Delhi High Court
Essel Sports Pvt. Ltd.(Indian ... vs Board Of Control For Cricket In ... on 31 March, 2011
Author: Vikramajit Sen
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No.107/2010 & CM Nos. 2517/10, 2520/10,
6557- 58/10 & 6561-62/10
Essel Sports Pvt. Ltd. ...Appellant through
(Indian Cricket League) Mr. Harish Salve, Sr. Adv.,
Mr. C.S. Vaidyanathan, Sr.
Adv., Mr. Maninder Singh,
Sr. Adv. with Ms. Pratibha
M. Singh, Ms. Surabhi
Mehra & Mr. Nikhil Mehra,
Advs.
versus
Board of Control for Cricket .....Respondent through
in India & Ors. Mr. C.A. Sundaram, Sr. Adv.
with Ms. Radha
Rangaswamy, Mr. Raman
Kumar, Mr. Harsh Kaushik &
Mr. Amit Sibal, Advs.
Mr. Ramji Srinivasan, Sr.
Adv. with Ms. Dahlia Sen
Oberoi, Ms. Manya Kumar &
Mr. Zeyaul Haque Advs. for
Respondent Nos.2 and 3.
WITH
FAO(OS) No.154/2010 & CM No.4243/2010
Board of Control for Cricket .....Appellant through
in India Mr. C.A. Sundaram, Sr. Adv.
with Ms. Radha
Rangaswamy, Mr. Raman
Kumar,Mr. Harsh Kaushik &
Mr. Amit Sibal, Advs.
versus
Essel Sports Pvt. Ltd. & Ors. ...Respondent through
(Indian Cricket League) Mr. Harish Salve, Sr. Adv.,
Mr. C.S. Vaidyanathan, Sr.
Adv., Mr. Maninder Singh,
Sr. Adv. with Ms. Pratibha
fao(os)107.2010 & 154.2010 Page 1 of 67
M. Singh, Ms. Surabhi
Mehra & Mr. Nikhil Mehra,
Advs.
Mr. Ramji Srinivasan, Sr.
Adv. with Ms. Dahlia Sen
Oberoi, Ms. Manya Kumar &
Mr. Zeyaul Haque Advs. for
Respondent Nos.2 and 3.
% Date of Hearing : January 10, 2011
Date of Decision : March 31, 2011
CORAM:
* HON'BLE MR. JUSTICE VIKRAMAJIT SEN
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported
in the Digest? Yes
VIKRAMAJIT SEN, J.
1. This Judgment will dispose of connected Appeals No.
FAO(OS) 107/2010 and FAO(OS) 154/2010 emanating from the
common Order of the learned Single Judge dated 4.2.2010, by
means of which an interim injunction on the Plaintiff's
application under Order XXXIX Rule 1 and 2 Code of Civil
Procedure, 1908 (CPC for short) restrained the Defendant, Essel
Sports Pvt. Ltd. (ESPL) from proceeding against the Plaintiff,
the Board of Control for Cricket in India (BCCI), in Courts in
England. The Plaintiff submits that there is complete identity
between the cause of action of the notified lis proposed and
thereafter actually filed on 4.2.2010 in the High Court of Justice,
Chancery Division, London and the dispute which is subject
matter of Suit, CS(OS) No.1566/2007, filed by ESPL against the
BCCI presently pending in this High Court. By the subject
Order, the learned Single Judge vacated the injunction relating
to the International Cricket Council (ICC) and the England &
Wales Cricket Board (ECB).
2. The facts, in a nutshell, are that ESPL started a cricket
tournament in the name and style of the Indian Cricket League
(ICL) wherein the competing teams constitute players of both
Indian and foreign nationality at domestic and international
level. It is alleged that the BCCI, by virtue of being the
concerned Home-Board regulating cricket in India, publically
opposed the Indian Cricket League tournament and also overtly
and covertly took all possible steps to stultify its operations.
The ESPL has alleged that the BCCI used its influence on
various state agencies, ICC and the respective foreign Home-
Boards to boycott the ESPL tournament, namely, the ICL. ESPL
filed a Suit, CS(OS) No.1566/2007 on 24.8.2007 against the
BCCI, in which the Union of India and Karnataka State Cricket
Association were also made parties, seeking declaratory and
mandatory injunctive reliefs against the Defendants. While the
Suit is progressing in this High Court, BCCI filed the subject
Suit for issuance of an anti-suit injunction against ESPL alleging
that BCCI had received a Notice dated 16.11.2009 sent by the
Solicitors of ESPL in England. This Notice states that ESPL
intended to file a suit against BCCI in the Court of England &
Wales in the United Kingdom. Similar notices were sent to ECB
and ICC who were proposed to be made the co-defendants in
that Suit. In this Suit in hand, CS(OS) No.2312/2009, BCCI has
prayed for a perpetual injunction against ESPL from initiating
any action against BCCI in any other judicial forum in respect of
the allegations, subject matter and reliefs contained and
covered in the earlier Suit, CS(OS) No.1566/2007 pending
before Delhi High Court.
3. An interim injunction was granted on 25.1.2010 in favour
of the Plaintiff/BCCI and Defendants No.2 and 3, namely, ECB
and ICC, restraining ESPL from proceeding with its proposed
claim before the U.K. Courts, till the next date of hearing. Vide
impugned Order dated 4.2.2010, the learned Single Judge made
the stay in favour of the BCCI permanent till the final disposal of
the subject anti-suit injunction action. However, the stay qua
ICC and ECB was vacated. All the adversaries, discontent with
different parts of the Order of the learned Single Judge, have
filed their respective Appeals. In FAO(OS) No.107/2010, ESPL
has impugned that part of the Order wherein the learned Single
Judge has restrained it from proceeding against BCCI in the
U.K. Courts. In FAO(OS) No.154/2010, BCCI has impugned the
decision of the learned Single Judge disallowing its prayer to
extend the anti-suit injunction against ICC and ECB. Moreover,
ICC and ECB have also filed their Cross-objections in FAO(OS)
No.107/2010 filed by ESPL praying that ESPL should be
injuncted from proceeding against them in the U.K. Suit filed by
ESPL. It transpires that the very action which was initially
proposed to be pursued against BCCI along with ICC and ECB
has now been filed by ESPL, the only change being that BCCI
has been dropped from the notified array of parties pursuant to
the learned Single Judge's Order. Therefore, substantially BCCI,
ICC and ECB are claiming the same relief from the Court, viz.
that the action in U.K be injuncted in toto.
4. We shall first deal with the Appeal filed by ESPL, that is,
FAO(OS) No.107/2010. Mr. Salve, the learned Senior Counsel
for ESPL, has contended that the learned Single Judge has
gravely erred in holding that the two Suits, that is, the one filed
in India and the other filed in United Kingdom, are similar in
substance and that, therefore, the U.K. Suit is oppressive and
vexatious in nature. It is also argued that such a temporary anti-
suit injunction is unknown in law and tantamounts to this Court
managing the Board of a foreign Court, which is repugnant to
the concept of international comity amongst Courts. Mr. Salve
has laid great store on the fact that the action proposed in the
notice of the Solicitors of ESPL in England is substantially
distinct from the one already filed and under adjudication in this
High Court. It is argued that in the pending Indian Suit, the
actions of BCCI have territorial bearing in India; for instance,
BCCI forbidding local bodies to permit the use of their stadia;
banning of Indian players from playing in ICL and withdrawal of
pension of former Indian players associated with ICL etc. Per
contra, the U.K. Suit only takes within its sweep complaints
which are contextual to actions taken or intended to be taken in
the U.K. It is emphasized that the reliefs sought in England are
substantially different to those in the process of adjudication in
India. Essentially, these claims are based on the U.K.
Competition Act and the curial advantage that the Plaintiff may
have by prosecuting its case in the foreign court ought not be
nullified by an anti-suit injunction. It has also been submitted
that the reliefs sought in the English action are not directed
only to BCCI but are also against ICC and ECB which are
foreign bodies amenable to the jurisdiction of English Courts.
Predicated on this argument, it is urged that the English action
is a single forum case; and that Indian Courts should not grant
an injunction against actions proposed to be filed or actually
filed in Courts ordinarily or naturally possessing jurisdiction
over the dispute. With regard to this proposition, Mr. Salve has
relied on ONGC -vs- Western Company of North America,
(1987) 1 SCC 496, Modi Entertainment Network -vs- W.S.G.
Cricket Pte. Ltd., (2003) 4 SCC 341, Moser Baer India Ltd. -
vs- Koninklijke Phillips Electronics NV, 151 (2008) DLT 180,
British Airways -vs- Laker Airways Ltd., [1984] 3 All ER 39,
Midland Bank -vs- Laker Airways Ltd., [1984] 3 All ER 526.
5. Secondly, Mr. Salve submits that the finding of the
learned Single Judge that the proposed action is oppressive and
vexatious is also erroneous because, as per the Appellants, the
Courts in the U.K. are the natural forum. He has sought support
from SNI Aerospatiale -vs- Lee Kui Jak, [1987] 3 All ER 510 and
MacShannon -vs- Rockware Glass Ltd., (1978) 1 All ER 625.
Mr. Salve has also relied on the Explanation to Section 10 of the
CPC to buttress his contention that even if the second action is
based on the same cause of action, the rationale of Section 10 of
the CPC will not bar the filing of the subsequent suit in a foreign
court. To support this proposition, the Appellant has placed
reliance on Magotteaux Industries Pvt. Ltd. -vs- AIA
Engineering Limited, 155(2008) DLT 73(DB). Section 10 of the
CPC is reproduced below for facility of reference:-
Section 10. Stay of suit.--No Court shall proceed with
the trial of any suit in which the matter in issue is also
directly and substantially in issue in a previously
instituted suit between the same parties, or between
parties under whom they or any of them claim litigating
under the same title where such suit is pending in the
same or any other Court in India having jurisdiction to
grant the relief claimed, or in any Court beyond the
limits of India established or continued by the Central
Government and having like jurisdiction, or before the
Supreme Court.
