Padmini Hindupur vs Abhijit S Bellur
2015 Latest Caselaw 1586 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment reserved on : 19.02.2015
                                  Judgment delivered on : 24.02.2015
+     CS(OS) 2916/2014
      PADMINI HINDUPUR
                                                           ..... Plaintiff
                         Through       Mr. Sanjeev Sindhwani, Sr. Adv
                                       with Ms. Ekta Sikri, Mr. Saket
                                       Sikri and Mr. Nishant Anand,
                                       Advs.
                         versus

      ABHIJIT S BELLUR
                                                          ..... Defendant
                         Through       Mr. Dayan Krishnan, Sr. Adv.
                                       with Mr. Trideep and Ms. Dharini
                                       Ravi, Advs.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

I.A. No.18648/2014 (under Order XXXIX Rules 1 & 2 of the CPC)

1. Present suit has been filed by the plaintiff wife against her

defendant husband seeking an anti-suit injunction.

2. The case as set up by the plaintiff is that the parties had got

married on 26.02.2012 at Bangalore according to Hindu rites. Both

parties come from a backgrounds of status. Two days after the marriage,

the defendant went back to the United State where he was working. The

plaintiff stayed with her in-laws. She joined her husband in USA on

26.09.2012. This was after residing with her in-laws for six months. The

plaintiff stayed in USA with her husband up to 04.03.2013 when she

came back to India on a return ticket which was valid up to 26.04.2013.

At that point of time, the parties were living in Arlington, Virginia. On

15.04.2013, the maternal uncle of the defendant gave the plaintiff a shell

shock when he informed her that her husband was not keen that she

should join him back in the USA. The plaintiff finally went back to

USA on 11.06.2013 where she could not contact her husband inspite of

all efforts made by her; she stayed with her relative; this was up to

03.08.2013 when she returned back to India. In this intervening period,

she could not meet her husband and she could not join him at their

residence which was in Arlington, Virginia as her husband had

foreclosed the said lease (which was in the joint names of the plaintiff

and the defendant) in her absence on 03.06.2013.

3. On her return to Delhi, the plaintiff filed a petition under Section

9 of the Hindu Marriage Act,1955 seeking restitution of her conjugal

rights. This was suit No.840/2013 and is pending before the concerned

Family Court. Since the defendant husband was not responding to her

e-mails and communication inspite of her best efforts and for no reason

whatsoever, she was also forced to file a complaint on 10.9.2013 under

the Domestic Violence Act, 2005 which is complaint No. 168/2013.

Proceedings before the National Human Rights Commission, Crime

Against Women Cell (CAW) as also a complaint before the police were

also filed. Criminal Writ Petition No.132/2014 was also filed by the

plaintiff seeking registration of an FIR against her delinquent husband.

Efforts for reconciliation were made by the courts and they were also

determined to mediate through the medium of SKYPE but all such

initiations failed. This was reported to the Court on 26.7.2014

4. On 29.07.2014, the defendant husband filed a petition before the

Court at Montgomery County, Maryland, USA seeking divorce on the

ground of cruelty from the plaintiff. His contention was that he is a

resident of Maryland since the last one year or more and the matrimonial

relations between the couple had become estranged; he had suffered

cruelty at her hands; accordingly he prayed for a divorce from the said

Court. The plaintiff learnt about this petition in Delhi On 11.08.2014,

she had filed a response before the Maryland Court in USA wherein her

first objection was that she was not submitting herself to the jurisdiction

of the Court at Maryland but without prejudice to this submission, she

had contended that a fraud had been played upon the Court as her

husband was not a resident of Maryland since the last one year which

was a pre-requisite for that Court to entertain his petition; the Maryland

Court did not have jurisdiction; she prayed that the petition be

dismissed. It is this prayer which has been highlighted by the learned

senior counsel for the defendant to support his argument that since the

defendant had made a counter prayer seeking dismissal of the petition

filed by her husband, this amounted to a voluntary submission by the

plaintiff to the jurisdiction of the Court at Maryland.

5. The defendant has opposed all the aforenoted prayers. The

foremost defence set up by the defendant is that this Court has no

territorial jurisdiction to entertain the present suit. The present suit

which is a suit seeking an anti-suit injunction is barred on this ground

alone. Reliance has been placed upon on the provisions of Section 20 of

the Code of Civil Procedure, 1908 (CPC); submission being that the

parties had admittedly been married at Bangalore; parties had never

resided in Delhi; their last residence together was in the USA; merely

because the plaintiff was a resident of Delhi would not confer

jurisdiction upon the Delhi Courts. Learned senior counsel for the

defendant has placed reliance upon the judgment of the Supreme Court

reported as 2005 10 SCC 704 Shree Subhlaxmi Fabrics Pvt. Ltd. Vs.

