This case[1] has laid the foundation for anti-injunction suits in India. An anti-injunction suit is when a Court restrains a party to a suit/proceeding before it from prosecuting/ instituting a case in another court which might even be a foreign court. The main issue for consideration by the Supreme Court, in this case, was, whether the Division Bench of the High Court of Bombay erred in vacating the anti-injunction suit which restrained the respondents from initiating proceedings in the English Court, the forum chosen by the parties as the forum of choice.

In the present case, the respondent, WSG Cricket, had the exclusive telecasting and selling commercial rights of an ICC Tournament (“Event”) in Kenya. The second appellant and respondent entered into an agreement wherein the exclusive license was granted to the second appellant to telecast the Event on Doordarshan. Thereon, the second appellant assigned its rights to the first appellant under the agreement. Soon after the commencement of the telecast, respondent alleged breach of the agreement by the appellant and also threatened to discontinue the telecast given to Doordarshan. In a round of cross allegations, the appellants alleged that due to the open threats of the respondents, they had faced a tremendous loss of revenue as advertisers had pulled out. Subsequently, on 9 May 2001, appellants filed a suit in the Bombay High Court and then on 22 November 2001, respondents filed a suit in the English Court. The jurisdiction clause of the agreement provided that parties shall be governed by English law and they submitted to the non-exclusive jurisdiction of English Courts.

The single-judge bench of Bombay High Court granted the anti-injunction suit to the appellant, however, this was vacated by the Division Bench of the High Court. Hence, the appeal in the Supreme Court was preferred.

Exclusive jurisdiction is when only one Court has the jurisdiction to try a matter whereas if more than one court has the jurisdiction over a subject-matter, these courts are called courts of available or natural jurisdiction. Parties are allowed to agree beforehand regarding their dispute resolution avenues through a contract. Hence, parties can choose any of the available courts of natural jurisdiction or a foreign court of their choice as a neutral forum and have their disputes resolved as per the law applicable to that foreign court. The option to create exclusive or non-exclusion is also upon the discretion of the parties. Exclusive jurisdiction would be when parties do not have the option to approach any other forum other than the forum agreed upon in the contract, as otherwise it would result in a breach of contract. Whereas, non-exclusive jurisdiction would be when parties do have the option to take the dispute to forums other than the one agreed upon by contract but the particular jurisdiction that parties have submitted to will be the preferred forum and it cannot be treated just as an alternative forum. However, it is a settled principle of law that the parties cannot confer jurisdiction on a court that is under the ambit of the Civil Procedure Code, 1908 and lacks the jurisdiction. This principle does not apply when parties agree to submit to the jurisdiction of a foreign court, be it exclusive or non-exclusive.

The Court in this case also discussed jurisdiction in personam and the rule of comity. The jurisdiction in personam or personal jurisdiction is the court’s jurisdiction to determine the personal rights and liabilities of the party before it.[2] The Courts of Equity operate in personam and not in rem, i.e. they adjudicate upon rights/claims of specific people and not of the world at large. Therefore, a Court in India would have jurisdiction in personam over a resident of India and would have the power to issue an anti-injunction suit to this party. The Code of Civil Procedure provides for personal jurisdiction under Section 20, according to which the defendant would be amenable to the personal jurisdiction of an Indian Court if he actually and voluntarily resides or works within the territorial jurisdiction of the Court.[3] The courts can use various tests such as the test of residence and test of single economic identity to determine the personal jurisdiction.[4] The doctrine of comity dictates that a Court will recognize and give effect to judicial decrees and decisions of other jurisdictions unless it will offend its public policy.[5] Therefore, the rule or doctrine of comity reiterates the principle of res judicata. However, the principle of comity is wider than that of res judicata as it also extends to respecting ongoing proceedings of the same matter in other jurisdictions.

In the present case, the Supreme Court laid down certain principles which the Court has to satisfy while exercising discretion in granting an anti-injunction suit. Firstly, the defendant against whom the injunction is sought shall be under the personal jurisdiction of the Court. Secondly, it should be the case that justice is denied if the injunction is not granted and thirdly, the rule of comity shall be kept in mind. Moreover, in case multiple dispute resolution forums are available, the Court may grant anti-injunction in regard to proceedings which are oppressive or vexatious in nature or in regard to the forum which is not convenient or non-conveniens for the parties. The Court also has to be mindful of the fact that the jurisdiction clause in a contract has to be interpreted in light of the facts and circumstances of the case and a true interpretation of the contract is to be preferred. Further, wherein parties have chosen to submit to the exclusive jurisdiction of a foreign court, a court of natural jurisdiction will not grant an anti-injunction against the defendant except in exceptional cases for good and sufficient reasons. In case parties have submitted to the non-exclusive jurisdiction of a foreign court, no anti-injunction shall be granted against the defendant as it is assumed that parties have thought about their conveniences and other factors before stipulation of a contract. The party to a contract with jurisdiction clause cannot be restrained from approaching the forum of choice as this would lead to a breach of contract and proceedings in the court of choice cannot per se be treated as oppressive or vexatious nor can the forum be considered to be inconvenient. The burden to prove otherwise is on the party contesting the jurisdiction of choice.

The decision of the Apex Court, in this case, is well-thought and based on established principles of law. It notes that the parties submitted to the non-exclusive jurisdiction of the English Court under the contract even though the English Court does not have a relation or nexus with the parties and subject matter, and is also not a court of natural jurisdiction. However, the Court has to give effect to the intention of the parties which can be determined from the contract unless good and sufficient reasons are shown to prove otherwise.

The judgement has struck a balance between the principle of the jurisdiction in personam and the principle of comity. As even though the English Court does not exercise personal jurisdiction over the parties and it is the Indian and Singapore courts which do, the Supreme Court has taken into consideration the principle of comity. The principle of comity is not laid down by any statute unlike res judicata but it is a well-settled legal principle. Further, the Court has very logically given effect to the intention of the parties as per the contract as it would not be fair to the defendant if the appellant’s contention that the Court in England is inconvenient as it would entail huge travel and litigation cost is accepted. The holding that these reasons do not come under the foreseeability test as they could have been easily foreseeable at the time of entering the contact is in the realm of justice, fairness and good conscience. It is also a good judgement as the Supreme Court considered a plethora of precedents from various jurisdictions before arriving at the principles to be considered by Courts before granting an anti-injunction. Anti-injunction suits are important in the domain of private international law as it helps in reducing the multiplicity of suits and frivolous litigation and I believe that this case helps lay down the foundation for granting anti-injunction suits in India as the principles that emerged, in this case, have been reiterated in many subsequent cases on the subject matter.

[1] (2003) 4 SCC 341

[2] ‘In Personam Jurisdiction’ (US Legal, n.d.)  <https://civilprocedure.uslegal.com/jurisdiction/personal-jurisdiction/types-of-personal-jurisdiction/in-personam-jurisdiction/> accessed 25^th August 2019

[3] Civil Procedure Code 1908, s20.

[4] Union of India v Vodafone Group Plc Ltd [2018] SCC OnLine Del 8842

[5] John Kuhn Bleimaier, ‘The Doctrine of Comity in Private International Law’ [1979] 24 CATH LAW 327

ABOUT THE AUTHOR

Mehak Goel

Mehak Goel is a third-year student at Jindal Global Law School pursuing BBA LLB (Hons). She has an inclination towards criminal law and is currently exploring different fields of law trying to realise her interests. She loves playing Table Tennis and reading fiction in her spare time.