Explanation.--The pendency of a suit in a foreign court
does not preclude the Courts in India from trying a suit
founded on the same cause of action.
6. It is also urged by Mr. Salve that the English action ought
not to be injuncted as being unconscionable or vexatious and
oppressive only because BCCI, being an Indian party, will be
compelled to defend an action in a foreign jurisdiction. Since the
dispute is between commercial entities having international
presence, defending their positions in the U.K. for the actions in
U.K. jurisdiction, cannot be said to be vexatious. It is
underscored that BCCI is the richest Board in the cricketing
world and, therefore, the expenses likely to be incurred in
defending the lis in the U.K. Courts cannot be viewed as
oppressive.
7. Magotteaux Industries, no doubt, observed that the
Explanation to Section 10 of the CPC provides that the
pendency of a suit in foreign courts does not preclude Indian
Courts from trying an action founded on the same cause of
action. According to our learned Brothers, applying the said
provision conversely, a foreign court should also not precluded
from entertaining any suit based on some cause of action for
which a suit is pending in an Indian Court. The dispute in that
case concerned the breach of a patent by a party in different
jurisdictions. An anti-suit injunction was prayed for in India
against that party/defendant restraining it from prosecuting its
rights in the U.S. Courts. The Court had observed that patent
rights are sovereign rights granted by a sovereign state
bestowing thereby limited monopoly rights to the inventor to the
exclusion of others for a set period. The ratio decidendi of
Magotteaux Industries is that since the foreign suit dealt with
infringement of the patent granted by the U.S. laws, the U.S.
action was based on a distinct territorial cause of action, the
remedy for which would lie only in that particular jurisdiction;
and, therefore, Indian Courts should not grant an anti-suit
injunction predicated on an alleged infraction in India of patent
rights granted by Indian law. It is contended that a similar
situation arises in the present case as well, inasmuch as ESPL
has threatened to invoke the jurisdiction of the UK Courts
invoking the UK laws.
8. In MacShannon, the House of Lords declined the grant of
an anti-suit injunction, inter alia, on the ground that the costs of
prosecuting the suit in Scotland would be oppressive. The Court
on this account held as follows:
In the MacShannon and the Fyfe cases, the plaintiff's
opposition to a stay rested on allegations in his
solicitor's affidavit stating that (1) higher damages are
awarded in the English than in the Scottish courts, (2)
the Scottish system of pleading was inferior to the
English system and might prejudice the plaintiff,
increase the costs and lengthen the duration of the
litigation, (3) party and party costs were less
generously assessed in Scotland than in England.
These allegations were all denied in an affidavit sworn
by the defendants' Scottish solicitors. Neither Robert
Goff J. nor the Court of Appeal attempted what they
described as "the invidious and impossible task" of
deciding which of the two sets of affidavits was to be
preferred.
The majority of the Court of Appeal concluded [1977] 1
W.L.R. 376, 385 that in each case the plaintiff's
justification for bringing an action in England when its
natural forum was Scotland, was-
"the advice of responsible and experienced solicitors ...
[the judge] was right to attribute weight to the
plaintiffs' solicitors' unproven belief that it would be to
the plaintiff's advantage to litigate in England and right
to balance it against the disadvantages to the
defendants deposed to in the affidavits of their
solicitors."
In my opinion this conclusion was wrong in law and
vitiates the exercise of the judge's discretion and the
decision of the majority of the Court of Appeal.
Unproven belief cannot in law constitute a reasonable
justification for bringing an action in England or make
it unjust to send the plaintiff back to his own country
where the action could be litigated more cheaply than
in England and just as satisfactorily from everyone's
point of view. Since the judge's discretion was based
upon a wrong legal principle, that discretion and its
approval by the majority of the Court of Appeal is open
to review by your Lordships.
When no justification has been shown for bringing an
action in England it is, in my opinion, obviously unjust
to make the defendant incur the substantial extra
expense and inconvenience which he would suffer were
he obliged to defend the action in England. The extra
expense as shown in the defendants' affidavits consists
of a substantial extra outlay for witnesses' travelling
and accommodation expenses whether the trial takes
place in Carlisle, Newcastle or London. The
inconvenience consists of the harm which the
defendants' business would suffer through the
disruption caused by their employees being kept away
from their work substantially longer than necessary.
9. In British Airways, an anti-suit injunction was sought
against Laker Airways from prosecuting its claim in the United
States under the Sherman Anti Trust Act and for ‗intentional
tort'. The plea of the British Airways was that the procedure in
the US Courts under the Anti Trust Act was highly oppressive
and distinct from that of British law and further that the action
could as well be prosecuted in the British Courts. The Court
observed that the circumstances in that case were such that
even if the allegations against British Airways in the American
action were to be proved, they would disclose no cause of action
on the part of Laker Airways against British Airways which
would be justiciable in an English Court; and that the Clayton
Act which creates civil remedy with three-fold damages for
criminal offences under the Sherman Act, is, under English
rules of conflict of laws, purely territorial in its application.
Therefore, in these circumstances, the Court found it to be the
case of a ‗single forum' in respect of which injunctions could not
have been granted by the U.K. Courts. It would be relevant to
reproduce the following paragraphs from this Judgment:-
The proposition is that, even if the allegations against
B.A. and B.C. in the complaint in the American action
can be proved, they disclose no cause of action on the
part of Laker against B.A. or B.C. that is justiciable in
an English court. The Clayton Act which creates the
civil remedy with threefold damages for criminal
offences under the Sherman Act is, under English rules
of conflict of laws, purely territorial in its application,
while because the predominant purpose of acts of B.A.
and B.C. that are complained of was the defence of
their own business interests as providers of scheduled
airline services on routes on which Laker was seeking
to attract customers from them by operating its
Skytrain policy, any English cause of action for
conspiracy would be ruled out under the now well-
established principle of English (as well as Scots) law
laid down in a series of cases in this House spanning 50
years of which it suffices to refer only to Mogul
Steamship Co. Ltd. v. McGregor, Cow & Co. [1892]
A.C. 25 and Crofter Hand Woven Harris Tweed Co. Ltd.
v. Veitch [1942] A.C. 435.
In the result your Lordships are confronted in the civil
actions with a case in which there is a single forum
only that is of competent jurisdiction to determine the
merits of the claim; and the single forum is a foreign
court. For an English court to enjoin the claimant from
having access to that foreign court is, in effect, to take
upon itself a one-sided jurisdiction to determine the
claim upon the merits against the claimant but also to
prevent its being decided upon the merits in his favour.
This poses a novel problem, different in kind from that
involved where there are alternative fora in which a
particular civil claim can be pursued: an English court
and a court of some foreign country both of which are
recognised under English rules of conflict of laws as
having jurisdiction to entertain proceedings against a
defendant for a remedy for acts or omissions which
constitute an actionable wrong under the substantive
law of both England and that foreign country.
Cases which have these characteristics can now
conveniently be labelled as forum conveniens cases. In
them the High Court has jurisdiction to control how the
choice of forum shall be exercised. It does so by the
use, as circumstances may require, either of its
discretionary power to grant or refuse a stay of the
action in the English court by the party who is a
plaintiff there, or of its discretionary power to enjoin a
party who is, or is threatening to become, a plaintiff in
the foreign court from continuing or commencing
proceedings in that court. Leaving aside claims that
can immediately be identified as frivolous and
vexatious, the High Court, at the stage at which it
exercises this jurisdiction, is making no determination
on the merits of the claim; it is deciding by which court,
English or foreign, the merits of the claim ought to be
tried. The principles to be applied by the High Court in
making this decision in forum conveniens cases have
been developed over the last 10 years in a number of
decisions of this House starting with The Atlantic Star
[1974] A.C. 436, continuing with MacShannon v.
Rockware Glass Ltd. [1978] A.C. 795 and Castanho v.
Brown & Root (U.K.) Ltd. [1981] A.C. 557, and ending
with The Abidin Daver [1984] A.C. 398; but the
principles expounded in the speeches that were
delivered in all these cases start from the premise that
the claim by one party against an adverse party is a
claim to a right that is justiciable in England. Except
for a short passage in the opinion of my noble and
learned friend, Lord Scarman, in Castanho's case
[1981] A.C. 557 (with which all four other members of
the Appellate Committee, including myself, agreed), I
do not find the speeches in the forum conveniens cases
of assistance in solving the novel problem which your
Lordships have to face in the civil actions that are
subjects of the instant appeals.
The answer to these appeals, in my opinion, clearly
emerges from the application to the allegations that are
crucial in Laker's case against B.A. and B.C. in the
American action of what since the merger of the courts
of common law and Chancery has been a fundamental
principle of English legal procedure. That principle,
originally laid down in North London Railway Co. v.
Great Northern Railway Co. (1883) 11 Q.B.D. 30, was
re-stated by me (albeit in terms that I recognise were in
one respect too narrow) in Siskina (Owners of cargo
lately laden on board) v. Distos Compania Naviera S.A.
[1979] A.C. 210, 256:
"A right to obtain an ... injunction is not a cause of
action ... It is dependent upon there being a pre-
existing cause of action against the defendant arising
out of an invasion, actual or threatened by him, of a
legal or equitable right of the plaintiff for the
enforcement of which the defendant is amenable to the
jurisdiction of the court."
