Ksl And Industries Limited And Anr vs Punjab National Bank
2013 Latest Caselaw 425 Bom

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    dgm

              IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                  
                          CIVIL APPELLATE JURISDICTION




                                                          
                    APPEAL FROM ORDER NO. 1341  OF 2013
                                  WITH
                              CAA/1604/2013




                                                         
    KSL and Industries limited and anr.                            ....   Appellants 
         vs




                                             
    Punjab National Bank                                           ....    Respondents
                                
    Mr. Ajit Anekar i/by Mr. Yogendra Singh i/by  i/by Auris Legal  for the 
    Appellant / Applicants.
                               
    Mr. Premlal Krishnan with Mr. Pankaj Vijayan i/by Intra legal                   for the 
    respondents. 
        


                                      CORAM:  ANOOP V. MOHTA, J.

DATE : December 24, 2013 ORAL JUDGMENT:

Heard finally by consent.

The Appellant/plaintiff has challenged impugned order

dated 25.11.2013 passed by the learned judge, City Civil Court,

Mumbai, whereby for want of jurisdiction, the learned judge, refused

to grant any anti-suit injunction. This Court, after hearing the

Appellant at length, by a reasoned judgment/order on 18 December

2013 granted injunction in the following terms :

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"17 Therefore, taking overall view of the matter at this stage, I am inclined to restrain the Respondent-Defendant from taking any further steps in respect of pending

proceeding i.e. Action No.1888 of 2013 pending before the Hong Kong Special Administrative Region Court of

First Instance till the next date.

18 Stand over to 23 December 2013. To be placed high on board for final disposal."

2 The reason so recorded in the above order dt 18/12/2013

be treated as part and parcel of the present order as after hearing both

the parties finally, I am inclined to dispose of the present Appeal from

Order by adding the following grounds.

3 The Respondent/Bank has filed a reply of one Assistant

General manager of the Respondent, having one from their Asset

Recovery Management Branch, Bandra-Kurla Complex, Mumbai, being

authorized Attorney holder of Respondent/Bank.

4 In reply affidavit dated 23 December 2013 all necessary

objections have raised including the maintainability of such Suit in

view of the provisions of Section 41(b) of the Specific Relief Act. The

submissions are also raised that the parties shall be governed by the

Laws of Hong Kong and no benefit whatsoever should be granted in

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favour of the Appellant/plaintiff, who has committed breach of

contract terms. The submission is also made that the pleadings are

not sufficient to accept the case of oppressive and/or vexatious

litigation. The litigation, expenses or the hardship and/or heavy

expenditure are also not be the reason to accept the case of grant of

anti-suit injunction. This Court, therefore, ought not to have granted

the injunction as the whole intention is to avoid the foreign

decree/judgment, means the due payment and its recovery. The

reliance is placed upon the judgment in the case of Rotomac

Electricals Private vs. National Railway Equipment, decided on 31

January, 2011 in GA No.262/2011 (C.S No.10 of 2011) of Calcutta

High Court, whereby a Division Bench, refused to grant anti-suit

injunction by holding that "prima facie lack of jurisdiction of Indian

Court.". In Calcutta Judgment, reference was also made to Modi

Entertainment Network vs. W.S.G. Cricket Pvt. Ltd. Reported in

(2003)4 SCC 341 and other judgments.

5 As already recorded above, we are dealing with the non-

exclusive clause which is reproduced in order dated 18 December

2013. The effect of non-exclusive clause is that the party has choice of

the court available, may agitate and/or file the Suit. Normally the

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Plaintiff/Appellant is entitled to file the Court of his choice, but if we

consider the settled provisions of law, the Suit need to be filed at a

place of Defendant's residence and/or office. The part of cause of

action, if arose in India, and in view of the paragraphs reproduced

above, unless contested and/or debated and/or decided, to say that

Indian Court has no jurisdiction to grant such anti-suit injunction, in

any circumstances, is impermissible. The question is only where

exceptional case is made out or not. The judgment so cited by the

learned Judge including Modi Entertainment (Supra) in fact

emphasises that such anti injunction Suit in India is maintainable,

though there is a clear provisions so read and referred by the learned

counsel appearing for the Respondent and specially Section 41(b) of

the Specific Relief Act. The foreign court is subordinate to Indian

court or not is again a matter of debate, so also The Specific Relief Act

is applicable to Indian Court for the purposes of Indian litigation. If

there is no total bar, even as per the Modi Entertainment (supra) and

in view of the specific non-exclusive clause between the parties, I see

there is no reason at this stage to accept the case and/or submission of

the learned counsel appearing even based upon the affidavit to show

that this Indian Court has no jurisdiction to pass anti-suit injunction.

However, it is made clear that this observation is at the stage where

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the learned Judge as inspite of notice, the other side was absent,

based upon the averments in the plaint and the documents, refused to

grant ad-interim relief by holding that the Indian Court has no

jurisdiction to grant such anti suit injunction. I am inclined to observe

that unless other side appears and contest and in view of above

observation made in the earlier order dated 18 December 2013 and

above, refusal to grant such anti suit injunction is wrong in the

present facts and circumstances. We are not dealing with the general

provisions of law. If there is no total bar, the Court need to consider

the exceptional case. That can be done only by giving opportunity to

both the parties.

6 Therefore, in the interest of justice, by keeping all points

open, I am inclined to direct the learned judge to dispose of the Notice

of Motion as early as possible, preferably within five weeks from

today. The Respondent to file reply within two weeks from today.

The plaintiff to file rejoinder within one week thereafter. The learned

judge to pass order on Notice of Motion within two weeks thereafter.

7 The liberty is granted to the parties to raise appropriate

plea of jurisdiction also. The learned Judge to decide the same in

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accordance with law. All points are kept open on merits. The interim

order passed by this Court on 18 December 2013 to continue till the

disposal of the Notice of Motion and two weeks thereafter.

8 The Appeal from Order is disposed of in the above terms,

so also the Civil Application. No costs.

                               ig        (ANOOP V. MOHTA, J.)