Holding

An Indian court will not grant an anti‑suit injunction against a party proceeding in a foreign court agreed upon in a non‑exclusive jurisdiction clause unless strong reasons show the foreign forum is oppressive, vexatious or a forum non‑conveniens, which were absent here.

Summary

Modi Entertainment Network and another filed a suit in the Bombay High Court for damages arising from a contract granting exclusive telecast rights for the ICC Knockout Tournament. The contract contained a clause that disputes would be governed by English law and submitted to the non‑exclusive jurisdiction of the English courts. The respondent filed a parallel suit in the English High Court for the minimum guaranteed amount. The appellants sought an anti‑suit injunction in India to restrain the respondent from prosecuting the English action, claiming the foreign suit was oppressive, vexatious and a forum non‑conveniens. A single judge granted the injunction, but the Division Bench set it aside. On appeal, the Supreme Court held that the jurisdiction clause must be given effect and that no strong reason existed to deem the English proceedings oppressive or a forum non‑conveniens; therefore the anti‑suit injunction could not be granted. The appeal was dismissed.

Issues considered

Whether a court of natural jurisdiction can grant an anti‑suit injunction when the contract provides for non‑exclusive jurisdiction of a foreign court.
Whether the English court in this case is a forum non‑conveniens, oppressive or vexatious.
Whether strong reasons exist to override the contractual jurisdiction clause.
Who bears the burden of proving that the foreign forum is inappropriate.
Application of principles of comity, ends of justice and forum conveniens in granting anti‑suit injunctions.

Legislation cited

Code of Civil Procedure, 1908

Subjects

anti‑suit injunctionjurisdiction clausenon‑exclusive jurisdictionforum non‑convenienscomityends of justicecontractual disputeinternational commercial law

Judgment

A MODI ENTERTAINMENT NETWORK AND ANR.
v.
W.S.G. CRICKET PTE. LTD. ~..

JANUARY 21, 2003

B [SYED SHAH MOHAMMED QUADRI AND ARIJIT PASAYAT, JJ.]

\
~
Anti-Suit Injunction-Grant of-Principles explained
,
f-

Anti-Suit Injunction-Contract between· parties-Disputes-Suit for
c damages in Indian Court-Other party filing action before English Court-
Court of natural jurisdiction granting anti-suit injunction against party to
suit-Restraining party from instituting and/or prosecuting suit between them
in foreign court of choice of parties-Division Bench vacating anti-suit ....
injunction-Justification of-Held: When parties have agreed to submit to
D non-exclusive jurisdiction of English Courts in accordance with English law,
intention of parties as expressed in contract to be given effect except when
strong reasons justifY disregard of contractual obligation-On facts no good
and sufficient reason made out to grant anti-suit injunction in disregard of
jurisdiction clause-Hence order of Division Bench justified
-).
E Respondent had the exclusive right to grant commercial rights
relating to an international event. rt entered into a contract with second
appellant and granted exclusive licence to telecast the ICC Knockout
Tournament (the event) on Doordarshan and to sell advertisement slots
thereon. Second appellant assigned its right to the first appellant; The
contract contained a jurisdiction clause that the contract will be governed
F by and be construed in accordance with the English law and to submit to
the non-exclusive jurisdiction of the English courts. Disputes arose between
the parties. Appellants filed a suit in Bombay High Court claiming
damages for the loss of advertising revenue due to alleged illegal threats
•
of the respondent. Respondent filed an accion in the English Court praying
G for a money decree for the minimum guaranteed ainount and taking out
writ of summons. Appellants entered appearance before the English Court
and subsequently took out motion in the Bombay High Court praying for
anti-suit injunction against the respondent to restrain it from proceeding ..+
with action brought by it in the English Court. Single Judge granted anti-
suit injunction against the respondent. Division Bench set aside the order
H
480
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKETPTE. LTD. 481

granting anti-suit injunction. Hence the present appeal. A
Appellants contended that the Indian Court was a natural and
appropriate forum; that the Single Judge correctly recorded the finding
that the action initiated by the respondent in the English Court was
vexatious and oppressive; that the Division Bench dismissed the motion
erroneously taking the view that only if a party commenced litigation in B
a Foreign Court in breach of a contract stipulating that the Indian Courts
would have exclusive jurisdiction, could an anti-suit injunction be granted;
that the English Court is a forum non-convenience as the appellants have
to take all the witnesses to London which would cause great inconvenience
and economic loss and unless the Court grants injunction against the C
respondent, it would result in disastrous consequences to the appellants;
that the English Court had no nexus whatsoever with the parties or the
subject-matter; and that the contractual stipulation for non-exclusive
jurisdiction of the English Courts would not preclude the Indian Courts
from granting anti-suit injunction.
D
Respondent contended that the primafacie finding of the Single Judge
in regard to the action of the respondent in the English Court being
vexatious and oppressive would not bind the Judge himself at the stage of
final hearing of motion much less would it bind the Division Bench in
Appeal; that the parties had clearly stipulated in the contract for resolution
of their disputes in accordance with the English Law and in the English E
Court, therefore, the appropriate forum would be the English Court; that
it being the court of choice of the parties no injunction could be granted ·
against the respondent from prosecuting the case before that Court; that
the foreseeability test pleaded by the appellants was not relevant; that the
parties had chosen neutral forum in preference to natural.forums-Indian F
• Courts and Singapore Courts; that in any event when a party had
approached an agreed jurisdiction under a contract, whether exclusive or
non-exclusive, the other party could not be allowed to contend that the
suit so filed as vexatious and oppressive; and that only in extra-ordinary
and unforeseen circumstances which would justify a party to claim relief
from its bargain of non-exclusive jurisdiction clause that an anti-suit G
injunction could be claimed but certainly not on the ground of convenience
such as expenses and hardship of getting the witnesses to the agreed
neutral forum.

Dismissing the appeal, the Court
H
482 SUPREME COURT REPORTS [2003] l S.C.R.

A HELD 1.1. In exercising discretion to grant an anti-suit injunction
the court must be satisfied of the following aspects:-(a) the defendant )t

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 of the court in which the commencement or continuance
B of action/proceeding is sought to be restrained-must be borne in mind .
. [500-E, FJ

1.2. 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
C 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. (500-G, HJ -r
1.3. Where jurisdiction of a court is invoked on the basis of
D 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 facts and
circumstances of each case. [501-A-B)
E
1.4. 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 jurisdicti~n 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 i~ an exceptional. case for good
F and sufficient reasons, with a view to prevent injustice in Circumstances
such ·as whieh permit a contracting ~arty.· to be relieved of the burden of
the contract; or since the date of the confract the circumstances or
subsequent ev.ents have made it impossible for the party seeking injunction
. to prosecute the. case in the court. of choice. because the essence of the
G jurisdiction ofthe court does not exist or because or. a vis major or force
majeure and the like. [501-B-DJ