10. Thirdly, the impugned Judgment is challenged on the
ground that it transgresses the norms of judicial comity and
amounts to regulating the ‗court diary' of another Court. It is
contended that the question whether the U.K. Court is the
appropriate Court to be seised of the proposed action should be
left to that Court alone to decide; and the circumstances do not
warrant the writ of this Court to interfere with the jurisdiction
of the UK Court. It is contended that the question of forum non
conveniens is a question to be decided by that forum itself
which is said to be the forum non conveniens. It is not
appropriate and, in turn, is violative of the principles of comity
that one Court should injunct another foreign Court from
hearing a matter on the ground that the other Court is forum
non conveniens. Reliance is placed on Mitchell -vs- Carter,
(1997) BCC 907 wherein an injunction was supplicated for
against the liquidator of the defendants from proceeding against
the assets of the company in the United States under the US
Bankruptcy Code. The Court referred to the principle of comity
and held that ―there must be a good reason why the decision to
stop foreign proceedings should be made here rather than
there. The normal assumption is that the foreign judge is the
person best qualified to decide if the proceedings in his Court
should be allowed to continue. Comity demands a policy of non
intervention‖. Reference has also been made to Barclays Bank
plc -vs- Homan, [1992] BCC 757 where the Court observed that
―today the normal assumption is that an English Court has no
superiority over foreign court in deciding what justice between
the parties requires and in particular, that both comity and
commonsense suggest that the foreign judge is usually the best
person to decide whether in his own court he should accept or
decline jurisdiction, stay proceedings or allow them to
continue‖. A reference has also been made to the view of the
learned Single Judge of this Court in Moser Baer India Ltd.
wherein a distinction was made between an anti-suit injunction
and the doctrine of forum non conveniens in these succinct
words:-
7. The concepts of anti-suit injunction and forum non
conveniens require some examination. An anti-suit
injunction is granted by a Court preventing the parties
before it from instituting or continuing with
proceedings in another Court. On the other hand, the
doctrine of forum non conveniens is invoked by a Court
to not entertain a matter presented before it in view of
the fact that there exists a more appropriate Court of
competent jurisdiction which would be in a better
position to decide the lis between the parties. So, in a
sense the principle on which an anti-suit injunction is
invoked is just the reverse of the principle on which the
doctrine of forum non conveniens is employed.
11. We are, however, completely confined and bound by the
opinion articulated by the Supreme Court in Modi
Entertainment Network. Parties to the dispute had consented
that their ―agreement shall be governed by and construed in
accordance with English law and the parties hereby submit to
the non-exclusive jurisdiction of the English courts (without
reference to English conflict of law Rules)‖. Their Lordships did
not find any valid reason to grant an anti-suit injunction in
disregard of this jurisdictional clause; it declined to restrain the
Respondent from prosecuting the case in the chosen forum, that
is, the English Courts. The Judgment perspicuously discusses
several decisions spanning the globe, namely:-
1. Donohue -vs- Armco Inc, (2002) 1 All ER 749 (HL)
2. SABAH Shipyard (Pakistan) Ltd. -vs- Islamic Republic of
Pakistan and Karachi Electrics Supply Corpn. Ltd. (2002),
2002 EWCA Civ 1643 (CA)
3. Airbus Industrie GIE -vs- Patel, (1998) 2 All ER 257 :
(1999) 1 AC 119 : (1998) 1 WLR 686 (HL)
4. C.S.R. Ltd. -vs- Cigna Insurance Australia Ltd., (1997) 189
CLR 345 : (1997) 146 ALR 402 (Aust HC)
5. Amchem Products Inc -vs- Workers' Compensation Board,
(1993) 102 DLR (4th) 96 (Can SC)
6. British Aerospace Plc -vs- Dee Howard Co., (1993) 1
Lloyd's Rep 368
7. British India Steam Navigation Co. Ltd. -vs-
Shanmughavilas Cashew Industries(1990) 3 SCC 481
8. SNI Aerospatiale -vs- Lee Kui Jak, (1987) 3 All ER 510 :
1987 AC 871 : (1987) 3 WLR 59 (PC)
9. Oil and Natural Gas Commission -vs- Western Co. of
North America, (1987) 1 SCC 496
10. Spiliada Maritime Corpn. -vs- Cansulex Ltd., (1986) 3 All
ER 843 : 1987 AC 460 : (1986) 3 WLR 972 (HL)
11. Castanho -vs- Brown & Root (U.K.) Ltd., 1981 AC 557 :
(1981) 1 All ER 143 : (1980) 3 WLR 991 (HL)
12. MacShannon -vs- Rockware Glass Ltd., (1978) 1 All ER
625 : 1978 AC 795 : (1978) 2 WLR 362 (HL)
13. Carron Iron Co. -vs- Maclaren, (1855) 5 HLC 416 : 24 LJ
Ch 620 : 3 WR 597 (HL).
We have mentioned these precedents for the reason that we
think it entirely futile to analyse them as this exercise has
already been completed in Modi Entertainment Network. The
Supreme Court had delineated the parameters within which the
grant of an anti-suit injunction would be justified, and we fall
entirely within these frontiers. Even with regard to the decisions
that have been delivered after Modi Entertainment Network,
it is not possible for us to charter a course that is not in
consonance with the principles culled out by their Lordships.
For facility of reference paragraph 24 of Modi Entertainment
Network is reproduced:-
24. 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 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.
12. We shall now anlayse the contentions of the rival parties.
The first question is whether the cause of action in both the
Suits is common. The Indian Suit, CS(OS) No.1566/2007 filed on
24.8.2007, is a Suit for Declaration, Permanent and Mandatory
Injunction. ESPL has filed this Suit against the Union of India,
Karnataka State Cricket Association and BCCI which is arrayed
as Defendant No.5. The Suit alleges that BCCI, which is a
private organization affiliated to ICC, has not only publically
opposed ICL but has overtly and covertly taken all possible
steps to stultify its operations. It is also alleged that a de facto
monopoly in the field of cricket is sought to be created in India
by BCCI which is now acting arbitrarily in its own functioning as
well as in the administration of the game.
13. The portions of the Plaint containing the allegations
against the State entities and the BCCI are reproduced below
for facility of reference and comparison:-
27. In response to the Plaintiff's communication dated
03.04.2007 sent to the defendant No.5-BCCI the BCCI
responded by its communication dated 21.06.2007
addressed to all the Presidents and Hony Secretaries of
all the affiliated units of defendant No.5 and was also
sent to a number of players-intimidating and
threatening them with serious consequences in the
event any of their affiliated units permitting any of its
stadiums and/or cricket players with them in
participating in the tournaments/matches to be
organized by the ICL. The Plaintiff states that the
reference to private tournaments in the communication
is obviously a reference to the ICL as there is no other
known tournament being organized. This
communication is clearly an effort to intimidate, both,
players wishing to play for ICL, as well as ICL itself, as
well as a conspiracy that the defendant no.5 is
formulating with its state affiliate units to cause
wrongful loss, harm and damage to the plaintiff, in the
light of the fact that the players have earlier been
allowed to play in matches organized by event
management companies (such as matches played
between movie stars and cricket players), as well as
matches organized by the ICC, which is also a private
organization. In any event, the Plaintiff states that
even though Defendant no.5 is a private body, it cannot
discriminate against players on arbitrary grounds. The
threat to disallow a player to participate in their
tournament solely on the ground that he has also
played in a tournament organized by the Plaintiff is
clearly arbitrary.
......
29. Defendant no.5 has also threatened stalwarts such
as Kapil Dev that in the event they provide their
expertise for the objectives to be achieved by ICL in
any manner, the welfare schemes launched by the
defendant no.5 including pension scheme and benefit
matches shall not be made available to them and all
those benefits shall stand withdrawn.
......
31. The plaintiff states that the BCCI has directly and
through its affiliate units etc. has started intimidating,
threatening players that if they play in ICL, the players
will not be able to be selected for ‗Team India'
irrespective of their performance. The plaintiff
respectfully submits that defendant no.5 is
systematically, with a malafide intention threatening
the players and state associations. Defendant no.5- has
threatened to disqualify players participating in ICL
tournaments from being eligible to be selected for
―Team India‖. This threat is clearly designed to
prevent young players from participating in ICL
tournaments, hence damaging their scope of growth as
players. This is also clearly a means of conspiring
against and intimidating the plaintiff from succeeding
in the formation of ICL, hence causing loss to the
plaintiff.
......
34-C Defendant No.5-BCCI seeks to rely upon its
purported Memorandum, Rules & Regulations, Players'
Registration Form and the regulations annexed
therewith by contending that it has the power/authority
to prevent cricketers, past and present, from playing
any match other than those organized by or under the
auspices of the BCCI. Defendant no.5-BCCI also seeks
to justify its conduct on the basis of the said
Memorandum, Rules and Regulations, Players'
Registration Form and the Regulations annexed
therewith.
34-D The plaintiff states that during the proceedings in
the present suit before this Hon'ble Court on
27.8.2007, on behalf of defendant no.5 BCCI-had
placed reliance upon its purported ―Memorandum and
Rules & Regulations‖ seeking to contend that it has the
power/authority under its Memorandum to, inter alia,
control the game of cricket in India, select the Indian
Team, makes rules for the game of cricket in India etc.
The relevant clauses of the Memorandum of the
defendant no.5- BCCI are as under:-
Memorandum
―...2(a) To control the game of cricket in India and
give its decision on all matters including Womens
cricket which may be referred to it by any Member
Associations in India...
.....
...2(g) To frame the laws of cricket in India and to
make alteration, amendment or addition to the laws of
Cricket in India whenever desirable or necessary.
.....
...2(s) To select teams to represent India in test
matches. One day International and Twenty/20 matches
played in India or abroad, and to select such other
teams as the Board may decide from time to time.
......
...2(u) To appoint the Manager and/or other official of
Indian Teams.
2(v) To appoint India's representative or
representatives on the International Cricket
Conference and other Conferences, Seminars
connected with the game of cricket..‖
.....
