Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd., (2003) 4 SCC 341 – Paragraph 10. The courts in India like the courts in England are courts of both law and equity. 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. When a court restrains a party to a suit/proceeding before it from instituting or prosecuting a case in another court including a foreign court, it is called anti-suit injunction. It is a common ground that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. This is because courts of equity exercise jurisdiction in personam. However, having regard to the rule of comity, this power will be exercised sparingly because such an injunction though directed against a person, in effect causes interference in the exercise of jurisdiction by another court.
13….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 Co. v. Maclaren (1855) 5 HLC 416. The test later adopted was “to avoid injustice” [see: Castanho v. Brown & Root (U.K.) Ltd.1981 AC 557. The test adopted in the recent cases is whether the foreign proceedings are “oppressive or vexatious” — SNI Aerospatiale case.(1987) 3 All ER 510
These expressions are not clearly defined but in C.S.R. Ltd. v. Cigna Insurance Australia Ltd.(1997) 189 CLR 345 the High Court of Australia used them 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 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, 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 the foreign court first.
45. In Laker Airways Limited v. Sabena, Belgian World Airlines, 1984 U.S. App. LEXIS 24811, the United States Court of Appeals for the District of Columbia Circuit, while dealing with the limits of Federal Court’s power to conserve its adjudicatory authority over a case filed with the court, instead of actively raising all defensive claims in the Federal court, the named defendants initiated suits in foreign tribunals for the sole purpose of terminating the federal court’s adjudication of the litigation. It is also found that the issue raised in two different courts represents a head-on collision between the diametrically opposed antitrust policies of the United States and United Kingdom. While analysing the said situation, it is held as follows: —
“It is well settled that English and American courts have power to control the conduct of persons subject to their jurisdiction to the extent of forbidding them from suing in foreign jurisdictions. However, the fundamental corollary to concurrent jurisdiction must ordinarily be respected: Parallel proceedings on the same in personam claim should ordinarily be allowed to proceed simultaneously, at least until a judgment is reached in one which can be pled as res judicata in the other. The mere filing of a suit in one forum does not cut off the preexisting right of an independent forum to regulate matters subject to its prescriptive jurisdiction. For this reason, injunctions restraining litigants from proceeding in courts of independent countries are rarely issued.
A second reason cautioning against exercise of the power is avoiding the impedance of the foreign jurisdiction. Injunctions operate only on the parties within the personal jurisdiction of the courts.
However, they effectively restrict the foreign courts ability to exercise its jurisdiction. If the foreign court reacts with a similar injunction, no party may be able to obtain any remedy. Thus, only in the most compelling circumstances does a court have discretion to issue an anti-suit injunction.
There are no precise rules governing the appropriateness of anti-suit injunctions. The equitable circumstances surrounding each request for an injunction must be carefully examined to determine whether, in light of the principles outlined above, the injunction is required to prevent an irreparable miscarriage of justice. Injunctions are most often necessary to protect the jurisdiction of the enjoining court, or to prevent the litigant’s evasion of the important public policies of the forum.”
Airbus Industrie v. Laura Howell Linton, 1994 SCC OnLine Kar 29 : ILR 1994 KAR 1370 : (1994) 5 Kant LJ 63
In SNI Aerospatiale case the Privy Council laid down the principles to be applied by a court in deciding whether to restrain a foreign proceeding. They are as follows: “The principles applicable to the grant by an English court of an injunction to restrain the commencement or continuance of proceedings in a foreign jurisdiction were not the same as those applicable to the grant of a stay of English proceedings in favour of a more appropriate foreign forum, and where a remedy for a particular wrong was available both in an English court and a foreign court the English court would normally only restrain the plaintiff from pursuing the foreign proceedings if it would be vexatious or oppressive for him to do so.”
10….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 perpetuated; 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 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 favoured 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 created, 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 proceedings therein are oppressive or vexatious would be on the party so contending to aver and prove the same.
Dinesh Singh Thakur v. Sonal Thakur, (2018) 17 SCC 12 : (2019) 1 SCC (Civ) 765.Anti-suit injunctions are meant to restrain a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court. Simply put, an anti-suit injunction is a judicial order restraining one party from prosecuting a case in another court outside its jurisdiction. The principles governing grant of injunction are common to that of granting anti-suit injunction. The cases of injunction are basically governed by the doctrine of equity.
12. It is a well-settled law that the courts in India have power to issue anti-suit injunction to a party over whom it has personal jurisdiction, in an appropriate case. However, before passing the order of anti-suit injunction, courts should be very cautious and careful, and it should be granted sparingly and not as a matter of routine as such orders involve a court impinging on the jurisdiction of another court, which is not entertained very easily specially when it restrains the parties from instituting or continuing a case in a foreign court.