Chand Mal Baradia and Ors to support this argument. Submission

being that the plea of jurisdiction in fact goes to the root of the matter

and until and unless it is decided by the Court that the Court has the

territorial jurisdiction to try the suit, it would be improper for this Court

to grant any interim relief. Reliance has also been placed upon the

judgment of the Supreme Court in AIR 2003 SC 1177 Modi

Entertainment Network and Anr. Vs. W.S.G. Cricket PTE Ltd. to

substantiate his submission that the guidelines and principles for grant

of an anti-suit injunction have been laid down by the Apex Court in this

judgment and the foremost of which is that where the defendant against

whom an injunction is sought is not amenable to the personal

jurisdiction of that Court, an anti-suit injunction should not be granted.

Additional submission being that this Court is dealing with the

principles of equity and fair play; relief sought by the plaintiff is a

discretionary relief; the plaintiff is not entitled to this relief as material

facts have been concealed by her; she had not disclosed to the Court that

she had already submitted herself to the jurisdiction of the Maryland

Court in USA by filing a response there on 11.08.2014; she had filed a

suit in this Court on 12.09.2014 but the factum of her filing her response

in the proceedings before the Maryland Court have intentionally been

suppressed; she had given an impression to this Court that she had not

been represented by counsel in USA whereas her letter dated 11.08.2014

clearly shows that she had given authority and consent to a counsel there

to represent her. On this ground as well, the plaintiff is not entitled to

any relief.

6. Submissions and counter submissions have been perused.

7. The averments in the plaint disclose that the parties had been

married according to Hindu rites in Bangalore on 26.02.2012. They

never resided in Delhi. Two days after the marriage, the defendant had

gone to USA. The plaintiff was able to join her husband only six months

thereafter i.e. on 26.09.2012. She stayed with her husband up to

04.03.2013. They were living at Arlington, Virginia. In fact a joint lease

in the names of the plaintiff and the defendant had been taken but in the

absence of the plaintiff and without her knowledge and consent on

03.06.2013, this lease had been surrendered by the defendant. All these

are admitted facts. It is also an admitted position that the plaintiff while

returning to India was travelling on a return ticket which was valid up to

26.04.2013. Plaintiff, however, did not return back on that date because

there was a stop-over of 21 hours at Doha which had intimidated her;

she rescheduled her flight and went back to the USA on 11.06.2013 and

stayed there up to 03.8.2013. She could not meet her husband inspite of

all efforts to contact him; he was no longer living in their earlier

residence as he had surrendered the lease of that house on 03.6.2011.

He had also apparently changed his job; all this was without her

knowledge. She stayed in the USA with a relative and finally returned to

India on 03.08.2013. On 11.08.2014 on learning about the proceedings

in the Maryland Court (USA) she filed a response. This has been

disclosed by her in para 18 of the plaint wherein it has been averred that

on checking the website of the concerned Court in USA she sent letter to

that Court objecting to the judgment of that Court. Submission of the

defendant that there has been suppression of fact and the plaintiff has

not disclosed this fact in this Court is thus a wrong submission.

8. However before adverting to any other argument this Court must

first answer as to whether it has the territorial jurisdiction to deal with

the case or not. On this proposition, learned senior counsel for the

defendant has placed reliance upon a judgment of this Court reported as

(2007) 11 SCC 335 Alchemist Ltd. and Another Vs. State Bank of Sikkim

and others. Submission being that until and unless a cause of action is

made out, the territorial jurisdiction of the Court cannot be invoked.

Attention has been drawn to the plaint; submission being that the only

cause of action made out by the plaintiff is that she learnt about the

pending proceedings of the Maryland Court in Delhi which in terms of

this judgment would not tantamount to a "cause of action" as the Apex

Court in Alchemist (supra) had held that a mere service of notice on the

petitioner at Calcutta under the Rajasthan Urban Improvement Act, 1959

would not give rise to a cause of action unless such a notice was "an

integral part of the cause of action". Submission being reiterated that no

cause of action has arisen within the territorial state of Delhi.