34-F The defendant no.5-BCCI has also prescribed form
for registration of the players for playing matches for
Ranji Trophy etc. thereby incorporating therein an
undertaking on behalf of each of the player that he
shall not play, either in India or abroad in any other
match or tournament which is not registered with, not
approved by the affiliate Association or BCCI or ICC
without the prior written permission of the BCCI. The
relevant clause of the Players Registration Form of the
BCCI is reproduced as under:-
―..2 I shall not play or participate in any cricket match
or tournament Organized as charity/festival/benefit
match or tournament not registered with or not
approved by the Association or BCCI or ICC or any of
its affiliated members without the written permission of
the BCCI either in India or abroad.‖
34-G There are certain Regulations which are annexed
with Players' Registration Form of the defendant no.5-
BCCI, which also include similar clauses seeking to
prohibit players from playing any other match
organized by any other organization/agency. The
relevant clauses of the said Regulations of the BCCI
annexed with Players' Registration Form are
reproduced as under:
―..9. No registered player can play or participate in a
Cricket match or Tournament not recognized by the
Association or Board or the ICC or any of its affiliated
members without the written permission of the Board
either in India or abroad.
10. No registered player can play or participate in a
Cricket match or Tournament organized as Festival/
Charity/Benefit match or Tournament not registered
with or approved by the Association or Board or ICC or
any of its affiliated members without the written
permission of the Board either in India or abroad.
If any of the registered players participate in any
of the Tournaments or matches not permitted by the
BCCI or ICC and its affiliated members he will be liable
for deregistration and will be registered only after a
gap of one year which period the Board may waive at
its discretion.‖
34-H Without prejudice to the aforesaid contention of
the Plaintiff that the amendments carried out by the
defendant no.5-BCCI from time to time in its
Memorandum & Rules and Regulations have not been
placed before the Registrar of Societies, Tamil Nadu,
for approval and the same being non-est and void- the
plaintiff submits the Memorandum, the Rules and
Regulations, Players Registration Form and the
regulations annexed therewith of the BCCI- seeking to
prevent the cricketers from participating in other
tournaments without in any manner affecting the
tournaments of the matches organized by BCCI, are
clearly in unlawful restraint/restraint of trade.
Further, the Memorandum and the Rules and
Regulations etc. in so far as they seek to authorize the
BCCI to represent its team as the Indian Team-are
neither valid nor legal and are non-est and void. It is
an admitted position that BCCI is a private organization
as recognized by the Hon'ble Supreme Court in the
case of Zee Telefilms Ltd v Union of India, (2005) 4
SCC 649, it is not having any jurisdiction or authority
to take any action or decision with reference to Indian
team and/or Cricket players for playing for the country.
34(I) The plaintiff further states that the defendant
no.5-BCCI by virtue of its existing position, through the
Memorandum, Rules & Regulations, Players'
Registration Form and the regulations annexed
therewith, purports to create a monopoly in favour of a
private body in the game of cricket. The avowed stand
of the defendant no.5 before the Hon'ble Supreme
Court was that there is no bar on any other person
from organizing matches or otherwise participating in
the game of cricket. The plaintiff states that
nonetheless in an abuse of its monopolistic position by
having first mover advantage and having existing
affiliations, defendant no.5 seeks to, in an unlawful and
impermissible manner, restrict and control the game of
cricket in a way that it continues to exercise sole and
exclusive monopoly.
....
37-A The plaintiff submits that defendant no.5-BCCI
has affiliate members/associations. These member
associations have set up stadia for playing the game of
cricket. The lands for these stadia have been allotted
to the said associations by the State Governments/other
authorities under State/Central Governments at
concessional/token charges. It is submitted that the
said lands have been allotted for promoting the game of
cricket. In view thereof, the plaintiff is also entitled to
the use of the stadia alongwith defendant no.5 and its
affiliated associations for organizing cricket matches.
The refusal of the use of the stadia by the affiliate state
associations is malafide and is at the behest and under
intimidation and threat of the defendant no.5. Hence,
the plaintiff submits that such conduct on the part of
the defendant no.5 is in restraint of trade/unlawful
restraint and against public policy.
The fact that defendant no.5 is using duress and
coercion on all its members is evident, inter alia, from
communication dated 29.8.2007 issued by the Cricket
Club of India Ltd., Mumbai, which has become
available to the plaintiff. The said communication
quotes minutes of the meeting of the BCCI dated
28.8.2007 wherein action is taken against Mr Raj Singh
Dungarpur, for issuing a press statement that the
Brabourne Stadium would be available for the matches
of the Plaintiff. This conduct of the BCCI clearly
establishes it is threatening/intimidating all its
members and affiliate associations and office bearers
and with action if they deal with the plaintiff-Indian
Cricket League.
Also, by way of its communication dated
10.09.2007 the Tamil Nadu Cricket Association
cancelled the registrations of some players on the
ground that they opted to play for the Plaintiff League.
.....
38. The plaintiff states that by its threats and acts of
intimidation the defendant no.5 has committed
malfeasance with defendants no.1 to 4, have committed
non feasance by their lack of action against defendant
no.5. It is the obligation of defendants no.1,2 and 3 to
prevent the misrepresentation of defendant no.5 that it
alone has the power to choose the Indian cricket team,
while it is the obligation of defendants no.1,2 and 3 to
ensure that the grounds given by them to the affiliate
units of defendant no.5 at token value for the
promotion of sports such as cricket, are used for this
purpose only and further are made available to anyone
promoting such purpose. These grounds have often
been used for other purposes, such as for beauty
pageants, political rallies etc. but when ICL was
desirous of using the Chinnaswamy Stadium, being a
stadium on one such ground, to organize a cricket
tournament, the user of the ground was denied to it by
defendant no.4 and none of the defendants no.1,2 and 3
fulfilled their obligations in this regard of ensuring the
user of the said ground for the promotion of cricket in
these circumstances the defendant no.5 is guilty of
various acts such as intimidation, malafide actions,
malfeasance, conspiracy, public nuisance and all such
acts give rights to the plaintiff and constitute a valid
cause of action for filing the present suit against the
defendant's herein. The plaintiff submits that if the
defendant no.5 is guilty of the aforesaid acts the
defendants no.1 to 4 are also guilty and have
committed an act of non-feasance and by allowing the
defendant no.5 to continue with its public nuisance.
The plaintiff therefore submits that due to the said acts
committed by the defendants the plaintiff is entitled for
relief as prayed.
39. It is submitted that an independent and individual
right of any one cannot be curtailed or restricted by
any private body. Even the State cannot impose any
restrictions save and except under Article 19(2) of the
Constitution of India. Defendant no.5-BCCI never had
nor has been provided with any power or authority to
impose any restriction on any one from promoting the
Sports and/or from participating therein. Rights are
independent rights. No player can be so restricted or
be put under threat by BCCI. The threatened acts and
conduct on the part of defendant no.5-BCCI clearly
amounts to putting undue and illegitimate ―threat‖ and
―pressure‖. The threat and intimidation by the
defendant no.5 through restrictions sought to be
imposed upon the Players as well as Associations are
unfair, unjust, unreasonable, impermissible and illegal.
14. It is necessary underscore that neither the ICC nor the
ECB are parties in the previously instituted lis which is
presently pending in the Original Side of this Court, a feature
that has been repeatedly emphasised by Mr. Salve. The reliefs
which are claimed in the said Suit, CS(OS) No.1566/2007 by
ESPL are as follows:-
(i) Pass a Decree of Permanent injunction
restraining/prohibiting Defendant no.5 its
assigns, office bearers, employees, agents,
successors or any other entity acting in the
name and/or on its behalf from using the name
and National Flag of India or representing to
the public at large that the team of the
defendant no. 5 represents India;
(ii) Pass a Decree of Mandatory Injunction against
Defendants 1 to take all necessary steps in
accordance with law in ensuring that Defendant
no.5 its assigns, office bearers, employees,
agents, successors or any other entity acting in
the name and / or on its behalf do not use the
name and National Flag of India or represent to
the public at large that the team of the
defendant no.5 represents India;
(iii) Pass a Decree of Permanent Injunction
restraining/ prohibiting defendant no.5, its
assigns, office bearers employees, agents,
successors or any other entity acting in the
name and/or on its behalf from intimidating,
threatening in any manner whatsoever,
inducing or inciting or in any other manner
interfering with the attempts of the Plaintiff to
sign up contracts with players-past and present
- for participating in its tournaments and from
interfering in any manner with the conduct of
the activities of the plaintiff's Indian Cricket
League;
(iv) Pass a Decree of Permanent Injunction
restraining/ prohibiting the defendant no. 5 its
assigns, office bearers, employees, agents,
successors or any other entity acting in the
name and/or on its behalf from issuing any
threat inducement or any other statement
whatsoever, publicly or privately, that interferes
with the free will of any of its affiliate state
units or the players who are members or
associates of those affiliate units from in any
manner entering into contracts with the
Plaintiff;
(v) Pass a Decree of Permanent Injunction
restraining/ prohibiting the defendant no.5 its
assigns, office bearers, employees, agents,
successors or any other entity acting in the
name and / or on its behalf from, in any manner,
directly or indirectly, inducing or in any manner
being instrumental in its affiliate state units
declining the user of the cricket grounds
allotted to them by the defendant no. 2&3 or
any other state authorities or other authorities
for organizing the cricket matches therein by
the ICL;
(vi) Pass a Decree of Mandatory Injunction against
Defendants 1-3 directing them to ensure that
the State affiliates of Defendant no. 5 who are
having Cricket stadiums on the lands allotted by
the Government - to make available those
Stadia to the plaintiff for ICL matches on such
terms and conditions which this Hon'ble Court
may deem fit and appropriate to be prescribed
for that purpose;
(vii) Pass a Decree of Permanent Injunction
restraining/ prohibiting the defendant no. 5 its
assigns, office bearers, employees, agents,
successors or any other entity acting in the
name and/or on its behalf from withdrawing the
benefits in any manner whatsoever which it has
been extending or is proposing to extend to its
past cricket players including the pension and
benefit match scheme on account of the fact
that they have participated in the matches
organized by the ICL;
(viii) Pass a Decree in favour of the Plaintiff and
against the defendants declaring that clauses
2(a), 2(g), 2(s), 2(u), 2(v) of the Memorandum of
the BCCI and clauses 1(d), 9(c), 9(d),9(g),
13(v)(b), 13(v)(c) and 13(v)(f) of the Rules and
Regulations are illegal, non-est and void.
