exception to this is where parties agree to confer jurisdiction on a foreign court in a neutral territory.
7. Learned senior counsel for the plaintiff contends that the anti suit injunction prayed for in the present suit is liable to be granted by this Court in view of the Delhi Courts certainly being one of the Courts having jurisdiction, the plaintiffs being based and the goods being supplied from Delhi. Thus the Delhi Courts alone would have the jurisdiction in the matter.
8. Learned Counsel for the plaintiff has relied upon the judgment of the Modi Entertainment Network v. WSG Cricket Pte. Ltd. dealing with the ambit and scope of an anti suit injunction to restrain proceedings in a foreign court. It has been observed that Courts in India are both Courts of law and equity and the principles governing grant of injunction - an equitable relief - by a Court will also govern grant of anti suit injunction which is but a species of injunction. It has further been observed that Courts in India have power to issue anti suit injunction to a party over whom it has personal jurisdiction, in an appropriate case though the power ought to be exercised sparingly. The relevant principles have been extracted in Para 24 as under:
From the above discussion the following principles emerge:
1) In exercising discretion to grant an anti suit injunction the Court must be satisfied of the following aspects:
a) The defendant, 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 perpetrated; and
c) the principle of comity - respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained - must be borne in mind.
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 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.
3) Where jurisdiction of a court is invoked on the basis of 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 the 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 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 part 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 heir disputes arising under the contract, ordinarily no anti suit injunction will be granted in regard to proceedings in such a forum conveniens and favored forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to the non exclusive jurisdiction of the court of their choice which cannot be treated just as an alternative forum.
6) A party to the contract containing jurisdiction clause cannot 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 the court of choice in which exclusive or non exclusive jurisdiction is crated, the proceedings in that court cannot per se be treated as vexatious or oppressive nor can the court be said to be forum non conveniens.
7) The burden of establishing that the forum of choice is a forum non conveniens or the proceeding therein are oppressive or vexatious would be on the party so contending to aver and prove the same.
9. A perusal of the aforesaid principles shows that while examining the question of grant of anti suit injunction, the aspect of forum conveniens would have to be considered. However, where jurisdiction of a court is invoked on the basis of a jurisdiction clause in a contract, anti suit injunction would not normally be granted to restrain proceedings before said exclusive jurisdiction of a Court including of a foreign court.
10. In the present case, if this principle is applied then it would equally mean that if the courts in India have been granted exclusively jurisdiction in the matter, especially where the Court is at least one such court of a competent jurisdiction, then an anti suit injunction must necessarily follow. The exception to this would be where the other party is still able to establish that the forum of choice is not forum conveniens, the proceedings are oppressive and vexatious, but on the condition that the parties so contending would have to prove the same. This would have required in the present case the defendants to appear and establish such a plea. The defendants have, however, chosen to absent themselves.
11. In view of the aforesaid, a decree for permanent injunction is passed in favor of the plaintiffs and against the defendants restraining the defendants from initiating or continuing any legal proceedings against the plaintiffs in the courts of United Status of America in respect of the business transaction and goods delivered in pursuance to the invoices proved in the present suit.
12. Plaintiffs shall also be entitled to costs.
13. The decree sheet be drawn up accordingly.
prabhakar singh
(Expert) 10 January 2012
As you asked "multiplicity of proceedings means"condition of being manifold or various or a great repeated deal of the same thing time and again and that judicial system dislikes and discourages such situation by law and its procedure.
Deepak Nair
(Expert) 10 January 2012
Rightly advised by the experts.
Devajyoti Barman
(Expert) 10 January 2012
The Calcutta High Court has also given numerous decisions on this asepct whereby filing of suit was injuncted.
Querist :
Anonymous
(Querist) 10 January 2012
i would be very grateful if you please provide me with some citations
Querist :
Anonymous
(Querist) 10 January 2012
i would be very grateful if you please provide me with some citations
prabhakar singh
(Expert) 11 January 2012
An anti-suit injunction is an injunction directed towards a person restraining the person from commencing or proceeding with a suit before another Court. It is not an injunction directed towards any Court; it is directed to the party concerned. Thus, a British Court can grant an injunction against a party from filing a suit before an Indian Court. The power of Indian Courts, however, seems to be somewhat limited.
Section 41(b) of the Specific Relief Act, 1963, states:
An injunction cannot be granted… to restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought…
Thus, anti-suit injunctions can be granted only to restrain a person from approaching a .subordinate Court. Thus, the Bombay High Court can grant anti-suit injunctions only to prevent the parties from approaching subordinate Courts in Maharashtra. I wonder what the policy justification for this is. If Bombay is clearly the most appropriate forum for trying a particular suit, why should the Bombay High Court not be competent to restrain the plaintiff from filing a suit in the Delhi High Court? Issues of judicial propriety do not really arise – the injunction would not be directed towards the Delhi High Court as such.
More interestingly, it is arguable that the statute as it stands prohibits Indian Courts from issuing any anti-suit injunction in relation to proceedings before a foreign Court. For instance, the District Court of New York is not a Court “subordinate” to the Bombay High Court. No foreign Court will ever be ‘subordinate’ to an Indian Court. The bar in Section 41(b) would always apply in the case of a prayer for anti-suit injunction vis-à-vis a foreign Court. Foreign Courts can, however (according to their domestic laws) grant anti-suit injunctions vis-à-vis Indian Courts.
One way of getting around this would be to consider Section 41(b) as applying only to Indian Court. In other words, the term “proceeding in a court” could be read as “proceeding in an Indian court”.