1.5 • Where parties have agreed, under anon-exclusive Jurisdiction 1- -
clause, to approach a neutral foreign (orum and be governed by the law
applicable to it for the resolution of their disput~s arising under the
H contract, ordinarily no anti'"'.suit injunction will be granted in regard to
MODi ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD. 483

proceedings in such a forum co'111eniens and favoured forum as it shall be A
presumed that .the parties have thought over their convenience and all
other relevant factors before submitting to. non-exclusive jurisdiciion of
the court of their choice which.cannot be treated just an alternative forum.
1501-E-FJ

1.6. A· party to the contract containing jurisdiction clause cannot B
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 th.e 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 ·c
be said to beforum non-co'11!eniens. (501-F-H(

I.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. (502-AJ

2.1. In the instant case, a plain reading of the jurisdktion clause
D
shows that the parties have agreed that their contract will be governed
by and be construed in accordance with English law and they have also
agreed to submit to the non-exclusive jurisdiction of English Courts·
(without reference to English conflict of law rules). Recitals in regard to
submission to exclusive or non-exclusive jurisdiction of a court of choice E
in an agreement are not .determinative. However, as both the parties
proceeded on the basis that they meant non-exclusive ju,risdiction of the ·
English Courts; the Court is relieved of the interpretation of jurisdiction
clause. Normally, the court will give effeCt to the intention of the parties
as expressed in the agreement entered into by them except when strong
reasons justify disregard of the contractual obligations of the parties. F
1502-C-EJ

2.2. The Single Judge proceeded on the prima facie finding ihat the
proceedings in the English Courts would ·be oppressive and vexatious.
Those findings, recorded at the stage of passing an ad-in•erim order, would G
not bind the same Judge much less they would bind the appellate Court
or the parties thereto at subsequent stage of the same proceeding because
it cannot operate as issue estoppeL It cannot he laid down as a general
principle that once the parties have agreed to submit to the jurisdiction
of a foreign court, the proceeclings or the action brought either in the court
of natural jurisdiction or in the court of choice will per se he oppressive H
484 SUPREME COURT REPORTS (2003) I S.C.R.

A or vexatious. It depends upon the facts of each case and the question
whether the proceedings in a Court are vexatious or oppressive has to be
decided on the basis of the material brought before the Court. Having
perused the plaints in both the suits and the contract that the proceeding
in the English Court for recovery of the minimum guaranteed amount
B under the contract cannot, at this stage, be said to be oppressive or
vexatious. (503-C-FJ

2.3. It is true that the courts would be inclined to grant anti-suit
injunction to prevent breach of contractual obligation to submit to the
exclusive or non-exclusive jurisdiction of the court of choice of the parties
C but that is not the only ground on which anti-suit injunction can be
granted. As is apparent the appellants brought the suit in the court of
natural jurisdiction for adjudication of the disputes arising under the
contract for which the parties have agreed to submit to the non-exclusive
jurisdiction of the English Court in accordance with English law though
the English court has no nexus with the parties or the subject matter and
D is not the natural forum. But then the jurisdiction clause indicates that
the intention of the parties is to have the disputes resolved in accordance
with the principles of English law by English Court. Unless the appellants
show good and sufficient reasons, the intention of the parties as evidenced
by their contract must be given effect to. Even when the appellants had
E filed the suit earlier in point of time in the court of natural forum and the
respondent brought action in the English Court which is the agreed forum
or forum of the choice having regard to the expressed intention of the
parties, no good and sufficient reason is made out to grant anti-suit
injunction to restrain the respondent from prosecuting the English action
as such an order would clearly be in breach of agreement and the court
F will not, except when proceedings in foreign court of choice result in
. perpetuating injustice aid a party to commit breach of the agreement.
(501-F-H; 504-A, BJ

2.4. The submission that the English Court is forum non-conveniens
in view of the alleged breach of the agreement by the respondent in the
G manner not foreseen, is far from being a good and sufficient reason to
ignore the jurisdic;tion clause. Even otherwise the fact that the parties had
agreed to resolve their disputes arising under the agreement, shows that
they bad foreseen possible breach of agreement by any of the parties and
provided for the resolution of the disputes which might arise therefrom.
H In the context; the for~eeability test would take in circumstances which '>-
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD. 485

render approaching the forum of choice merging with other court and A
losing its identity or a vis major etc., which would make it impossible for
the party seeking anti-suit injunction, to prosecute the case before the
forum of choice. The foreseeability test cannot be extended to the manner
of breach of the contract so as to turn the forum of choice into forum non-
conveniens. Circumstances such as comparison of litigation expenses in B
England and in India or the hardship and incurring of heavy expenditure
on taking the witnesses to the English Court, would be deemed to have
been foreseen by the parties when they agreed to submit to the jurisdiction
of the English Court in accordance with the principles of English law and
the said reasons cannot be valid grounds to interdict prosecution of the
action in the English Court of choice. (504-C-F( C
2.5. The other submission that English Court has no connection with
either of the parties or the subject matter and it is not a court of natural
jurisdiction, can be taken note of when strong reasons are shown to
disregard the contractual obligation. It cannot be a good and sufficient
reason in itself to justify the court of natural jurisdiction to interdict action D
in a foreign court of choice of the parties. Therefore, there is no valid
reason to grant anti-suit injunction in favour of the appellants, in disregard
of jurisdiction clause, to restrain the respondent from prosecuting the case
in the foreign forum of the choice of the parties-the English Court.
(504-G, H; 505-A) E

Oil and Natural Gas Commission v. Wesiern Company of North America,
(1987) 1 SCC 496 and British Indian Steam Navigation Co. Ltd. v.
Shanmughavilas Company Industries & Ors., (1990) 3 SCC 481, referred to.

Spiliada Maritime Corporation v. Cansulex Ltd., (1986) 3 All. ER 842;
SN/ Aerospatiale v. Lee Kui Jak & Anr., (1987) 3 All. ER 510; Carron Iron
F
Company v. Maclaren, )1855) 5 HLC 416; Castanho v. Brown & Root (U.K.)
Ltd. & Anr., )1981) Appeal Cases 557; C.S.R. Ltd. v. Cigna Insurance
Australia Ltd., [1997) (189) C.L.R. 345; Airbus Industries GIE v. Patel &
Ors., (1998) 2 All ER 257; British Aerospace Pie v. Dee Howard Co., (1993)
1 LLR368; Donohue v. Armco Inc and Ors., (20021 l All ER 749 andSABAH G
Shipyard (Pakistan) Ltd. v. (/) Islamic Republic of Pakistan (2) Karachi
Electrics Supply Corporation Ltd., (2002) (2002) EWCA Civ 1643, referred
to.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 422 of
2003. H
486 SUPREME COURT REPORTS (2003) I S.C.R.

A From the Judgment and Order dated 1.4.2002 of the Mumbai High
Court iri:A.No: 287 of2002. · '

Ashok H. Desai and Aspi Chinoy, Mahesh Agarwal, C'. Dhond, Rishi
. Agrawala, Manll Krishnan: and E.C Agrawala- for the Appellant.