(ix) Pass a decree in favour of the Plaintiff and
against the defendants declaring that Rules 33-
d, 33-e and 34 of the Rules and Regulations of
the BCCI are illegal, non-est and void;
(x) Pass a decree in favour of the Plaintiff and
against the defendants declaring that Clause 2
of the Form of Players' Registration - Ranji
Trophy and also Regulations 9 and 10 of the
Regulations annexed therewith as illegal, non-
est and void;
(xi) Any other further orders as this Hon'ble Court
deems fit and proper in the facts and
circumstances of the present case;
(xii) Costs be awarded
15. We shall now compare the asseverations in the proposed
action sent along with the Notice issued initially by the
Solicitors of the Appellant, and the U.K. action now pending in
the High Court of Justice, Chancery Division after the grant of
anti-suit injunction by the learned Single Judge in favour of
BCCI. The averments qua the BCCI in the draft accompanying
Notice were as follows:-
3. The Second to [ ] Claimants (―the Players‖)
are professional cricketers who wish to negotiate
contracts to play for teams participating in the
ICL. The Players are listed in Schedule A to these
Particulars of Claim together with brief details of
their playing careers to date.
.....
5. The Board of Control for Cricket in India
(―the BCCI‖) is a not for profit society registered
in accordance with the Tamil Nadu Societies
Registration Act under the laws of India. The
membership of the BCCI comprises State cricket
associations and various cricket clubs across
India. It organizes international matches for the
Indian cricket team and a number of domestic
cricket competitions in India, for which it exploits
the broadcasting rights.
6. In particular, the BCCI promotes a Twenty20
cricket competition known as the Indian Premier
League (―the IPL‖). The first season of the IPL
was launched in April 2008, the second season
took place in South Africa in 2009 and the third is
due to commence in India in March 2010. The
worldwide broadcasting rights to the IPL were
sold in February 2008 for ten years for a reported
US$ 1.026 billion to a consortium of the Sony
Television network and the Singapore-based
World Sports Group (which outbid the ESPN-Star
Sports network, jointly owned by News
Corporation and Disney).
.....
36. From its inception, ICL has received a hostile
reaction from the BCCI. Early approaches in
correspondence in which ICL aimed to achieve co-
operation between ICL and BCCI were rebuffed by
BCCI.
37. On 21 August 2007, a resolution was adopted
unanimously at a Special General Meeting of the
BCCI, resolving that: ―Every individual has a right
to choose whether he wishes to associate himself
with any other organization. However, if he
chooses to associate himself with any other
organization, he will not be entitled to derive any
benefit from BCCI or be associated with any
activities of the Board or its affiliated units‖.
38. BCCI has since engaged in a range of
activities clearly calculated to deter and prevent
prospective players (and others) from involving
themselves with ICL, and intended to obstruct the
activities of the ICL.
PARTICULARS
(1) Barring players associated with ICL from
eligibility for the Indian national team.
(2) BCCI sacked Kapil Dev as head of the
Indian National Cricket Academy because
of his involvement with ICL. Other players
have been barred from involvement in BCCI
events by reason of their association with
ICL.
(3) Interfering with existing and prospective
contracts between players and the ICL
through threats and intimidation.
(4) Instructing all local affiliates not to allow
cricket grounds to be used for ICL games or
otherwise to involve themselves or permit
individuals to involve themselves with ICL,
on penalty of exclusion from all BCCI
activities and pensions.
(5) Preventing the use of state-owned stadia for
use as ICL match venues through BCCI's
monopolistic management of such venues
(or through its control of the local BCCI
affiliates which manage the use of those
stadia).
(6) Amending the terms of the BCCI pension
fund to discriminate against players who
involve themselves with ICL.
(7) Putting pressure on potential advertisers
not to advertise on ICL by threatening to
withhold opportunities for sponsorship
activity with the BCCI.
(8) Putting pressure on other country boards to
ban their players from playing in the ICL
and to bar them from playing for their
country where they played in ICL (examples
of such international bans include Shane
Bond of New Zealand and Justin Kemp of
South Africa).
(9) In 2008, the BCCI announced the intention
(in conjunction with Cricket South Africa
and Cricket Australia) to launch an
international club Twenty20 Champions
League. Clause 2.4.6 of the invitation to
tender for commercial rights in respect of
the competition stated that involvement
directly or indirectly with ICL would result
in automatic disqualification of any bidder.
(10) The BCCI imposed a similar clause to that
referred to in 38(9) above in the IPL
broadcast rights tender document (see §6
above), thereby excluding the companies
operating the Zee branded television
channels from bidding as they are
associated with ESPL (see §15 above).
....
50. The boycott of the ICL set out at §§ 36-49 has
had a serious effect on the players.
16. The allegations against the BCCI which still remain in the
action filed in the U.K. Courts even after the grant of anti-suit
injunction are as follows:-
5. The Board of Control for Cricket in India
(―the BCCI‖) is a not for profit society registered
in accordance with the Tamil Nadu Societies
Registration Act under the laws of India. The
membership of the BCCI comprises State cricket
associations and various cricket clubs across
India. It organizes international matches for the
Indian cricket team and a number of domestic
cricket competitions in India, for which it exploits
the broadcasting rights.
6. In particular, the BCCI promotes a Twenty20
cricket competition known as the Indian Premier
League (―the IPL‖). The first season of the IPL
was launched in April 2008, the second season
took place in South Africa in 2009 and the third is
due to commence in India in March 2010. The
worldwide broadcasting rights to the IPL were
sold in February 2008 for ten years for a reported
US$ 1.026 billion to a consortium of the Sony
Television network and the Singapore-based
World Sports Group (which outbid the ESPN-Star
Sports network, jointly owned by News
Corporation and Disney).
.....
35. From its inception, ICL has received a hostile
reaction from the BCCI. Early approaches in
correspondence in which ICL aimed to achieve co-
operation between ICL and BCCI were rebuffed by
BCCI.
36. On 21 August 2007, a resolution was adopted
unanimously at a Special General Meeting of the
BCCI, resolving that: ―Every individual has a right
to choose whether he wishes to associate himself
with any other organization. However, if he
chooses to associate himself with any other
organization, he will not be entitled to derive any
benefit from BCCI or be associated with any
activities of the Board or its affiliated units‖.
37. BCCI has since engaged in a range of
activities clearly calculated to deter and prevent
prospective players (and others) from involving
themselves with ICL, and intended to obstruct the
activities of the ICL.
PARTICULARS
(1) Barring players associated with ICL from
eligibility for the Indian national team.
(2) BCCI sacked Kapil Dev as head of the
Indian National Cricket Academy because
of his involvement with ICL. Other players
have been barred from involvement in BCCI
events by reason of their association with
ICL.
(3) Interfering with existing and prospective
contracts between players and the ICL
through threats and intimidation.
(4) Instructing all local affiliates not to allow
cricket grounds to be used for ICL games or
otherwise to involve themselves or permit
individuals to involve themselves with ICL,
on penalty of exclusion from all BCCI
activities and pensions.
(5) Preventing the use of state-owned stadia for
use as ICL match venues through BCCI's
monopolistic management of such venues
(or through its control of the local BCCI
affiliates which manage the use of those
stadia).
(6) Amending the terms of the BCCI pension
fund to discriminate against players who
involve themselves with ICL.
(7) Putting pressure on potential advertisers
not to advertise on ICL by threatening to
withhold opportunities for sponsorship
activity with the BCCI.
(8) Putting pressure on other country boards to
ban their players from playing in the ICL
and to bar them from playing for their
country where they played in ICL (examples
of such international bans include Shane
Bond of New Zealand and Justin Kemp of
South Africa).
(9) In 2008, the BCCI announced the intention
(in conjunction with Cricket South Africa
and Cricket Australia) to launch an
international club Twenty20 Champions
League. Clause 2.4.6 of the invitation to
tender for commercial rights in respect of
the competition stated that involvement
directly or indirectly with ICL would result
in automatic disqualification of any bidder.
(10) The BCCI imposed a similar clause to that
referred to in 37(9) above in the IPL
broadcast rights tender document (see §6
above), thereby excluding the companies
operating the Zee branded television
channels from bidding as they are
associated with ESPL (see §14 above).
17. Paragraphs 3 and 50 of the Draft Plaint, which referred to
the players as one of the Claimants have been deleted in the
action presently pending before the Chancery Division, London.
Plainly, the foreign (English) professional cricketers are no
longer aggrieved by the alleged machinations of BCCI. Further,
although there is no pointed reference to BCCI as a Defendant,
the action filed in England contains the same allegations against
BCCI.
18. Thus, it is clear that the ESPL in the action filed by it in
the U.K. after suffering an anti-suit injunction from the Delhi
High Court has only made superficial and cosmetic changes by
dropping BCCI as one of the Defendants but has retained all the
averments and allegations against the BCCI as it is. Therefore, it
cannot be said that the action with which the ESPL has now
filed is different to that which had been articulated in the
Notice.
19. The action initially intended to be initiated in the U.K.
Court was predicated on the premise that ―ESPL has plans to
stage ICL matches in the future outside India, including in the
U.K.‖ The main allegation in the said action is also directed
against the BCCI. The hostile actions of the BCCI are described
as ―boycott of ICL‖ by the BCCI and/or ―orchestration by the
BCCI‖. These allegations are contained in the following
paragraphs of the proposed Plaint:-
36. From its inception, ICL has received a hostile
reaction from the BCCI. Early approaches in
correspondence in which ICL aimed to achieve co-
operation between ICL and BCCI were rebuffed by
BCCI.
