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.
In the judgment as passed by the Supreme Court in Modi Entertainment Network & Anr. vs. W.S.G.Cricket Pte. Ltd. [Dated 21.01.2003, reported as 2003 AIR 1177 = 2003(1)SCR 480], (Modi Network case) the Court dealt with the issue of anti-suit injunction. The present case is worth including in this category of timeless ratio as the matter 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.
Anti-Suit Injunction – it means restraining a party to a suit/proceeding from instituting or prosecuting a case in another court, including a foreign court. The principles governing grant of injunction are common to that of granting anti-suit injunction, which in effect is a species of injunction.
The Modi Network case propounded guidelines for granting anti-suit injunction, which are discussed hereinafter.
• While granting an anti-suit injunction the Court must be satisfied of the following aspects : –
• the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court;
• if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and
• 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;
• Where there are more than one forums, the Court in exercise of its discretion to grant anti-suit injunction has to examine and determine the appropriate forum (forum conveniens) – i.e. 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;
• Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals of the contract specifying exclusive or non-exclusive jurisdiction of the court of choice of the parties are not determinative but only the relevant factors. The court has to decide the same on a true interpretation of the contract on the facts and in the circumstances of each case;
• 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 unless necessary in an exceptional circumstances backed by sufficient reasons and 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 force majeure reasons etc.;
• Where parties have agreed, under a non- exclusive jurisdiction clause, to approach a neutral foreign forum and to 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 on the presumption that the parties have thought over their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of the court of their choice which cannot be treated just an alternative forum;
• 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;
• However 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;
• 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.
Thus, in considering whether an anti suit injunction is to be granted or not, the court is to inquire whether the defendant is amenable to the personal jurisdiction of the court, whether the ends of justice would be defeated by refusal to grant the injunction and where there are more than one forums available, and which is the forum conveniens for bringing the action in question having regard to the convenience of the parties and other factors. The court has also to bear in mind the principle of comity.