PPN Power Generating Company Limited v. PPN (Mauritius) Company, 2004 SCC OnLine Mad 668 : (2005) 2 LW 389 : (2004) 5 CTC 1 : (2004) 4 Mad LJ 434 : (2005) 3 Arb LR 354 : (2006) 129 Comp Cas 849
25…it is beneficial to deal with the scope of “anti-suit injunction” in general which are culled out from various decisions. The same is not defined or dealt with in the Code of Civil Procedure.
(i) When a court restrains a party to a suit/proceedings before it from instituting or prosecuting a case in another court, including a foreign court, it is called “anti-suit injunction”.
(ii) Anti-suit injunction can be issued on the ground of “equity and good conscience”.
(iii) Anti-suit injunction can be granted “to avoid injustice”.
(iv) If foreign proceedings are “oppressive or vexatious”, such anti-suit injunction can be granted.
(v) To prevent the administration of justice being prevented for unjust ends of justice, anti-suit injunction can be granted with respect to foreign proceedings.
(vi) There must be an equity which entitles one party as against the other, to an injunction to restrain the other from proceeding in the foreign court.
(vii) To protect the courts’ own proceedings and process, anti-suit injunction can be granted.
(viii) If the bringing of the legal proceedings involved unconscionable conduct or unconscientious exercise of legal right, such anti-suit injunction may be granted.
(ix) Though the international anti-suit injunction operates only against the parties, it effectively restricts the jurisdiction of a foreign sovereign’s courts.
(x) International anti-suit injunction can be granted whenever there is a duplication of parties and issues and the court determines with the prosecution of simultaneous proceedings would frustrate the speedy and effective determination of the case.
(xi) There is no precious Rules governing the anti-suit injunction.
(xii) Only in the most compelling circumstances, a court should exercise its discretion to issue an anti-suit injunction.
(xiii) Such injunction is required to prevent irreparable and miscarriage of justice and to prevent the litigants’ evasion of the important public policies of the forum.
(xiv) The Court should exercise such a power granting anti-suit injunction to enjoin foreign suits sparingly and only in very special circumstances.
44. The issues of Vexatious, oppressive and injustice were again dealt with at length in the subsequent case of Amchan Products Inc. Et Al v. Workers’ Compensation Board6. The Decision concerned 194 plaintiffs, of whom approximately 100 were British Colombia residents, who claimed damages in respect of injuries sustained as a result of, inter alia, inhalation of asbestos fibres. Notwithstanding the absence of any Texas nexus, proceedings were instituted in the Harrison Country Texas 71st Judicial District alleging negligence by reason of the defendant’s failure to warn of health risks associated with the use of asbestos. An injunction was sought restraining the Texas proceedings through the British Colombia Courts. Ultimately, this was granted on terms: “The defendants point out that no action has been commenced by them in British Colombia whereas in the cases referred to in argument there were actions commenced in both jurisdictions. I do not think that this is of any significance. If this fact was definitive then a complaint could always defeat an anti suit injunction by simply not commencing an action in a jurisdiction where the anti suit injunction is sought. That cannot be right.”
Rajshree Sugars & Chemicals Ltd. v. AXIS Bank Ltd., 2008 SCC OnLine Mad 746 : (2009) 1 CTC 227 : (2009) 1 LW 209 : (2008) 8 Mad LJ 261 : AIR 2011 Mad 144 : (2009) 2 BC 403.
Therefore when the invokation of the jurisdiction of a Court on the basis of a jurisdiction clause contained in an agreement, itself cannot be curtailed by an anti-Suit injunction, the question of injuncting a party from invoking the jurisdiction of a special forum statutorily created to decide certain disputes, does not arise. In the case on hand, Act 51 of 1993 creates a special Tribunal and confers jurisdiction upon the Tribunal to decide all claims made by Banks and Financial Institutions. Therefore the respondent cannot be injuncted from initiating any proceedings for recovery of any money due to them, before the Debts Recovery Tribunal.
50. The general power of superintendence of the High Courts under Article 226/227 of the Constitution, over all Tribunals and other Forums constituted under special enactments, that was reinforced by the Constitution Bench decision in L. Chandrakumar’s case, does not make the Debts Recovery Tribunal, a Court subordinate to this Court. Therefore no injunction can be granted, for restraining the respondent-Bank from initiating any proceedings against the plaintiff herein before the Debts Recovery Tribunal.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 