·B ·Iqbal Chagla, Anil Menon, Ravi Kadam, S. Uday Kumar Sagar,
!Vis. B.ina Madhavan, Prasanth P and Ms. Meena C.R. ofM/s. Lawyer's Knit
& Co. for the Respondent;

The Judgment of the C~urt was deiivered by

C. SYED SHAH MQHAl\:fMED QUADRI, J. Leave is granted.

This appeaUs from the judgment and order dated April I, 2002 made
by a Division Bench of the High Court of Judicature at Bombay, in Appeal
. No. 287 of 2002; ~!lowing the appeal filed by the resp~ndent and setting
· aside_ the order of the learned' Single Judge granting anti-suit injuctions against
D the respondent on the motion ·of the appellants .
.' . . . -.
. The plaintiffs in Suit No'. 2422 of 2001 on the file of the High Court
. of Judicature at Bombay (ordinary original civii jurisdiction) are the appellants
and the- defe~dani therein' is the respondent in this appeal.
~ . The short point that arises for consideration is: whether the Division
Bench of the High Court erred in vacating the anti-suit injunction granted by
a learned Single Judge restraining the respondent from proceeding with the
action between the same parties pending in the English Court, the forum of
their choice. It involves examination of the prineiple governing grant of an
anti-suit injunction by a court of natural jurisdiction against a party to a suit
F before it restraining him from instituting and/or prosecuting the suit, between
the same parties, if instituted, in a foreign court of choice of the parties.

It will be appropriate to note, in brief, the factual background in which
the aforesaid question has arisen. The International Cricket Conference (ICC)
G organised a tourriament 'ICC Knockout Tournament' (referred to as, 'the
Event') in Kenya between October 3 and 15, 2000. The respondent had the
exclusive right to grant commercial rights relating to the Event. On September
21, 2000, an agreement was entered irito between the second appellant and )"
the respondent granting exclusive licence to telecast the Event on Doordarshan
and
.· '
to sell advertisement
.
slots· thereon.
.
The second appellant
.
assigned its
H right under the- said agreement to the first appellant on September 22, 2000.

·' .·
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD. [S.S.M. QUADRJ, J.l 487

The agreement, inter alia, provided that the licence granted thereunder was A
restricted to exhibiting the Feed by terrestrial free to air television on
Doordarshan only and the satellite broadcast licence for India was granted to
"ESPN-Star Sports" (for short, 'ESPN'); the appellants were to pay a minimum
guaranteed amount of USD 35 lakhs (Rs. 15 crores); if the revenue derived
by the appellants exceeded the aforementioned sum the parties would share B
the excess amount in the manner provided in the agreement. The Doordarshan
used the PAS-4 Satellite. to transmit the signal through its terrestrial
transmitters. Soon after the commencement of the telecast the respondent
registered a complaiiit with the Doordarshan that the signal was being received
in the Middle East which would amount to breach of contract between the
parties and violation of the licence granted to Middle East licensee, called C
upon the appellants to rectify the same and threatened that the Feed to the
Doordarshan would be discontinued. The response of the Doordarshan that
·)' it was nothing but a natural spill .over and that under the agreement such spill
over of other satellite signals would not constitute a breach, was communicated
to the respondent. However, the respondent was not satisfied with that
explanation and kept on repeating the threat that if the Doordarshan did not .D
switch from the PAS-4 satellite to the INSAT satellite it would discontinue
the signal Feed to Doordarshan. It appears that during the period of the
telecast nothing was done by the respondent pursuant to the threats. Even so,
the appellants complained that on account of the open threats of the respondent
the advertisers who had committed their advertisements on Doordarshan, E
pulled their advertisements out and switched them to ESPN and that caused
tremendous loss of revenue to them. It was also alleged that diversion of
advertisements from Doordarshan to ESPN enabled the respondent to benefit
from the revenue sharing arrangement it has with ESPN. To resolve the
disputes generated by cross allegations made by the parties against each other
some negotiations were held and pursuant thereto the appellants paid, from F
time to time between December 2000 and February 200 I, a sum of USD
7,13,714 to the respondent. They also addressed letters to the respondent
seeking time till May 200 I to make payment of the balance amount.

While the matter stood thus, the appellants received a notice dated May G
3, 2001 from the solicitors of the respondent demanding full minimum
guaranteed amount. Anyhow, on May 9, 2001, the appellants filed a suit in
the Bombay High Court claiming, inter a/ia, damages for the loss of advertising
revenue due to alleged illegal threats of the respondent. On November 22,
2001, the respondent also filed an action in the High Court of Justice Queen's
Bench Division (referred to as 'the English Court'), praying for a money H
488 SUPREME COURT REPORTS [2003] I S.C.R.

A decree for the minimum guaranteed amount and took out writ of summons,
calling upon the appellants to notify the English Court of their intention to
contest jurisdiction; it was also stated therein that failure to do so would
amount to submitting to jurisdiction of the English Court and rendering them
liable to a default judgment. The appellants entered appearance before the
English Court on January 9, 2002 and sought time till January 31, 2002.
B Despite this move, on January 15, 2002, the appellants took out motion in the
Bombay High Court praying for anti-suit injunction against the respondent in
regard to the action in the English Court on the ground that the Indian Court
was a natur~I forum for the adjudication of the dispute and that continuance
of the proceedings in the English Court would, on the facts of the case, be
C vexatious and oppressive. The respondent contested the motion relying on
the non-exclusive jurisdiction clause in the contract.

After hearing both the parties, a learned Single Judge of the Bombay
High Court granted an ad-interim injunction on January 30, 2002, in terms
of clause (a) and o.rdered notice of motion. returnable within six weeks.
D Aggrieved by the said order of the learned Single Judge, the respondent filed
an appeal before the High Court. With the consent of the parties the Division
Bench of the High Court which heard the appeal, disposed of the notice of
motion itself finally along with the appeal by order dated April 1, 2002. The
Division Bench set aside the order of the learned Single Judge, dismissed the
E motion of the appellants and thus allowed the appeal. It is against that judgment
and order of the Division Bench of the High Court that this appeal is directed.

Mr. Ashok H. Desai, learned senior co.unsel appearing for the appellants,
contended that the Indian Court was a natural and appropriate forum; the
principle for granting anti-suit injunction was correctly noticed by the learned
F Single Judge who recorded the finding that the action initiated by the
respondent in the English Court was vexatious and oppressive; the Division
Bench without disturbing the s·aid finding dismissed the motion erroneously
taking. the vfow that only if a party commenced litigation in a Foreign Court
in breach of a contract stipulating that the Indian Courts would have exclusive
juris~iction, could an anit-suit injunction be granted. He subinitted that reliance
on Rule 32(4) of Dicey & Morris 'The Conflict of Laws' by the Division
Bench was misconceived and that the correct rule applicable was Rule 31(5)
which referred to the decision of the House of Lords in the case of Spiliada
· Maritime Corporation v. Cansulex Ltd., [1986] 3 All. ER 842 and of the
. Privy Council in SN!Aerospatiale v. Lee Kui Jak & Anr., [1987] 3 All.ER.
H 510. In his submission the English Court is a forum non-conveniens as the

(_
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKETPTE. LTD. [S.S.M. QUADRI, J.]489

appellattts have to take all the witnesses to London which would cause great A
inconvenience and economic loss and unless the court grants injunction against
the respondent, it would result in disastrous consequences to the appellants.
He further contended that the appellants could not have foreseen that the
respondent who was contractually bound to supply Feed for telecast only
through Doordarshan, would thereafter jeopardise the appellants' advertising B
revenue by publicly threatening to discontinue the signal Feed to Doordarshan
on the alleged ground of spill over of the Doordarshan signal beyond India.
He vehemently contended that the natural and appropriate forum which had
jurisdiction to grant anti-suit injunction were Indian Courts so the Division
Bench erred in dismissing the motion. He argued that the English Court had
no nexus whatsoever with the parties or the subject-matter and that the C
contractual stipulation for non-exclusive jurisdiction of the English 'courts
(without reference to English conflict of law rules) would not preclude the
Indian 2 Courts from granting anti-suit injunction.