9. Arguments have been refuted. Submission being reiterated that a

wholesome reading of the plaint would clearly show that the Delhi

Court has the territorial jurisdiction to entertain the suit. Learned senior

counsel for the plaintiff has placed reliance upon 2014 (210) DLT 591

Teva Pharmaceutical Industries Ltd. and others Vs. Natco Pharma

Limited to support his submission that even if the pleadings have not

been happily worded and the averments made in the plaint are not lucid,

such weaknesses in the pleadings should not penalize the plaintiff and

even presuming that there has been no clear averment on the cause of

action which as per the plaintiff had arisen on the abandonment by the

defendant qua the plaintiff which had forced her to return to India

followed by threats to file proceedings in the U.S Court would amount

to a cause of action. The plaintiff should not be penalized for an

ambiguous pleading.

10. "Cause of action" is admittedly a bundle of facts. It has not been

defined either in the Constitution or in the CPC. It has that bundle of

essential facts which are necessary for the plaintiff to prove before he

could succeed; the cause of action forms the foundation of a suit.

11. A wholesome reading of the plaint is necessary to answer this

proposition. The suit is a suit for anti- suit injunction. Prayers made in

suit read as under:

"(a) Pass a decree of declaration thereby declaring that any further orders passed by the Court of the Circuit Court Montgomery County, Maryland 50, Maryland Avenue, Rockville, MD 20850-2393, USA in petition bearing case no.121385-FL filed by the defendant hereafter would not be recognized in India and are null and void.

(b) grant an anti suit injunction in favour of the plaintiff and against the defendant restraining the defendant, his agent, attorney and anybody else on behalf of the defendant from proceeding with the petition bearing Court file No.petition Case No.121385-FL before the Circuit Court Montgomery County, Maryland 50, Maryland Avenue, Rockville, MD 20850-2393 ,USA

(c) award costs of the present litigation in favour of the plaintiff and against the defendant,"

12. Para 13 of the plaint states that the defendant was aware of the

plaintiff's presence in the USA when she was there between 11.06.2013

up to 03.08.2013 but he deliberately did not contact her; all efforts made

by her to contact him failed. She was suffering immensely at the hands

of the defendant. On her return to India, she had no alternative but to

conduct proceedings under the Hindu Marriage Act and accordingly, she

had filed a petition for restitution of conjugal rights. Apart from these

proceedings, Domestic Violence proceedings before the CAW Cell were

also filed. FIR was also sought to be registered through a criminal writ

petition. Parties had been sent for mediation and all efforts for mediation

had failed. This report was submitted by the Mediator on 26.7.2014. It

was only thereafter on 29.07.2014 that the defendant filed a petition

seeking divorce in the Maryland Court which came to the knowledge of

the plaintiff from reliable source to which she had sent a letter to that

Court wherein she had stated that she had not submitted herself to the

jurisdiction of the Court at Maryland, USA. In para 26, it has been

reiterated that it would be the Courts in India alone which would have

the jurisdiction to deal with the dispute as the parties had been married

under the Hindu Marriage Act and would be governed by the Hindu law.

The cause of action has been detailed in para 30. It is stated that the

cause of action again arose in favour of the plaintiff when she was

abandoned in USA and sent back to her parents' house at New Delhi;

she was forced to live in her parents' house in August 2013; the cause of

action is a continuing cause of action as the abandonment by the

defendant qua the plaintiff continued.

13. In a judgment delivered in CCP No. 21/2002 titled as Mrs. Indira

Sonti Vs. Mr. Suryanarayan Murty Sonti, a Bench of this Court where

while dealing with the provisions of Section 20 of the CPC (a suit under

the Hindu Adoption and Maintenance Act), had held that desertion by

the estranged spouse qua the other was a continuous act and as such a

conduct was continuous unless it was stopped by deserter.

The plaint clearly avers that the plaintiff had been abandoned by

the husband and she had been forced to leave her home in USA in

August, 2013; since then she is living with her parents; although there

are no specific averments that she was suffering a threat in Delhi for the

proceedings being initiated by her husband in Maryland, USA but the

entire reading of the plaint does decipher this position as well. Paras 13,

18 and 29 clearly state that when the plaintiff learnt about the

proceeding having being initiated by the defendant in Maryland, she was

shocked; this was to say the least as she was making all efforts to save

the marriage and that is why she had also preferred a petition seeking

restitution of her conjugal rights. The behaviour of the defendant in not

meeting her, ignoring her communications and thereafter the suit

proceedings having been initiated in Maryland and of which she learnt

in Delhi and despite her protest of not submitting herself to the

jurisdiction of that Court, had finally led her to file the present anti-suit

injunction. Cause of action had arisen in her favour in Delhi when she

was forced to come back from USA to live with her parents in Delhi;

she had no other place where her abandoned form could stay; this

abandonment by her husband qua the plaintiff continued and was

continuous right up to the date of the filing of the suit.