37. On 21 August 2007, a resolution was adopted
unanimously at a Special General Meeting of the
BCCI, resolving that: ―Every individual has a right
to choose whether he wishes to associate himself
with any other organization.. However, if he
chooses to associate himself with any other
organization, he will not be entitled to derive any
benefit from BCCI or be associated with any
activities of the Board or its affiliated units‖.
38. BCCI has since engaged in a range of
activities clearly calculated to deter and prevent
prospective players (and others) from involving
themselves with ICL, and intended to obstruct the
activities of the ICL.
20. The reliefs sought to be claimed by ESPL in their foreign
action are as follows:-
(1) A declaration against all Defendants to the effect
that by agreeing and/or deciding to carry out and/or
implement the boycott of the ICL each breached the
Chapter I prohibition and/or the Chapter II prohibition
and/or was in restraint of trade;
(2) An injunction against each of the Defendants
carrying out and/or implementing the boycott of the
ICL;
(3) An inquiry as to damages in respect of the
infringements of the Chapter I prohibition and/or the
Chapter II prohibition;
(4) Further or other relief; and
(5) Costs.
21. From a reading of the two Claims/Plaints as well as the
Notice, it cannot be contended otherwise than that the main
allegations are made against the BCCI for orchestrating the
alleged boycott against ICL. No doubt, the Indian Suit is
pegged against the BCCI together with the concerned Indian
parties, and the UK action is directed against ICC and ECB, but
the actions of the BCCI remain at the fulcrum of the contention
in both the suits.
22. In the U.K. action, we may reiterate, the allegation is that
BCCI has influenced ICC and ECB to amend their regulatory
framework to the end that approval can be granted for
organizing an unofficial approved cricket tournament, only upon
the concerned Home-Board conveying its no-objection. The
assertion of ESPL is that BCCI has, by this stratagem, prevented
the ICL from getting the status of an ICC approved unofficial
cricket tournament. As a consequence, the foreign players
intending to be associated with different affiliate cricket Boards,
including the ICB could not play in the ICL tournament
scheduled to be held in India; since they would not receive
permission from their Home-Boards owing to the opposition of
BCCI in respect of matches to be held in India, which, in turn,
would deleteriously affect the viewership in the U.K. where the
viewership is substantially of persons from the Indian
Subcontinent.
23. Drawing our attention to the prayers in the English action,
Mr. Sundaram has contended that the provisions mentioned in
the foregoing paragraph have not been challenged and no
reliefs qua the Regulations of the ICC and the ECB have been
claimed. Therefore, the argument that the distinctiveness of
cause of action in the UK action is because of the challenge to
the Regulations of ICC and ECB has no foundation. In Rejoinder,
Mr. Salve argues that since the relief of Declaration and
Injunction against the entire ‗boycott' is sought, if it is granted,
the Regulations will automatically get struck down.
Furthermore, it is contended that the lacuna in drafting, if any,
should properly be addressed before the UK Court and
advantage of that cannot be obtained in this Court.
24. After perusing the two Claims and cogitating on the
contentions of the adversaries, we are of the opinion that the
cause of action in the two is substantially and materially the
same. The alleged machination of the boycott of ICL by BCCI is
the pivotal grouse around which the two actions revolve. The
event, viz. ICL, is an international cricket tournament planned
to be held in India. The permission sought in UK for the release
of players and the status of an approved unofficial cricket
tournament was also sought in respect of the tournament which
is to be held in India only. Therefore, it presently seems to us
that it cannot be said that merely because a letter seeking the
approval was written to ICC in the U.K. the substantial cause of
action occurred in U.K.; as we have already recorded, ICC is
neither registered in the U.K. nor is its Headquarters located
there. We are not persuaded that the action filed in England is
distinct from the cause of action which is the subject matter of
the Indian litigation. There is a bald averment that the ESPL
wishes to hold the ICL event in the UK in future. However, in
our view, this statement of its intent in future will not confer
jurisdiction upon the UK Court until such event actually
transpires. No material change would result, we think, even in
this hypothetical situation. We say this because if it is presumed
that BCCI would record its objection as a Home-Board, it would
stultify an ICL outside India by directly banning Indian
cricketers from participating in such a foreign ICL tourney.
25. The second argument is that the UK Suit is being
prosecuted under the UK Competition Act and, therefore, the
action is based on a distinct statutory cause of action, thereby
making the UK action a single forum case. However, we think
the argument to be misconceived. A statutory cause of action
arises from breach of a specific duty cast or right conferred by a
statute on a person. The existence or provision of a remedy
being available under a statute would not, ipso facto without
more, create a cause of action of a single forum character. This
is especially so when the same remedy can be invoked and
prayed for in another forum under the laws and statutes of
different countries. We shall merely make a mention of the
Judgments cited by learned Senior Counsel for the Respondent,
viz. Bell'Oggetti International Inc. -vs- Flooring and Lumber
Company Ltd., 2001 O.T.C. 362 and Horn Linie Gmbh -vs-
Panamerica Formas E Impresas SA, [2006 2 Lloyd's Reports 44].
26. After comparing the reliefs sought in the two Claims, we
are of the opinion that these declaratory and injunctive reliefs
for the very same cause of action can be availed of under the
Indian Competition Act or under the Indian Contract Act. We
must immediately clarify that in the event of a challenge
simplicitor to the ICC Regulations without any reference to the
alleged machination of BCCI which are already sub judice the
change would be drastic. Therefore, the argument that an anti-
suit injunction takes away the juridical advantage is not tenable
in the facts of the present case.
27. Having concurred with the learned Single Judge that the
UK action is a two or multiple forum lis, we shall venture
forward to assess whether the UK action is oppressive or
vexatious. Mr. Salve's contention in this regard has already
been noted by us above. We agree that in a commercial dispute,
the compulsion to defend an action in a foreign jurisdiction may
not invariably lead to the conclusion that the foreign
proceedings are oppressive; however, having to defend the
same allegations by the same party in two different jurisdiction
is unquestionably oppressive.
28. We will now advert to Magotteaux Industries, on
which Mr. Salve has placed reliance. The dispute pertained to a
patent in respect of which the Plaintiff had filed a case for
damages and for permanent injunction to restrain the Defendant
from infringing its patent granted in India. The Defendant had
taken a plea that there was already a case pending in the US
Courts under US Tariff Act of a similar nature. The Division
Bench observed that since a patent is a right granted by the
sovereign State to the inventor, it is a creation of a statute. The
privilege is a right, advantage or immunity granted to a person
to exclusion of all others. Therefore, since the alleged
infringement of the patent is a breach of a statutory right
granted by a sovereign, its breach in that territory would give
rise to a distinct and separate cause of action from the
infringement of a similar patent granted by a different sovereign
state. Since in the present case there is no such breach of
statutory right, this decision does not help the case of the
Appellant. Our learned Brothers had observed that so far as the
infringement of a patent in the US was concerned, these rights
had been granted by a sovereign power and the cause of action
pertaining to their violation had also arisen in a foreign
jurisdiction. That being so, our learned Brothers had declined to
grant an anti-suit injunction, even though there was allegedly a
similar infringement perpetrated in India. With due respect to
our learned and esteemed Brothers, the observation that the
Explanation to Section 10 of the CPC would also apply
conversely is in the nature of obiter dicta. Mr. Salve has
strenuously canvassed that the Explanation to Section 10 of the
CPC must enure to the benefit of the Appellants since the legal
regime obtaining in this country in terms conceives of the
jurisdictional legitimacy of a lis in India which is identical to
that pending in a foreign jurisdiction. So far as we see it, the
Explanation was in existence at the time when India was a
dominion of a foreign power. The rationale of providing an
appeal via Letters Patent may well have motivated the
Legislators in going against the grain of the universal principle
of law articulated in Section 10 of the CPC viz. a later action is
required to be stayed. With due respect, we cannot concur with
the reasoning that Explanation to Section 10 of the CPC would
operate conversely to enable a foreign court to assume
jurisdiction in respect of a cause of action which is pending
adjudication in this country. Since it appears to us that the
view of our learned Brothers in Magotteaux Industries was
given en passant and is in the nature of obiter dicta, we think it
unnecessary to refer this question to a Larger Bench.
29. There cannot be any cavil to the propositions laid down in
Modi Entertainment Network, that a subsequent suit, if held
to be vexatious and oppressive, can be injuncted by the Indian
Courts, provided other necessary ingredients are also satisfied.
Contrary findings of different Courts on same facts are an
anathema to law, and if a party endeavours to invoke the
jurisdiction of foreign Court to a cause of action already being
prosecuted in the national forum, it would amounts to vexatious
litigation.
30. In Modi Entertainment Network, the Hon'ble Supreme
Court has opined that an anti-suit injunction can be granted
where the foreign proceedings are vexatious, oppressive or
forum non conveniens. Courts have the bounden duty to ensure
that the ends of justice are not thwarted. Ergo, an anti-suit
injunction should be passed. Legal proceedings by an Indian
party in a foreign Court, in which the prayers predominantly
concern another Indian party, even whilst a suit on similar
allegations and reliefs is still pending in an Indian Court
between the same parties, is, in our considered opinion,
vexatious and oppressive.
31. The argument of Mr. Salve that the proceedings in the UK
Court cannot be vexatious and oppressive for the reason that
the UK is the natural forum is also untenable. Both the
Plaintiff/ESPL and its main antagonist, BCCI, are Indian parties.
The Regulations which appears to be hurting ESPL are of ICC
and the approval and the declaration sought for in the U.K.
Courts is also directed against the ICC which is a body
registered in Virgin Islands with working Headquarters in
Dubai. U.K. Courts thus have territoriality because of the
location of the ECB, but it cannot be ignored that the reliefs
claimed against ICB as on date are consequential upon the
granting of reliefs qua BCCI. Besides, as already stated, the
boycott, allegedly orchestrated by BCCI, is of the cricketing
event to be held in India; and loss of viewership in UK is not by
itself sufficient to make UK the natural forum of the dispute.