Mr .. Iqbal Chagla, the learned senior counsel for the respondent, argued
that the prima facie finding of the learned Single Judge in regard to the D
action of the respondent in the English Court being vexatious and oppressive
would not bind the learned Judge himself at the stage of final hearing of
motion much less would it bind the Division Bench in appeal. According to
the learned counsel the suit was filed in India to foreclose the right of the
parties to approach the court of their choice, namely, the English Court. He E
pointed out that the parties had clearly stipulated in the contract for resolution
of their disputes in accordance with the English Law and in the English
Court, therefore, the appropriate forum would be the English Court. In any
event, it being the court of choice of the parties no injunction could be
granted against the respondent from prosecuting the case before that Court.
It was submitted that the respondent continued the Feed during the stipulated F
period; the appellants had the advantage of telecasting the Event and receiving
the benefit of the advertisement slots fully; they made payments till the end
of February; and, therefore, they could not be allowed to evade the liability
under the contract by seeking injunction. It was also submitted that the
foreseeability test pleaded by the appellants was not relevant; the parties had G
chosen neutral forum in preference to natural forums-Indian Courts and
Singapore Courts. In any event, submitted the learned counsel, when a party
had approached an agreed jurisdiction under a contract, whether exclusive or
non-exclusive, the other party could not be allowed to contend that the suit
so filed was vexatious and oppressive; only in extra-ordinary and unforeseen
circumstances which would justify a party to claim relief from its bargain of H
490 SUPREME COURT REPORTS [2003) I S.C.R.

A non-exclusive jurisdiction clause that an anti-suit injunction could be claimed
but certainly not on the ground of convenience such as expenses and hardship ),I,

of getting the witnesses to the agreed neutral forum.

The Courts in India like· the Courts in England are courts of both law
.and equity. The principle governing grant of injunction-an equitable relief-by
B a court will also govern grant of anti-suit injunction which is but a species
of injunction. When a court restrains a party to .a suit/proceeding before it
from instituting or prosecuting a case in anoth~r court including a foreign 'f-.
court, it is called anti-suit injunction. It is a common ground that tl;te Courts
in India have power to issue anti-suit injunctfon to a party over whom it has
C personal jurisdiction, in appropriate case. This is because courts of equity
exercise jurisdiction in personal. However, having regard to the rule of comity,
this power will be exercised sparingly because. such an injunction though
directed against a person, in effe~t causes interference in the exercise of 'f
jurisdiction by another court.

D In regard to jurisdiction of courts· under the Code of Civil Procedure
(CPC) over a subject-matter one or more courts may have jurisdiction to deal
with it having regard to the location of .immovable property~ place ofresidence
or work of a defendant or place where Ca\lSe of action has arisen.· Where only
one Court has jurisdiction it is said to have exclusive jurisdiction; where
more courts than one have jurisdiction over a subject-matter, they are cailed -¥
E courts of available or natural jurisdiction. The growing global commercial
activities gave rise to the practice of the parties to a ·contract agreeing
beforehand to approach for resolution of their disputes thereunder, to either
any of the available courts of natural jurisdiction and thereby create an
exclusive or non-exclusive jurisdiction in one of the available forums or to
F have the disputes resolved by a foreign court of their choice as a neutral
forum according to the law applicable to that court. It is a well-settled principle
that by agreement the parties cannot confer jurisdiction, where none exists,
on a court to which CPC applies, but this principle does not apply when the
parties agree to submit to the exclusive or non-exclusive jurisdiction of a
foreign court; indeed in such cases the English Courts do permit invoking
G their jurisdiction. Thus, it is clear that the parties to a contract may agree to
have their disputes resolved by a Foreign Court termed as a 'neutral court'
or 'court of choice' creating exclusive or non-exclusive jurisdiction in it.

We shall now refer to Rule 32(4) on which reliance is placed by the
High Court and Rule 31(5) on which le.amed counsel for the appellants relies .
..H These Rules are formulated in the Conflict of Laws by Dicey and Morris;
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD. [S.S.M. QUADRI, J.] 49 J

(13th Edition) on the basis of judgments of the House of Lords and the Privy A
,, Council. It would, therefore, be useful to quote them here.

"31(5). An English Court may restrain a party over whom it has
personal jurisdiction from the institution or continuance of proceedings
in a foreign court, or the enforcement of foreign judgments, where it
is necessary in the interests of justice for it to do so ." B
"32(4). An English Court may restrain a party over whom it has.
,.
personal jurisdiction from the institution or continuance of proceedings
in a foreign court in breach of a contract to refer disputes to an
English (or, semble, another foreign) court."
c
A careful perusal of these Rules makes it clear that clause (5) of Rule
3 I deals with a case not covered by a jurisdiction agreement whereas clause
(4) of Rule 32 deals with a case involving jurisdiction agreement. Indeed, the
learned authors themselves in para 12.123 state as follow;:

·"The general principles upon which an English Court may order a .· D
party who is subject to its personal jurisdiction not to institute, or to
discontinue, proceedings in a foreign court have been examined above
·[clause (5) of Rule 31]. But where the basis for the exercise of the
court's discretion is that the defendant has bound himself by contract
not to bring the proceedings which he threatens to bring, or has E
brought, in the foreign court, the principles which guide the exercise
of discretion of the court are distinct from those which were examined
under clause (5) of Ru[e 31."

Thus, it is clear that the principles governing the .exercise of discretion by the
court to grant anti-suit injunction against a person amenable to the jurisdiction F
where by contract the defendant has bound himself not to bring the proceedings
which he threatens to bring or has brought in the foreign court, are different
from the principles laid down in Rule 31(5) which deals with cases in general
where an English Court may restrain a party over whom the court has personal
jurisdiction from the institution or continuance of the proceedings in a foreign G
court. The test for issuance of the anti-suit injunction to a person amenable
to the jurisdiction of the court in person has been varying; first it was 'equity
and good conscience' as could be seen from the decision of the House of
Lords in Carron Iron Company v. Maclaren, (1855) 5 HLC 416. The test
later adopted was 'to avoid injustice' [See: Casta11ho v. Brown & Root (U.K.)
Ltd & Anr., (1981) Appeal .cases 557. The test adopted in the recent cases H
492 SUPREME COURT REPORTS [2003) I S.C.R.

