1/ By this appeal under Order 43 Rule 1(a) of CPC the appellants (plaintiffs) have challenged the order dated 4/9/2015 passed by District Judge
Indore returning the plaint in RCS No. 5-B/2013 under Order 7 Rule 10 CPC.
2/ Appellants had filed the above suit claiming a decree of 8 crores as damages for investment expenses, loss of business, tribulations, mental and
physical harassment etc. against the respondents with the plea that parties had entered into co-operation agreement dated 7/3/2009 and appellants had
acted in terms thereof but the respondents had not fulfilled their obligations arising out of and under said co-operation agreement, therefore, the
appellants had claimed the damages for breach. Â
3/ Respondents had filed the application under Order 7 Rule 10 CPC seeking return of the plaint for presentation before the appropriate Court on the
ground that parties had agreed to submit to the exclusive jurisdiction of the courts of England and that cause of action arose in England and
respondents no. 1 to 4 reside in England. The application was replied by appellants and by the order under challenge trial court has allowed the
application.
4/ Learned counsel for appellants submits that the court in England is a form of non convenience to appellants because the appellants will have to take
his witness to England, whereas the natural forum is court at Indore where the appellants are residing and doing their business. In support of his
submission he has placed reliance upon judgment of the House of Lords in the matter of Spiliada Maritime Corporation Vs. Cansulex Limited reported
in (1986) 3 All ER 843.
5/ As against this learned counsel for respondents no. 1 to 4 supporting the impugned order has submitted that there is exclusive jurisdiction clause in
the agreement and that the dispute is to be decided as per laws of England and case is covered in favour of respondents by the judgment of the
Supreme court in the matter of Modi Entertainment Network and another Vs. W.S.G. Cricket Pte. Ltd. reported in (2003) 4 SCC 34 1and that
respondents are residing and doing their business in England therefore, for them Indore Court is not a convenient forum.
6/ I have heard the learned counsel for the parties and perused the record.
7/ Clause 7 of the agreement dated 7th March 2009 entered into between the parties relates to governing law and  jurisdiction and reads as under:
7. Governing law and jurisdiction
7.1 The formation, existence, construction, performance, validity and all aspects whatsoever of this letter or of any term of this letter will be governed
by the laws of England and Wales.
7.2 The courts of England and Wales will have exclusive jurisdiction to settle any disputes which arises out of or in connection with this letter and we
each hereby irrevocably agree to submit to that jurisdiction.
8/ A bare reading of the aforesaid clause reveals that parties with their open eyes had agreed that matter will be governed by laws of England and
Wales. Not only that parties had also agreed to exclusive jurisdiction of the courts of England and Wales for settling the dispute and they had
irrevocably agreed to submit to that jurisdiction.
9/ Considering similar issue in a case relating to anti-suit injunction, the Hon'ble Supreme court in case of Modi Entertainment Network (supra) has
culled out the applicable principle as under:
24. From the above discussion the following principles emerge :
(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following aspects : -
(a) the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the court;
(b) if the injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and
(c) the principle of comity - respect for the court in which the commencement or continuance of action/proceeding is sought to be restrained - must be
borne in mind;
(2) in a case where more forums than one are available, the Court in exercise of its discretion to grant anti-suit injunction will examine as to which is
the appropriate forum (forum conveniens) having regard to the convenience of the parties and may grant anti-suit injunction in regard to proceedings
which are oppressive or vexatious or in a forum non-conveniens;
(3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in regard to exclusive or non-exclusive
jurisdiction of the court of choice of the parties are not determinative but are relevant factors and when a question arises as to the nature of
jurisdiction agreed to between the parties the court has to decide the same on a true interpretation of the contract on the facts and in the
circumstances of each case;
(4) a court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties have agreed to submit to the
exclusive jurisdiction of a court including a foreign court, a forum of their choice in regard to the commencement or continuance of proceedings in the
court of choice, save in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a
contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it
impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not
exist or because of a vis major or force majeure and the like;
(5) where parties have agreed, under a non- exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable
to it for the resolution of their disputes arising under the contract, ordinarily no anti- suit injunction will be granted in regard to proceedings in such a
forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors
before submitting to 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;
(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.
10/ Para 24 of the above judgment in Modi Entertainment Network (supra) reveals that Supreme court in that case was considering non exclusive
jurisdiction clause yet it was held that where in terms of the agreement a party approaches an agreed neutral foreign forum for resolution of dispute
ordinarily no anti-suit injunction will be granted as it shall be presumed that parties had thought over their convenience and all other relevant factors
before submitting to the non exclusive jurisdiction of the Court of their choice.
11/ The position has been made clear in following paragraph of judgment of the Supreme court in case of Modi Entertainment Network (supra) :
27. 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 less would they 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 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 guaranteed amount under the contract cannot, at this stage, be said to be 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 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 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 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 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
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 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-conveniens. Circumstances such as comparison of litigation
expenses in 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. And the second is that English Court
has no 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.
12/ In the aforesaid paragraph the Hon'ble Supreme court has laid emphasis on intention of parties and in the present case clause 7 of the agreement
clearly reflects that intention of the parties to have dispute resolved as per laws of England and Wales by courts of England and Wales. In such a case
if appellants are permitted to prosecute the suit in India that would be in breach of agreement. It is presumed that while entering into the agreement
the appellants had foreseen the issue of alleged inconvenience in taking the witness to England or prosecuting the suit at England.
13/ Even otherwise, respondents no. 1 to 4 are in England and doing the business there. Hence the issue of forum of non-convenience applies with
equal force to them if the suit continues at Indore. Therefore, mere fact that Indore Court is the court of natural jurisdiction for the appellants, it is not
enough to permit the appellants to prosecute the suit at Indore contrary to the jurisdiction clause of the contract.
14/ In view of the judgment of the Supreme court in the matter of Swastik Gases Private Limited Vs. Indian Oil Corporation Limited reported in
(2013) 9 SCC 32 also the intention of the parties as reflected in exclusive jurisdiction clause is to be given effect to.
15/ So far as the judgment in the matter of Spiliada Maritime case relied upon by counsel for appellants is concerned, the said judgment has duly been
considered by the Supreme court in paragraph 19 in case of Modi Entertainment Network (supra). Even in the case of Spiliada Maritime it has been
held that forum in which the case could be tried suitably for the interest of all the parties and for ends of justice should be chosen and having regard to
the fact that in the present case parties had agreed to be governed by laws of England and Wales and undisputedly the cause of action also arose in
England and exclusive jurisdiction clause is in respect of courts of England and Wales and the respondents no. 1 to 4 are also residing at England, no
benefit can be extended to appellants on the basis of judgment in the case of Spiliada Maritime.
16/ Having regard to the aforesaid, I am of the opinion that trial court has committed no error in returning the plaint under Order 7 Rule 10 CPC for
presentation before the appropriate Court. Hence no merit is found in this appeal which is accordingly dismissed.
C.c. as per rules.