Moreover, it must be presumed that none of the professional
cricketers having allegiance to the ECB have any grievance with
regard to the present cause of action.
32. Furthermore, the evidence sought to be adduced in the
UK Court are of the same witnesses who have deposed in the
Suit which is proceeding in India. If the UK Suit is allowed to
proceed, it will only lead to a duplication of evidence and even
more detrimentally to the possibility of conflicting or variant
verdicts. Therefore, in light of all these facts, it appears to us
that the U.K. Courts cannot be held to be forum conveniens. The
learned Single Judge was justified in holding UK Courts to be
forum non conveniens.
33. In Modi Entertainment Network, the Apex Court
observed that it is ―commonplace 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 exercise of jurisdiction
by another Court‖. Thus, the in personam jurisdiction may be
exercised against the Defendant if the Plaintiff is able to make
out an appropriate case for its exercise. Indubitably, courts have
to be circumspect in exercising its power to issue an anti-suit
injunction, but it must do so where the ends of justice would
otherwise be defeated.
34. We shall now analyse the argument of the Appellant that
the temporary anti-suit injunction granted is against the
principles of comity and amounts to Court Management of the
UK Court. Hilton -vs- Guyot, 159 US 113 which was decided by
the American Supreme Court in 1895 contains a definition of the
term ‗comity' which has also been accepted in Circa 1990 by the
Canadian Supreme Court in Morguaral Investment -vs- De
Savoge. It reads - ―Comity in the legal sense is neither a matter
of absolute obligation, on the one hand, nor of courtesy and
goodwill, upon the other. But it is the recognition which one
nation allows within its territory to the legislative, executive or
judicial acts of another nation, having regard both to
international duty and convenience, and the rights of its own
citizens or of other persons who are under the protection of
its laws.‖ Comity does not demand of a Court possessing
jurisdiction to abdicate its duty to decide a dispute in favour of a
foreign Court possessing concurrent jurisdiction. It would be a
dereliction of duty if the former declines to adjudicate so as to
enable a ‗forum non conveniens' Court to proceed with the
hearing of a lis filed or intended to be filed before it. In some
vital respects, it is wholly dissimilar, or even the antithesis of
the principle of ―stay of the suit‖ as postulated in Section 10 of
the CPC. We say this because the prior filing is not determinate
so far as issuance of an anti-suit injunction is concerned; and
the Court passing this injunction does not halt its own
proceedings but brings proceedings in another Court to a
standstill. It achieves this by commanding any or all the parties
before it, over whom it holds sway, to take requisite action.
35. In Society of Lloyd's -vs- Peter Everett White, [2002]
I.L.Pr.10, the Court had granted an ad interim anti-suit
injunction against the Defendant till the disposal of action in its
jurisdiction. The impugned Order is palpably not the first out of
its kind, as has been alleged on behalf of the ESPL.
36. The reasons for the grant of the anti-suit injunction by the
learned Single Judge have been crystallized in the following
paragraph of the impugned Judgment:-
To summarize, having regard to the factors to which I
have made a reference hereinbelow, I am persuaded to
grant an anti-suit injunction only qua BCCI: (i) the
plaintiff has chosen to file the Indian claim, the issues
in which substantially overlap with the issues raised in
the U.K. claim; (ii) the determination of the issues
raised in the Indian claim would substantially do away
with the grievance of ESPL which finds its reflection in
the U.K. claim; (iii) the evidence in the Indian claim is
at an advance stage. Out of the six (6) witnesses cited
by the ESPL examination of four (4) witnesses is almost
over. Moreover BCCI has already filed its affidavit by
way of evidence (examination-in-chief) which is
available with ESPL. To cite an instance of interlinkage
of evidence, the affidavit of Mr Himanshu Mody is a
case in point, in particular, his deposition in paragraph
15. In the said paragraph in no uncertain terms the
deponent has alluded to the fact that BCCI is exerting
pressure and intimidating not only players (both Indian
and foreign) but also "international bodies" and
"cricketing bodies" of other countries from the ICL.
This conduct of BCCI is termed by the deponent as
"monopolistic" and "unlawful" causing wrongful loss.
The deponent in paragraph 15(a) and (b) of his affidavit
has given an example of how influence has been
exerted on the foreign cricket board ECB as also ICC.
The policy of CSA and ECB, as contained in the e-mails
of the deponent to the ICL representative, has been
appended as exhibits to the affidavit of the deponent.
There is every possibility of the said evidence being
used by ESPL in its proceedings in U.K.; (iv) both the
BCCI and the ESPL are Indian entities; a substantial
part of the grievance raised with regard to the
recognition of tournaments held by ICL is in India. This
is not to say that ICL is not aggrieved by the non-
recognition of tournaments held outside India.
However, both form an inextricable part of ESPL's
grievance in the U.K. claim; (v) on a comparative scale
the disadvantage of BCCI in form of cost and expenses
(see ONGC case) would be greater, while the ESPL may
have the advantage of a possibly higher monetary gain
in the form of a damage, if it succeeds; (See SNI
Aerospatiale case). In the Midland Bank case the
possibility of Midland Bank being mulct with a greater
quantum of damages was considered as a relevant
factor in the grant of an anti-suit injunction. (vi) BCCI
has a legitimate right to contend that the Indian court
being the court with which issues raised qua BCCI have
a real and substantial connection - it has a legitimate
right to be sued in the Indian courts. The fact that in
the U.K. claim and in the documents filed there is a
substantial reference to the events of April/August,
2007 and that in respect of those issues the pendency
of the Indian claim cannot be denied; and (vii) lastly,
even if it is assumed that U.K. court is the only forum
available to ESPL even then on a principle of
unconscionablity (the reasons for which I have given
hereinabove) BCCI is entitled to injunction qua itself.
37. The learned Single Judge, in our opinion, was correct in
holding that the BCCI has established that there is substantial
overlapping of the two actions and that there would be a risk of
conflicting judgments/orders if two parallel proceedings on the
same issues are allowed to be preceded with. The tests laid
down in Modi Entertainment Network for the grant of an
anti-suit injunction have clearly been met since it appears to us
also that the foreign suit is oppressive, vexatious and in a forum
non conveniens. So far as the grant of the relief as a temporary
injunction is concerned, the three factors that should co-exist,
viz, prima facie case, balance of convenience, irretrievable loss
and injury, have been shown so to exist by BCCI.
38. We, being the Appellate Court, would be justified in
interfering with the impugned Order only if it is perverse. We do
not detect any perversity. The view of the learned Single Judge
is, at the lowest, a plausible one. In Wander Ltd. -vs- Antox
India P. Ltd., 1990(Supp) SCC 727, their Lordships had analysed
the powers of the Appellate Court to interfere with the
discretionary orders passed by the lower courts in these terms -
―The appellate court will not interfere with the exercise of
discretion of the court of first instance and substitute its own
discretion except where the discretion has been shown to have
been exercised arbitrarily, or capriciously or perversely or
where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An
appeal against exercise of discretion is said to be an appeal on
principle. Appellate court will not reassess the material and
seek to reach a conclusion different from the one reached by the
court below if the one reached by that court was reasonably
possible on the material. The appellate court would normally not
be justified in interfering with the exercise of discretion under
appeal solely on the ground that if it had considered the matter
at the trial stage it would have come to a contrary conclusion. If
the discretion has been exercised by the trial court reasonably
and in a judicial manner the fact that the appellate court would
have taken a different view may not justify interference with the
trial court's exercise of discretion‖. This decision has been
followed subsequently in Seema Arshad Zaheer -vs- Municipal
Corpn. of Greater Mumbai, (2006) 5 SCC 282. The City Civil
Court had granted a temporary injunction against the
Corporation which was challenged before the Bombay High
Court. Speaking for the Bench His Lordship R.V. Raveendran
made the following pithy observations:-
32. Where the lower court acts arbitrarily, capriciously
or perversely in the exercise of its discretion, the
appellate court will interfere. Exercise of discretion by
granting a temporary injunction when there is ―no
material‖, or refusing to grant a temporary injunction
by ignoring the relevant documents produced, are
instances of action which are termed as arbitrary,
capricious or perverse. When we refer to acting on ―no
material‖ (similar to ―no evidence‖), we refer not only to
cases where there is total dearth of material, but also to
cases where there is no relevant material or where the
material, taken as a whole, it is not reasonably capable
of supporting the exercise of discretion. In this case,
there was ―no material‖ to make out a prima facie case
and therefore, the High Court in its appellate
jurisdiction, was justified in interfering in the matter
and vacating the temporary injunction granted by the
trial court.
39. In Ramdev Food Products (P) Ltd. -vs- Arvindbhai
Rambhai Patel, (2006) 8 SCC 726, the Supreme Court has taken
into consideration both Wander Ltd. and Seema Arshad
Zaheer -vs- Municipal Corpn. of Greater Mumbai, (2006) 5 SCC
282. His Lordship, S.B. Sinha, J., has perspicuously propounded
the law in these words:
The grant of an interlocutory injunction is in
exercise of discretionary power and hence, the appellate
courts will usually not interfere with it. However, the
appellate courts will substitute their discretion if they
find that discretion has been exercised arbitrarily,
capriciously, perversely, or where the court has ignored
the settled principles of law regulating the grant or
refusal of interlocutory injunctions. This principle has
been stated by this Court time and time again. [See for
example Wander Ltd. v. Antox India P. Ltd., 1990 (Supp)
Supreme Court Cases 727, Laxmikant V. Patel v.