A is whether the foreign proceedings are "oppressive or vexatious" SN/
Aerospatiale 's case (supra). Even about this test it is commented, "

"In most decisions, the courts have considered whether the foreign
proceedings were vexatious or oppressive. Historically, since the 19th
century, these terms were used in the exercise of the court's jurisdiction
B whether or not to grant anti-suit injunctions. But, in the context of
stay of proceedings on ground of another forum being the more
appropriate forum, these terms were effectively abolished by the House
of Lords in Macshannon v. Rockware Glass ltd., (1978) I All ER
625. This was because of the moral connotations attached to these
c words and the difficulty for the defendant to prove that there was
something wrong in the character of the plaintiff. Although Lord
Goff explained, mSN/ Aerospatiale v. lee Kui Jak & Anr., (1987)
3 All. ER 510, that these words could have different meaning in
different contexts, he was inclined, in Airbus Industries GIE v. Patel
& Ors., (1998] 2 All ER 257, to agree, albeit obiter, with Judge
D Sopinka in Amchem Products Inc v. Workers Compensation Board,
(1993] 102DLR4th 96, who preferred to use, simply, 'ends of justice'.
However, Lord Goff did not expressly abandon these words."*

These expressions are not clearly defined but in C.S.R. ltd. v. Cigna Insurance
Australia ltd, (1997) 189 C.L.R. 345, the High Court of Australia used them
E in the sense "only if there is nothing which can be gained by them over and
above what may be gained in local proceedings". The Supreme Court of
Canada adopted the test of the requirement of "the ends of justice". The
essence or the ultimate objective is to enquire how best the interests of justice
will be served; whether grant of anti-suit injunction is necessary in the interests
F of justice. However, in a case where a jurisdiction agreement exists it is not
necessary, in all cases, to show that foreign proceedings are vexatious, .s...
oppressive or that the local court is a natural forum for the claim and there
is no obligation upon the claimant to seek relief from foreign court first. The
case on hand is a little different from the category which is subject of
formulation in Rule 32(4). Here the appellants who are parties to the contract
G containing a non-exclusive jurisdiction clause of English Court and resolution
of disputes in accordance with the principles of English law, are seeking anti-
suit injunction against the respondent to restrain it from proceeding with the )..
action brought by it in English Court.

H *Modern Admiralty Law by Aleka Mandaraka-Sheppard (First Edition at page 275) ..
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKETPTE. LTD. [S.S.M. QUADRI, l.J 493

Before endeavouring to discern the _principles applicable to the type of A
the case on hand, we may with advantage refer to the cases cited at the Bar.

In Oil and Natural Gas Commission v. Western Company of North
America, [I 987] I SCC 496, this Court considered the question of granting
anti-suit injunction. The appellant, Oil and Natural Gas Commission, entered
into a drilling contract with the respondent Western Company of USA. B
Pursuant to the contract the parties referred their disputes to arbitration,
governed by the Indian Arbitration Act, I 940. A non-speaking award was
made which was followed by supplementary award without affording any
hearing to the parties. At the instance of the foreign company the awards
were filed in the Bombay High Court. But thereafter the foreign company C
filed a plaint in the US District Court, New York, seeking an order confirming
the awards and a judgment for payment of interest till the date of judgment
and costs. The ONGC filed an application under the Indian Arbitration Act
for setting aside the awards of the umpire in the Indian Court and further
prayed for an interim anti-suit injunction restraining the foreign company
from proceeding further with the plaint filed in the US Court. At the initial D
stage an interim injunction was granted by a learned Single Judge of the High
Court but the same was vacated after contest. From the said order an appeal
was taken to this Court. It was held by this Court that when it was necessary
or expedient to do so or when the ends ofjustice so required, the High Court
had undoubted jurisdiction to grant such an_ injunction and that it would be E
unfair to refuse the restraint order because the action in the foreign court
would be oppressive in the facts and circumstances of the case. It was pointed
out that although the Supreme Court would sparingly exercise its jurisdiction
to restrain a party from jlrcce~ing further with an action in a Foreign Court,
that case was one of those rare cases where the Court would be failing in its
duty if it hesitated to grant the order of injunction. It was observed that since F
under the contract the parties were governed by the Indian Arbitration Act,
and _as such the Indian Courts had exclusive jurisdiction to determine the
validity and enforceability of the awards, the American Court had no
jurisdiction in that behalf. The appellant invoked the jurisdiction of the New
York Court to pronounce on the same question which was required to be G
pronounced upon by the Indian Court and if the restraint order was not
granted serious prejudice would be occasioned and a party violating the very
arbitration clause on the basis of which the award had come into existence
would also secure an order enforcing the award from a foreign court. However,
it may be pointed out that in that case there was no stipulation agreeing to
non-exclusive jurisdiction in the Foreign Court. H
/
494-" SUPREME -COURT RiP()R~-$° (2003) l S.C.R.

A· In British Indian Steam Navigatio11 Co. Ltd: v. Siu;m;,,ugh~i/as .Cashew
lndustires & Ors., [1990) 3 SCC-48J,.th~_resp~~d.entpurchased froi:n East
Afric.a a specified quantity of raw cashewn~ts ~hich were·:shipped .in a vessel
.chartered by the appellant-conipany:.in~orporat~d in ·England. The bills of
lading incorporated a clause to the effect. that the contract evidenced ·by it
shall be governed by English law and disputes deter.mined in ~g.land or, at
B . the option of the carrier, "at the port 'of de~tiriation according· to English law
to the exclusion of the jurisdiction of th.e c,otirts of.ariy oth~r c~untry: There
:a
· was short supply of cashewntits 'so· the. first respo~dent fil~d. .~uit in the
Court ·of Subordinate Judge, Cochin;. seeking ·damages. for the 'short supply.
The appellant defe~ded the suit on· th~ ground that it wasa me~e charterer of
C the vessel and not the owner and that as per the bills of lading the court at
Cochin had no jurisdiction and only the English Courts had jurisdiction. The
suit was dismissed by the trial court, so also the appeal of the appellant by
the High Court. On further appeal to this Court, it was held that for purposes
of jurisdiction the action of the first respondent was an action in personam
in Private International Law and that such action might be decided upon the
D parties themselves. The chosen court may be a court in the country of one
ot both the parties, or it may be a neutral forum. The jurisdiction clause may
provide for submission to. the courts of a particular country or to a court ·:"!

