Anti-Suit injunction is a suit whereby Court restrain a party to a suit/proceeding before it from instituting or prosecuting a case in another Court (including a Foreign Court). Under the law and equity, Indian Courts have power to issue anti-suit injunction to a party, over whom Court has personal jurisdiction. This power is required to be exercised sparingly as grant of anti-suit injunction ultimately interfere with the jurisdiction of another Court. Under the provision of Code of Civil Procedure, one or more Courts have jurisdiction to deal with the subject matter depending upon the place of work or residence of the Defendant, place of immovable property or place where cause of action or part of cause of action has arisen. However, on account of manifold increase in cross border commercial activities, the parties to a contract agree to approach any of the available Courts having natural jurisdiction and/or to create exclusive or non-exclusive jurisdiction in one of the available forums or very often agree to have dispute resolution by a Foreign Court as a neutral forum. It is well settled law that by agreement the parties cannot confer jurisdiction, where non-exists on a Court to which Code of Civil Procedure applies, but this principle does not apply when the parties agree to submit to the exclusive or non-exclusive jurisdiction of a Foreign Court.

As per Section 41 (b) of the Specific Relief Act, 1963, an injunction cannot be granted to restrain any person from instituting or prosecuting any proceedings in a court not subordinate to that from which the injunction is sought. Therefore, the question arises when can Indian Court grant anti-suit injunction?

The test for issuance of the anti-suit injunction and the principle to grant the said relief varies from Court of one country to another. It basically depends upon the following:-

Equity and good conscience;
To avoid injustice;
Proceeding before Foreign Court are oppressive or vexatious;
If there is nothing which can be gained by them over and above what may be gained in local proceeding;
To avoid parallel proceeding;
To protect the interest of justice; and
To avoid serious prejudice.

The Hon’ble Supreme Court in the case of Modi Entertainment Network & Anr. Vs. W.F.G. Cricket DTE Ltd., reported as (2003) 4 SCC 341 held that doctrine of anti- suit injunction is based on the principle of forum non conveniens, has to be applied with great care and caution as it involves the issue of respect for corresponding international forums. It was further observed that courts in India like the courts in England are courts of both law and equity and thus the principles governing grant of injunction as equitable relief by the court would also govern grant of anti- suit injunction, which is a species of injunction. However, the rule of comity of courts requires this power to be exercised sparingly because such an injunction though directed against a person in effect causes interference in exercise of jurisdiction by another court. However, the fundamental principle applicable to grant of such injunction would be to choose that forum in which the case could be tried more suitably for the interest of all the parties and for the ends of justice. The burden of proof of forum non-conveniens or the proceedings therein are oppressive or vexatious is on the party contending it.

The question of anti- suit injunction and forum non conveniens also came up for consideration before the Hon'ble Delhi High Court in Horlicks Ltd. & Anr. Vs. Heinz India (Pvt.) Ltd., reported as (2009) 164 DLT 539 wherein court discussed the entire history of said principle which had its origin in common law and also discussed numerous foreign judgments on these issues including the law laid down in the case of Moser Baer India Ltd. Vs. Koninklijke Philips Electronics NV reported as (2008) 151 DLT 180 . The Hon’ble Delhi High Court held that an antisuit injunction is granted by a Court preventing the parties before it from instituting or continuing with proceedings in another Court. On the other hand, the doctrine of forum non conveniens is invoked by a Court to not entertain a matter presented before it in view of the fact that there exists a more appropriate Court of competent jurisdiction which would be in a better position to decide the lis between the parties It must also be kept in mind that the Court granting an anti-suit injunction must otherwise have jurisdiction over the matter.

Similarly, the Court rejecting a matter on the principle of forum non conveniens, must otherwise also have jurisdiction to entertain the same. This is so because if the Court in either case does not have jurisdiction then, it cannot deal with the matter and, consequently, it can neither grant an anti - suit injunction nor pass an order refusing to hear the matter on the plea of forum non conveniens.

In the aforesaid judgement the Hon’ble Delhi High Court gave a very classic example - Assuming that there are two Courts A and B at different places and both having jurisdiction in a particular matter, a party may approach Court A for an anti-suit injunction against the other party preventing them from instituting a suit or other proceedings in Court B. Of course, while considering the grant of an anti-suit injunction, Court A would take into account as to which of the two Courts is the more convenient forum. However, when a party approaches Court A and the defendants take up the plea that Court A is a forum non conveniens and that the matter ought to be more appropriately dealt with by Court B, then Court A, invoking the principles of forum non conveniens, may refuse to entertain the matter presented to it and direct the parties to approach Court B being the more convenient forum.

Therefore, the principle on which an antisuit injunction is invoked is just the reverse of the principle on which the doctrine of forum non conveniens is employed.

There is no legal bar for a civil Court to grant anti-suit injunction to restrain legal proceeding pending before a Foreign Forum but the Courts are required to issue great care and caution while passing such injunction. In the light of the principle governing anti- suit injunction laid down by Hon’ble Supreme Court in Modi Entertainment (Supra) court may grant antisuit injunction in regard to proceeding which are oppressive of vexatious or in a forum non conveniens and exercise of its discretion to grant anti- suit injunction court will examine as to which is the appropriate forum having regard to convenience of parties.

Principle of Anti-Suit Injunction

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NIRAJ SINGH