14. Thus even presuming that the pleadings in the suit are not happily

drafted, in view of the ratio of Teva Pharamaceutical (supra) such a

weakness should not stand in the way of the plaintiff if she otherwise

makes out a good case. Applying the ratio of Teva Pharmaceutic

Industries Ltd. (supra) read with Indira Sonti (supra) it can safely be

said that the cause of action for filing the present suit has arisen within

the territorial jurisdiction of Delhi. At this stage by no stretch of

imagination, where it is only a prima-facie hearing of the case, can it be

said that this Court would not have the territorial jurisdiction to entertain

the suit.

15. Having answered this question in favour of the plaintiff, the next

question for consideration is as to whether the plaintiff is entitled to the

relief prayed for by her i.e.the grant of an anti suit interim injunction.

Learned senior counsel for the plaintiff has placed reliance upon 2003

(102) DLT 822 Harmeeta Singh Vs. Rajat Aneja as also another

judgment 2013 (200) DLT 374 Pritam Ashok Sadaphule Vs. Hima

Chugh to substantiate an argument that where a foreign decree has been

obtained ex parte and the wife had not submitted herself to the

jurisdiction of that court such a foreign decree was not recognized by

Indian Courts. Forum conveniens was considered by the Delhi Court

while refusing to enforce that decree. Reliance has been placed upon

the celebrated judgment of the Apex court reported as (1991) 3 SCC 451

Y. Narashimha Rao and Others Vs. Y. Venkata Lakshmi and Another to

substantiate his argument that even if one of the conditions contained in

Section 13 of the CPC are violated, such a foreign judgment cannot be

recognized.

16. Section 13 of the CPC deals with the recognition of a foreign

judgment. It deals with the various alternatives under which a foreign

decree may not be recognized by an Indian Court; until and unless, the

foreign decree is in conformity with the public policy which is equity

and good conscience, such a decree may not been recognized.

17. Section 13 (b) is relevant. It reads herein as under:-

"When foreign judgment not conclusive.- A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except-

(a).......

(b) Where it has not been given on the merits of the case:

(c)......"

18. It clearly states that a foreign judgment which has not been given

on merits of the case will not be recognized by the Courts in India.

19. In Y. Narashimha Rao (supra), this clause had been interpreted to

mean (a) the decision of the foreign court should be on a ground

available under the law under which the parties are married, and (b) that

the decision should be result of the contest between the parties. The

latter requirement under the law under which is fulfilled only when the

respondent is duly served and voluntarily and unconditionally submits

himself/herself to the jurisdiction of the court and contests the claim, or

agrees to the passing of the decree with or without appearance. A mere

filing of the reply to the claim under protest and without submitting to

the jurisdiction of the court, or an appearance in the court either in

person or through a representative for objection to the jurisdiction of the

court, should not be considered as a decision on the merits of the case.

In this respect the general rules of the acquiescence to the jurisdiction of

the court which may be valid in other matters and areas should be

ignored and deemed inappropriate.

20. This dicta laid down by the Supreme Court clearly thus stipulates

that unless the party after service voluntarily and unconditionally

submits himself/herself to the jurisdiction of the Court and contests the

claim, or agrees to the passing of the decree with or without submitting

to the jurisdiction of the Court it should not be considered to be a

decision which was rendered on the merits of the case.

21. Learned senior counsel for the defendant has highlighted the

communication sent by the plaintiff on 11.8.2014 to the Court at

Maryland. It is submitted that this communication to the Maryland

Court where the plaintiff had asked for a dismissal of the suit pending

therein clearly supports his proposition that she has submitted herself to

the jurisdiction of the Maryland Court. He has also drawn attention of

this Court to the proceedings before the Maryland Court wherein the

presence of the plaintiff has been through his counsel on 16.12.2014 and

again on 17.12.2014 when the matter thereafter adjourned to

27.02.2015. Submission being reiterated that the plaintiff had submitted

herself voluntarily to the jurisdiction of the foreign court.

22. In the letter dated 11.08.2014, the foremost contention set up by

the plaintiff (through her attorney) was that she was not submitting

herself to the jurisdiction of the Maryland Court. Her submission was

that the parties had been married under the Hindu Marriage Act and

being residents of India and having married under the Hindu law in

India, it would be that law which would govern them. A fraud has been

played upon the Court by her husband by stating that he was a resident

of Maryland, USA when all along he was residing at Arlington, Virgina

and was never a resident of Maryland. She had accordingly prayed for

the dismissal of the petition.