identified by a formula. It is a question of interpretation, governed by'the
. proper law of the contract,. whether a jurisdiction clause is exclusive or ~oli-
E .· exclusive, or whether the claim which is the subject-matter of the action falls
within' its terms. If there is no express choice of the prop~r law of~e c9ntract,
the law of the coiintryofthe chosen court will usually,;butnQt favariably, b~
~~~~ ' ' .

. In SN/ Aerospatiale 's case supra, the :pfivy ·Council laid down· the
·F pri~dple to· b¢ ·(lpplied ·by a Court in deciding whether to restrain for~ign
proceedings. They are as·follows: · · ; · · · ·

"The principles ~pplicable to the grant by an English 'court of an
injurictfon to restrain the. co~mencenie~t or continuance ofproc~edlngs
in a foreignjurisdiction were not the same as those appficable to the
G grant of.a.stay of English proceedings in favour of a more appropriate
foreign forum,. and where a remedy: for a particular wrong was
available both in an English Court and a foreign court the English
Court would normally only restrain the plaintiff from ·pursuing the
foreign proceedings if it would be vexatious or oppressive for him to
do so.".
H
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE.LTD. [S.S.M. QUADRI, J.] 495

In that case, a passenger in a helicopter was killed when it crashed in Brunei. A
,.' The helicopter was manufactured in France by a French Company which had
a subsidiary in Texas to whom the helicopter was sold, At the time of the
crash, the helicopter was owned by a English company and operated and
serviced by its Malaysian subsidiary un.der contract to a Brunei subsidiary of
an international oil company. The widow of a passenger tiled suits against
the defendants in both Brunei and Texas. The defendants applied in Brunei B
for an injunction restraining the plaintiffs from continuing the Texas
proceeding. The Trial Court did not grant injunction. In the Court of Appeal
both sides agreed to accept that in· any trial in Texas the liability of the

- defendants would be determined according to the law of Brunei. The Appeal
Court held that Texas had become the natural forum by reason of the pre-trial
discovery and in that forum the case could be more suitably tried, therefore,
it dismissed the appeal. On further appeal to the Privy Council, it was held
that Brunei was the natural forum at the time of the commencement of the
c

proceedings because the fatal accident had occurred there, the deceased and
the plaintiffs were resident there and the Jaw governing the claim was the law
of Brunei and there was nothing to connect the action with Texas, and pre- D
trial discovery and other steps taken by the attorneys in Texas would not
change its position and had not made Texas the natural forum. The Court in
Brunei remained the natural forum for the action and it would be oppressive
'!' for the plaintiffs to proceed in Texas because the defendants might well be
unable to pursue in those proceedings their own contribution claim against E
the Malaysian company which serviced and operated the helicopter. The
appeal was thus allowed. Though, in that case also there was no jurisdiction
agreement for resolution of disputes the discussion suggests that a suit in
breach of an exclusive jurisdiction clause is in itself not conclusive of being
'vexatious and oppressive'. It will be useful to refer to the following
observations of Lord Goff: F
A

"In the opinion of their Lordships, in a case such as the present
where a remedy for a particular wrong is available both in the English
(or, as here, the Brunei) court and· in .a foreign court the English (or
Brunei) court will, generally speaking, only restrain the plaintiff from
pursuing proceedings in the foreign court if such pursuit would be G
vexatious or oppressive. This presupposes that, as a general rule, the
English or Brunei court must conclude that it provides the natural
forum for the trial of the action, and further, since the court is
concerned with the ends of justice that account must be taken not
only of injustice to the defendant if the plaintiff is allowed to pursue H
496 SUPREME COURT REPORTS (2003) I S.C.R.

A the foreign proceedings, but also of injustice to the plaintiff if he is
not allowed to so. So, as a general rule, the court will not grant an ~
injunction if, by doing so, it will deprive the plaintiff of advantages
in the foreign forum of which it would be unjust to deprive him . " \.----

In regard to the test laid done in this case, in .the Oxford Journal of
B Legal Studies*, Vol. · J7, it is rightly commented:

"The focus is on the interests of the parties not just the appropriateness )t,

of the forum. Injunctions will henceforth be available only on a more
limited basis; but that basis expressly balances both the fairness to the
parties and the naturalness of the forum. It is open, sufficiently narrow
c in scope, even-handed and fair. In short, an entirely suitable
contemporary test."

In Spiliada Maritime 's case supra, the House of Lord laid down the
following principle:
D
"The fundamental principle applicable to both the stay of English
proceedings on the ground that some other forum was the appropriate
forum and also the grant of leave to serve proceedings out of the
jurisdiction was that the court would choose that forum in which the
case could be tried more suitably for the interests of all the parties
E and for the ends of justice. "

The criteria to determine which was more appropriate forum, for the purpose
of ordering stay of the suit, the court would look for that forum with which
t
the action had the most real and substantiai connection in terms of convenience
or expense, availability of witnesses, the law governing the relevant transaction
F and the places where the parties resided or carried on business. If the court
J....
concluded that there was no other available forum which was more appropriate
than the English Court it would normally refuse a stay. If, however, the court
concluded that there was another forum which was prima facie more
appropriate, the court would normally grant a stay unless there were
circumstances militating against a stay. It was noted that as the dispute
G
concemirig the contract iri which the proper law was English law, it meant
that England wa5 the appropriate forum in which the case could be more
suitably tried. )-

• Recognition of Foreign Judgments at Common Law -The Anti-Suit Injunction Link by
H Jonathan Harris.
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE LTD. [S.S.M. QUADRI, J.] 497

In Airbus lndustires GIE v. Patel & Ors., (1998) 2 All ER 257, some A
British citizens of Indian origin travelled in an Airbus-320 aircraft when it
7' crashed at Bangalore airport. They commenced proceeding in Texas against
the plaintiff-company. A similar claim was made by the American claimants
in Texas court. The plaintiffs obtained a declaration from the City Civil
Court, Bangalore that the defendants were not entitled to proceed against B
them in any court of the world other than in Bangalore, India. Thereafter,
they approached the English Court to enforce the judgment obtained from the
Bangalore court and to obtain an injunction restraining the defendants, who
were resident in England, from continuing their action in Texas on the grounds
that the pursuit of that action would be contrary to justice and/or veratious
or oppressive. The learned Judge at the first instance dismissed the application C
but the Court of Appeal allowed the plaintiffs appeal and granted injunction
prayed for. On appeal of the defendants, the House of Lords held that as a
general rule, before an anti-suit injunction could be granted by an English
Court to restrain a person from pursuing proceedings in a foreign jurisdiction,
comity required that the English forum should have a sufficient interest in,
or connection with, the matter in question to justify the indirect interference D
with the foreign couit which such an injunction entailed. However, in cases
where the conduct of the foreign state exercising jurisdiction was .such as to
deprive it of the respect normally required by comity, no such limit was
required in the exercise of the jurisdiction to grant an anti-suit ·injunction.
Since, in the instant case, the English Court had no interest in, or connection E
with the matter in question the Court could not grant injunction sought as it
would be inconsistent with the principles of comity. The injunction granted
by the Court of Appeal was set aside and the appeal of the defendants was
allowed. Two aspects underlying this decision are worth noticing - the first
is the requirement of ends of justice an~ the second is respect for other
court's jurisdiction (comity). F
British Aerospace Pie v. Dee Howard Co. (1993) I LLR 368, deals
with stay of English action. In that case, a British Company (BAe) entered