Chetanbhai Shah, (2002) 3 SCC 65 and Seema Arshad
Zaheer -vs- Municipal Corpn. of Greater Mumbai, (2006)
5 SCC 282].
The appellate court may not reassess the material
and seek to reach a conclusion different from the one
reached by the court below if the one reached by that
court was reasonably possible on the material. The
appellate court would normally not be justified in
interfering with the exercise of discretion under appeal
solely on the ground that if it had considered the matter
at the trial stage it would have come to a contrary
conclusion.
40. In view of the above, Appellant has failed to make out a
case warranting interference with the order of the learned
Single Judge. The Appeal filed by ESPL is, therefore, dismissed.
Pending applications also stand dismissed.
41. We shall now deal with the Appeal filed by the BCCI which
is FAO(OS) No.154/2010 and the Cross-Objections filed by ICC
and ECB in the aforegoing ESPL Appeal. Both the Appeal and
the Cross-Objections are directed against that part of the Order
of learned Single Judge wherein the interim injunction qua ICC
and ECB has been vacated. The reason for vacating the
injunction sought in favour of ICC and ECB, as recorded by
learned Single Judge, is that the injunction against ICC and ECB
―cannot be entertained on the short ground that neither the ICC
nor ECB is before me. The plaintiff in its suit cannot propound
the case of a litigant for relief who has not sought relief from
the Court‖.
42. In the Cross-Objections filed by ICC and ECB, Mr. Ramji
Srinivasan, learned Senior Counsel for ICC and ECB sought to
urge that the learned Single Judge erred in vacating the stay
qua ICC and ECB which was operating since 25.01.2010. His
argument is that ICC and ECB are Defendants in BCCI Suit and
thus were undeniably before the learned single Judge. Further,
it is stated that a confusion was caused by the Order passed on
7.1.2010 in FAO(OS) No.20/2010 where the Division Bench
observed that presence of ICC and ECB was not necessary at
the hearing of the injunction application. Mr. Srinivasan states
that this was taken to understand that ICC and EBC need not be
present as necessary party and that the presence of BCCI would
suffice before the learned Single Judge. Learned Senior
Counsel for ESPL has vehemently refuted the stand of Mr.
Srinivasan stating that ICC and ECB never submitted to the
jurisdiction of the Hon'ble Delhi High Court, thus they cannot
seek any protection from this Court and therefore the learned
Single Judge was justified in not extending the anti-suit
Injunction qua them. Secondly, it has been stated that FAO(OS)
No.2/2010 was filed by ESPL against the Order dated 7.12.2009
injuncting ESPL from proceeding in the proposed action in UK.
The Division Bench, after observing that since Order XXXIX
Rules 1 and 2 application was still not decided finally, it was not
appropriate to hear the Appeal until the application is finally
disposed of. In view of the urgency, the Division Bench
preponed the date of hearing and passed a direction that the
application be disposed of by 30.1.2010 by the learned Single
Judge. Further, it was also directed in light of the urgency that
Memorandum of Appeal be treated as Reply to the Order XXXIX
Rules 1 and 2 application and in that light only, the Court
observed that presence of Defendant Nos. 2 and 3, that is, ICC
and ECB, ―shall not be necessary for the purpose of the said
hearing‖. This clarification, as per learned Senior Counsel for
ESPL, was made so as to enable the learned Single Judge to
dispose of Order XXXIX Rules 1 and 2 application expeditiously,
even in the absence for any reason of ICC and ECB. We are in
no manner of doubt that this did not mean that ICC and ECB
were totally absolved from entering appearance and making the
equitable prayers before the learned Single Judge. It is also
stated that in light of the fact that ICC and ECB had not
appeared before the learned Single Judge at the time of disposal
of the application, nor have they submitted to the jurisdiction of
Delhi High Court, the Cross-Objections filed by them in the
ESPL Appeal should not be entertained. On the issue of
maintainability of the Cross-Objections, Mr. Srinivasan has
argued that both ICC and ECB have been made parties to the
Suit filed by the BCCI, that both ICC and ECB have
unconditionally subjected themselves to the jurisdiction of Delhi
High Court, which fact has been duly recorded in our Order
dated 19.07.2010, in FAO(OS) 107/2010. It is also argued that
ECB and ICC have filed their Written Statements in the Suit and
that they have a substantial interest in the matter and therefore
vacation of stay qua them severely works to their detriment.
43. Mr. Srinivasan further contends that the springboard of
the action before the UK Court is the alleged boycott of ICL by
BCCI. The cause of action that pertains to ICC and ECB ensued
subsequent and consequent upon the said boycott. Since the
admitted position by ESPL is that the BCCI is at the centre of
the entire conspiracy hatched against ICL and the same is
already being adjudicated before the Delhi High Court, it would
be travesty of justice if ICC and ECB are sued in the U.K. Court
for the said dispute which essentially is between ESPL and
BCCI. ICC and ECB have now filed their respective Written
Statements in which they have stated that the Indian Court may
not have the territorial jurisdiction to adjudicate the allegations
based on the events that occurred outside India, but since the
entire grievance can be decided in the Indian Suit; therefore,
ESPL may be injuncted from prosecuting its action also against
ICC and ECB. Once the same is decided, and the Indian Court
pronounces on the allegations of anti-competitive practices
levied against the BCCI, ESPL can then based on that decision
pursue its remedies, if any, against ICC and ECB in the U.K.
Court. Mr. Srinivasan has drawn our attention to various
portions of the impugned Order where it has been observed that
the cause of action and issues in the two claims are overlapping
and that adjudication of the Indian Suit would substantially
render the cause in UK otiose. (These observations, however,
are made in the context of the BCCI and not as regards ICC and
ECB.)
44. Mr. Sundaram, in the Cross Appeal numbered FAO(OS)
154/2010 filed by the BCCI against the impugned Judgment, has
pointed out that the mischief that is caused by excluding ECB
and ICC from the protection of anti-suit injunction is that ESPL
is proceeding with its proposed suit by dropping BCCI from the
action initiated in the U.K., though it has retained all the
allegations against BCCI. This, according to Mr. Sundaram, has
caused a piquant situation where despite the BCCI not being a
party to the action as a Defendant, all the allegations against
the BCCI still survive and would require adjudication by the
U.K. Court. Therefore, the purpose of the anti-suit injunction
qua the BCCI also stands defeated in effect. It is, therefore,
urged that the entire action based on the alleged boycott by the
BCCI of ICL and its consequential events be injuncted in toto as
it contains the same factual allegations which have been
narrated in the Indian Suit.
45. Mr. Vaidyanathan, learned Senior Counsel controverts
these arguments on the basis that ICC and ECB have
throughout shown reluctance to appear before the Indian Court
and have not subjected themselves to the jurisdiction of this
Court. It is further contended that the events on which the U.K.
action is predicated are beyond the jurisdictional sway of this
Court, and this fact has also been admitted by ICC and ECB in
their Written Statements. Further, it is submitted by him that
the Delhi High Court is not the appropriate or natural forum to
entertain the English action. Thus, in the entire conspectus, an
anti-suit injunction qua ICC and ECB cannot be granted.
Learned Senior Counsel has placed reliance on Mitchell -vs-
Carter, (1997 BCC 907) and Barclays Bank PLC -vs- Homan,
(1992 BCC 757).
46. We shall now compare the asseverations in the proposed
action sent along with the Notice issued initially by the
Solicitors of the Appellant, and the U.K. action now pending in
the High Court of Justice, Chancery Division after the grant of
anti-suit injunction by the learned Single Judge in favour of
BCCI. The averments qua the BCCI in the draft accompanying
Notice as well as the action pending in the Chancery Division
have already been reproduced above and it is noted that only
cosmetic changes are made and there is no substantial
difference in the two actions.
47. While upholding the injunction as regards BCCI, we have
expressed the opinion that the English action substantially
encompasses allegations that are also the subject matter of
Indian Suit which must properly be tried by Indian Court only.
Having decided so, we have to agree with Mr. Sundaram,
learned Senior Counsel for the BCCI that if the allegations as
regards the role of the BCCI are allowed to be adjudicated in
the U.K. action in the absence of BCCI, the temporary anti-suit
injunction granted in its favour would prove to be a pyrrhic
victory. As we have injuncted ESPL from proceeding against the
BCCI on the ground that the proposed UK action overlaps with
the Indian Suit, the lis ought not to be allowed to proceed.
Therefore, in the interest of justice, and to prevent the mischief
that is caused by a partial stay it is expeditious and necessary
that the action which ESPL has now initiated which relies
essentially on the allegations against the BCCI be also stayed.
This position would obtain regardless of whether or not BCCI is
a party to the U.K. litigation. It seems to us that if the Indian
Suit is decided in favour of ESPL, the UK claim against ICC and
ECB would become redundant in view of the nature of
declaration and injunction claimed in the Indian Suit. It is the
case of ESPL that the amendments in the Rules of ICC and the
refusal to grant the status of an approved unofficial tournament
was on the instance of the BCCI. The refusal to release players
by ECB was allegedly is because of the pressure exerted by the
BCCI and the provisions of ICC. If ESPL is able to prove anti-
competitive practices on the part of the BCCI and obtain a
mandatory injunction against all such actions, all its grievances
can be met by a decree in the Indian Suit itself.
48. In this analysis, BCCI has been able to establish the
vexatious and oppressive nature of the U.K. action which ESPL
is currently pursuing against ICC and ECB. We think it
appropriate and in the interest of justice to pass an interim
injunction against ESPL from proceeding with the action against
ICC and ECB pending in the Chancery Division, London in so far
as that action contains allegations against BCCI or in the event
that the adjudication of that action overlaps with the pending
Indian Suit, viz. CS(OS) No.1566/2007.
49. The Appeal of BCCI as well as the Cross-Objections
filed by ICC and ECB are allowed in the above terms.
CM No.4243/2010 stands disposed off. There shall be no order
as to costs.
50. Trial Court record be sent back forthwith.
( VIKRAMAJIT SEN )
JUDGE
( MUKTA GUPTA )
JUDGE
March 31, 2011