23. Communication dated 11.08.2014 by no stretch of imagination

can be said to be the submission of the plaintiff to the jurisdiction of the

Court at Maryland. It is clear that the plaintiff all along was aggrieved

by the jurisdiction which had been taken over by the Maryland Court to

entertain a petition for divorce against her wife. She has lodged this

protest in the very first instance. She had reiterated that the Court at

Maryland does not have the jurisdiction to entertain a petition and she is

not submitting herself to the jurisdiction of that Court; at the same time,

she has stated that the plaintiff was playing fraud upon the Maryland

Court as he had not fulfilled the pre-requisite condition of being a

resident of Maryland for one year before filing the said petition.

24. Thus under Section 13 (b) of the CPC where a judgment has been

delivered by a foreign court; not on its merits; such a judgment will not

be recognized by the Indian Courts.

25. The principles and guidelines laid down by the courts for grant of

an anti-suit injunction were considered by the Supreme Court in Modi

Entertainment Networks (supra) Para 28 had delineated the following

principles which emerged as under:-

"28. 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 vexations 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 greed 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 non-exclusive jurisdiction of the court of their choice which cannot be treated just 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; and

(7) the burden of establishing that the forum of the 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.

26. This case was dealing with a commercial arbitration where there

was a written contract between the parties. However, the principles and

discretion to be exercised by the Court while considering a prayer for

grant of an anti-suit injunction remain the same. One aspect is that if the

injunction is declined, the ends of justice would be defeated and

injustice would be perpetuated; another aspect is the aspect of forum

conveniens; in case there is more than one forum available, the Court in

the exercise of its discretion while granting an anti-suit injunction will

examine as to which is the most appropriate forum (forum conveniens)

having regard to the convenience of the parties; it may grant anti-suit

injunction in regard to proceedings which are oppressive or vexatious or

in a forum non-conveniens.

27. The Apex Court in Modi Entertainment Networks had reiterated

that the Courts in India like Court in England are courts of law and

equity. The principles governing the grant of anti-suit injunction being

essentially an equitable relief; the Courts in India have the powers to

issue anti-suit injunction to a party over whom it has personal

jurisdiction in an appropriate case; this is because the Courts of equity

exercise jurisdiction in personam; this power has to be exercised

sparingly where such an injunction is sought and if not granted, it would

amount to the defeat of ends of justice and injustice would be

perpetuated. This coupled with the fact that the Delhi Court would be

the Court of forum conveniens as admittedly the plaintiff has never not

even for single day resided in Maryland, USA and the fact that even her

two short periods of stay in USA and she in the last period i.e. between

11.06.2013 to 03.08.2013 was met with non-cooperation from the

husband who had not even met her in that period having disregarded all

her communications; he having surrendered the lease of their house on

3.6.2014 and having moved on to a job without any information to the

plaintiff and thereafter having set up a plea that he is a resident of

Maryland only for the purpose of obtaining a relief appears to be a

litigation which is both prejudicial and vexatious to the interest of the

plaintiff.

28. The plaintiff has not submitted herself to the jurisdiction of the

Court at Maryland; she is a resident of Delhi; parties had moved

together to their matrimonial home in Arlington, Virginia. They never

stayed in Maryland; this is also not the argument of the learned senior

counsel for the defendant. It would be a forum of inconvenience for the

plaintiff to submit herself to the Court at Maryland. She having lodged

her protest by her communication dated 11.08.2013 which clearly finds

mention in para 18 of the plaint, there is also no suppression or

concealment of facts as has been argued by the learned senior counsel

for the defendant. The plaintiff is entitled to the equitable relief as

prayed for and if the proceedings are permitted to be continued in

Maryland, it would be a proceeding without hearing the plaintiff and

would undoubtedly prejudice her interest.

29. Nothing also prohibits the defendant from coming to India. At

the outset, all efforts were made for reconciliation and the parties were

asked to explore the possibility of settlement. Learned senior counsel for

the defendant had taken time to take instructions from his client as to

whether his client would be willing to come to India to mediate. The

answer was in the negative. Even if the defendant is under an H-1 Visa,

it does not necessarily means that he is prevented from travelling to

India. This has been categorically put to the learned senior counsel for

the defendant to which there was no evident answer.

30. List on 21.5.2015.

31. The plaintiff is entitled to the relief as prayed for. Proceedings

before the Maryland Court at USA fixed for 27.02.2015 will be deferred

till further orders.

INDERMEET KAUR, J

24th February, 2015 ndn