into an agreement with an American Company (DHC) to provide assistance
and information in connection with a ;e-engining programme which it was G
undertaking. It was provided that the agreement should be governed by and
be construed according to the English law and that the courts of law in
England should have jurisdiction to entertain any action in respect thereof.
The DHC suspended further work on the re-engining programme claiming
that the BAe failed to carry out its obligation under the agreement. The DHC
initiated action in Texas State Court. After service of notice of that action the . H
498 SUPREME COURT REPORTS [2003) l S.C.R.

A BAe applied to the American Court to dismiss the proceedings in view of the
jurisdiction clause in the agreement. The BAc also initiated proceedings in
English Court duly impleading the parent company (Alenia) of the DHC, ~

with the leave of the Court. while, so, the DHc applied to the English Court
for the following reliefs: (i) to set aside the leave and (ii) to stay the proceedings

.... g' against the parent company in the English Court as the action was pending
in American Court which was the appropriate forum. Waller, J. on construing
the jurisdiction clause in the agreement held that the parties had agreed that
the English Court should have exclusive jurisdiction and that even if it was
not an exclusive jurisdiction clause, it showed that the parties had freely
negotiated agreeing not to object to the English Court's jurisdiction, therefore,
c it should not be open to the DHC to argue the relative. merits of contesting \.-
t
the case in Texas as compared with contesting the ca:;e in London as the
relevant factors would have been eminently foreseeable' at the time of entering
into the contract and that the contentions that there would be two .sets of
proceedings one in Texas and another in London and that there would be
inconvenience for witnesses having regard to the location of documents, the
D timing of a trial and all such like matters to support stay of English action
could not be l?~rmitted to be urged.

In Donohue v. Armco Inc. and Ors., (2002) 1 All. ER 749, there were
three contracts for the saie of shares in the Armco insurance group of
E companies {for short, 'the A group') containing exclusive jurisdiction clauses
providing that the parties irrevocably submit themselves to the exclusive
jurisdiction of the English Courts to settle any dispute which might arise out
of or in connection with the agreement. Disputes having arisen the 'A group'
· initiated proceedings in New York against o· and others. D applied to the v
English Court for ananti-suit injunction preventing the 'A group' from
'-'"
F bringing claims arising from the sale of the shares against D in any forum
other than England. The learned Judge at the first instance .declined to grant
4
the injunction prayed.for but the Court of Appeal granted the prayer of anti-
suit injunction. On the appeal of D to the House Qf Lords, it was held that
where the parties had bound themselves by an exciusive jurisdiction clause,
effect should ordinarily be given to that obligation in the absence of strong
G reasons for departing from it. The question whether strong reasons exist to ·
displace the claim ·under the contract would depend _on the facts and
circumstances of each case. Lord Bingham of Comhill with whom other Law
) ...
Lords agreed held thus: ,

H '"Where the dispute was between two contracting parties, one of which
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD. [S.S.M. QUADRJ, J.} 499

sued the other in a non-contractua[ forum, and the claims fell within A
the scope of the exclusive jurisdiction clause in their contract, and the
interests of other parties were not involved, effect would in all
probability be given. to the clause. However, the court might well
decline to grant an injunction or a stay where the interests of parties
other than parties bound by the exclusive jurisdiction clause were B
involved or grounds of claim not the subject of the clause were part
of the relevant dispute so that there was a risk of parallel proceedings
and inconsistent decisions. In the instant case, D's strong primafacie
righno be sued in England on claims made by the other parties to the
exclusive jurisdiction clause insofar as those claims fell within that
clause was matched by the clear prima facie right of the A group to C
pursue other claims in New York. The crucial question was whether,
on the facts, the A group could show strong reasons why the court
should displace D's prima facie entitlement. Moreover, if strong
reasons were found, such reasons would have to lie in the prospect.,
if an injunction was granted, of litigation continuing partly in England D
and partly in New York, and that was a consideration to which great
weight should be given."

Our attention was also invited to a decision of Court of Appeal in
SABAH Shipyard (Pakistan) Ltd-;v. (I) Islamic Republic of Pakistan (2)
Karachi Electrics Supply Coroporation Ltd., (2002) 2002 EWCA Civ 1643. E
In that case SABAH, a limited Company incorporated in Pakistan by its
Malaysian parent, entered into a agreement with a state owned corporation-
KESC, in regard to the design, construction,. operation and maintenance of a
barge-mounted electricity generation facility at Karachi. The Government of
Pakistan (GOP) entered into a guarantee in favour of SABAH which, inter F
alia, provided that the parties consented to the jurisdiction of the Courts of
England for any action under the agreement to resolve any dispute between
them and waived the defence of inconvenience of forum in any action or
proceeding between them in the Courts of England. The GOP brought an
action in the Court of Senior Judge, Islamabad and obtained an anti-suit
injunction against SABAH. However, SABAH also brought an action in G
English Court and sought an anti-suit injunction which was granted restraining
the GOP from continuing proceeding in the Court of Senior Judge, Islamabad.
Against the order continuing the injunction, the GOP went.in appeal before
the Court of Appeal. Waller, L.J. with whom the other members of the Court
of Appeal agreed in reaffirmation of the principles laid. down in SN/ H
500 SUPREME COURT REPORTS [2003] 1 S.C.R.

A Aerospatiale 's case (supra), held that the learned judge in the first instance
was right in construing that the clause in the agreement was a non-exclusive
jurisdiction clause and that as GOP had agreed to submit and disputes between
the parties to the jurisdiction of the English Court and to waive any objection
that any action brought in England was in an inconvenient forum, therefore,
B it could not have been the intention of that parties that if proceedings were
commenced in England, parallel proceedings could be pursued elsewhere
unless there was some exceptional reason for doing so. The action of GOP
in seeking to prevent SABAH in commencing proceedings in the agreed .X
jurisdiction was construed as a clear breach of contract and it was observed
that the proceedings in Pakistan might also be vexatious if commenced after
C the English proceedings and/or simply to attempt to frustrate the jurisdiction
clause which expressly dealt with the forum conveniens aspect so as to enable
England to be the most likely forum for resolution of disputes and that
England was the agreed jurisdiction to which neither party could object. It
was noted that the GOP could not show any exceptional reason why parallel
D proceedings were justified and that the fa-:t that the GOP commenced the
proceedings first, did not change the position because they did so as a pre-
emptive strike.

From the above discussion the following principles emerge:

E (l) In exercising discretion to grant an anit-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 justic~ will be defeated
F and injustice will be perpetuated; and

(c) the principle if comity-respect f~r the court in which the
commencement or continuance of action/proceeding is sought
to be restrained-must be borne in mind;
G (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
H or vexatious or in forum non-conveniens;
MODI ENTERTAINMENT NETWORK r. W.S.G. CRICKET PTE. LTD. IS.S.M. QUADRI, l.] 50]

(3) Where jurisdiction of a court is invoked on the basis of jurisdiction A
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;
B

(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
c
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 D
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
E
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 F
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;
G
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 H
502 SUPREME COURT REPORTS [2003) I S.C.R.

A (7) the burden of establishing that the forum of choice is a forum
non-conveniens or· the proceedings therein are oppressive or
I
vexatious would be on the party so contending to aver and prove
the same.

Now adverting to the facts of this case, the jurisdiction clause in the
B contract runs thus:
"This 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
C of law rules). "

A plain reading of this clause shows that the parties have agreed that
their contract will be governed by and be construed in accordance with English ...,.
I

law and they have also agreed to submit to the non-exclusive jurisdiction of
English Courts (without reference to English ~onflict of law rules). We have
D already observed above that recitals in regard to submission to exclusive or
non~exclusive·: jurisdiction of a court of choice in an 'agreement are not
~etenninative. However, as both the parties proceeded on the basis that they
meant non-exculsive jurisdiction of the English Courts, on the· facts of this
case, the Court is relieved of the interpretation of jurisdiction clause. Normally,
. the c?urt will give effect t? the intention of the parties as expressed in the
E agreement entered into by them except when strong reasons justify disregard
of the contractual obligations of the parties. In Donahue's case (supra) although
.the parties to the agreement stipulated to submit to the exclusive jurisdiction
of the English Courts, the House of Lords found that it would not be in the
interests of justice to hold the parties to their contract a~ in thaf case strong
F .reasons were shown by the respondent. It was felt necessary that a single trial
· of all the claims of the parties by one forum would be appropriate and as all
J.
the parties to the New York proceedings :Were·not parties to the agreement
stipulating exclusive jurisdiction of the English Court and as all the claims
before the New York court did not arise out of the said contract.so they could
G not have been tried in the English Cou11. It was urged that in the circumstances
parallel proceedings-one in England and another in New-would have to go
on which might result in inconsistent decisions. Those facts were considered
as strong reasons to decline to grant anti-suit injunction though the parties
hand agreed to the exclusive jurisdiction of the English Court. In contrast in
SABAfI' s case (supra) even though GOP filed the suit first in the court of
H natural jurisdiction and sought anti-suit injunction against SABAH restraining
MODI ENTERTAINMENT NETWORK v. W.S.G. CRICKET PTE. LTD. [S.S.M. QUADRI, J.] 503

them from proceeding with the action brought by them in the English Court, A
the Court of Appeal found that non-exclusive jurisdiction clause in oflte
agreement of guarantee executed by GOP was binding on them. The· action
of GOP in filing the suit earlier in the court of natural jurisdiction was held
to be clearly in breach of contract and in the context of the non-exclusive
jurisdiction clause, oppressive and vexatious. unless the GOP could show B
strong reasons as to. why. parallel proceeding would -be justified. The only
ground urged for continuance of proceeding in Pakistan Court was that it was
a convenient forum which was considered not strong enough for the GOP to
disregard the contractual obligation of submission to the jurisdiction of the
English Court for resolution of disputes. The Court of Appeal, upheld the
anti-suit injunction granted by the learned Judge at'the first instance as also. C
the order declining to stay the English suit.

In the instant case, though the learned single judge proceeded on the
prima facie finding that the proceedings in the English Courts would be
oppressive and vexatious, in our view, those findings, recorded at the stage
of passing an ad-interim order, 'would not bind the same learned judge much D
less they would bind the appellate court or the parties thereto at subsequent
stage of the same proceeding because it cannot operate as issue estoppel. It
cannot be laid down as a general principle that once the parties have agreed
to submit to the jurisdiction of a foreign court, the proceedings or the action
brought either in the court of natural jurisdiction or in the court of choice will E
per se be oppressive or vexatious. It depends on the facts of each case and
the question whether the proceedings in a:Court are vexatious or oppressive
has to be decided on the basis of the material brought before the court.
Having perused the plaints in both the suits and the contract we are of the
view that the proceeding in the English Court for recovery of the minimum
guarante~d amount un<ler the contract cannot, at this stage, be said to be F
oppressive or vexatious. It is true that the courts would be inclined to grant
anti-suit injunction to prevent. breach of contractual obligation to submit.to
the exclusive or non-exclusive Jurisdiction of the court of choice of the parties
but that is not the only ground on which anti-suit injunction can be granted.
As is apparent the appellants brought the suit in the court of natural jurisdiction G
for adjudication of the disputes arising under the contract for which the
parties have agreed to submit to the non-exclusive jurisdiction of the English
Court in accordance with English law though the English Court has no nexus
with the parties or the subject-matter and is not the natural forum. But then
the jurisdiction clause indicates that the intention of the parties is to have the
disputes resolved in accordance with the principles of English law by an H
504 SUPREME COURT REPORTS [2003] I S.C.R.

A English Court. Unless good and sufficient reasons are shown by the appellants,
the intention of the parties as evidenced by their contract must be given effect
to. Even when the appellants had filed the suit earlier in point of time in the
court of natural forum and the respondent brought action in the English Court
which is the agreed forum or forum of the choice having regard to the
expressed intention of the parties, no good and sufficient reason is made out
B to grant anti-suit injunction to restrain the respondent from prosecuting the
English action as such an order would clearly be in breach of agreement and
the court will not, except when proceedings in foreign court of choice result
in perpetuating injustice aid a party to commit breach of the agreement. To
apply the principle in Donohue 's case good and sufficient reasons (strong
C reasons) should be shown to justify departure from the contractual obligations.
Here; two contentions have been urged; the first is that the English Court is
forum non-conveniens in view of the alleged breach of the agreement by the
respondent in the manner not foreseen. This, in our view, is far from being
a good and sufficient reason to ignore the jurisdiction clause. Even otherwise
the fact that the parties had agreed to resolve their disputes arising under the
D agreement, shows that they had foreseen possible breach of agreement by
any of the parties and provided for the resolution of the disputes which might
arise therefrom. In the context, the foreseeability test would take in
circumstances which render approaching the forum of choice impossible like
the court of choice merging with other court and losing its identity or a vis
E major etc., which would make it impossible for the party seeking anti-suit
injunction, to prosecute the case before the forum of choice. In our view, on
the facts of this case, the foreseeability test cannot be extended to the manner
of breach of the contract so as to turn the forum of choice into forum non-
conven iens. Circumstances such as comparison of litigation expenses in
England and in India or the hardship and incurring of heavy expenditure on
F taking the witnesses to the English Court, would be deemed to have been
foreseen by the parties when they agreed to submit to the jurisdiction of the
· English Court in accordance with the principles of English law and the said
reasons cannot be valid grounds to interdict prosecution of the action in the
English Court of choice. And the second is that English Court has no
G connection with either of the parties or the subject-matter and it is not a court
of natural jurisdiction. This reason can be taken note of when strong reasons
are shown to disregard the contractual obligation. It cannot be a good and
sufficient reason in itself to justify the court of natural jurisdiction to interdict
action in a foreign court of choice of the parties.

H We, therefore, find no valid reasons to grarit anti-suit injunction in
MODI ENTERTAINMENT NETWORK'· W.S.G. CRICKET PTE. LTD. [S.S.M. QUADRI, J.] 505

fuvour of the appellants, in disregard of jurisdiction clause, to restrain the A
respondent from prosecuting the case in the foreign forum of the choice of
the parties-the English Court.

For the aforementioned reasons, interference in the order of the High
Court, under challenge, is not warranted. The appeal fails and it is accordingly
dismissed with costs. B
N.J. Appeal dismissed.