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IN THE HIGH COURT OF BOMBAY
A.P. Shah V.K. Tahilramani, JJ.
W.S.G. Cricket Pte. Ltd. .... Appellant.
Versus
Modi Entertainment Network another.... Respondents.
Appeal No. 287 of 2002 in Notice of Motion No. 120 of 2002 in Suit No. 2422 of 2001, decide d on 1-4-2002.
Advocates appeared :
I.M. Chagla with Ravi Kadam i/b. A. Menon, for appellant.
Aspi Chinoy with V.R. Dhond i/b. Crawford Baylley Co., for respondents.
Civil Procedure Code, 1908 - Order XXXIX, Rules 1 and 2 - Interim injunction - Grant of - Actions in personum - Jurisdiction in - Defendants restrained from proceedings with claim in English Court - Plaintiffs claim upheld by Single Judge - If claim in Court in England continued, would be oppressive and vexations - Validity of - Parties agreed to a forum - Held - Court contractually chozen by parties - It is a available forum - No party can object exercise of jurisdiction in actions in personum - Injunction can be granted only when proceedings brought in a foreign Court on breach of contract - Agreement confers non-exclusive jurisdiction on designated Court - Application for stay of proceedings in that Court will be brought before that Court itself - Order of Single Judge not sustainable - Set aside - Plaintiff not entitled to any interlocutory injunction. - In the present case, by Clause 12 of the agreement, the parties agreed to submit to the non-exclusive jurisdiction of the English Court (without reference to English conflict of law rules). In a case of present type, where the parties have agreed on a natural forum, the question of granting injunction would arise only when the proceedings are brought in a foreign Court in breach of the contract i.e. in a Court other than the Court which is chosen by the parties. Where the agreement confers non-exclusive jurisdiction on the designated Court and where the proceedings are brought in that Court it is not permissible to contend that the institution of the proceedings is breach of contract and any application for stay of such proceedings on the ground that there was another forum which was more appropriate will have to be made to that Court which will be determined in the light of principles in Spiliada Maritime Corporation v. Cansulex Ltd. In the circumstances, we have no hesitation to hold that the present application for injunction is completely misconceived. The remedy of the plaintiffs is to raise objection before the Court in England where the defendant has instituted its claim.
The plaintiffs have deliberately suppressed letters dated 18th December, 2000 and 5th January, 2001. The Court of law exercising discretionary powers in such matters, rightly insists on a party approaching the Court with clean hands. In S.P. Chengalvarya Naidu (dead) by LRs v. Jagannath (dead) by LRs, 1994 (1) SCC 1, the Supreme Court declared in unmistakable terms that a litigant who approaches the Court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as on the opposite party. Mr. Chinoy strenuously contended that documents were not intentionally suppressed. He submitted that no such objection was raised in the affidavit in reply filed on behalf of the defendants and this submission was made for the first time only during the course of arguments. Mr. Chinoy contended that Court should not deny reliefs without fair consideration of merits of the application. It is not necessary to dilate on that aspect, suffice it to say that the plaintiffs conduct is not above board. Court is not satisfied that non-production of the letters dated 18th December, 2000 and 5th January, 2001, is a bona fide mistake and indeed this Court would have been justified in vacating ad interim injunction on this Count. However since Court is of the opinion that plaintiffs are not entitled to any interlocutory injunction.
2. The 1st and 2nd plaintiffs are both companies registered under the Companies Act, 1956, carrying on business in the media and entertainment industry. The defendant is a company registered under the laws of Singapore. The 2nd plaintiff and the defendant entered into agreement dated 21st September, 2000 whereby the defendant who had exclusive licence for, inter alia, television rights in respect of ICC Knockout Cricket Tournament at Kenya between 3rd and 15th October, 2000 granted to the 2nd plaintiff, the exclusive licence to exhibit the said Tournament on terrestrial television i.e. Doordarshan in India. The 2nd plaintiff in turn, assigned the same to the 1st plaintiff. In consideration of the grant of television rights, the licensee (plaintiffs) were to pay to the designated account the licence fee which was to be paid net of any and all the set-offs, deductions, withholding or taxes. The consideration/licence fee stipulated under the agreement was guaranteed net amount of US $ 35,00,000/- and a further sum of US $ 20,00,000/- in the event of the net advertising revenue exceeding the sum of the guaranteed amount of US $ 35,00,000/-.
Clause 12 of this agreement provided as follows:
“12. ENGLISH LAW
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 of law Rules).”
3. The event which was to be telecast i.e. the ICC Knockout Cricket Tournament commenced from 3rd October, 2000. The plaintiffs for the purposes of telecast of the said event, entered into an agreement with Doordarshan to telecast/beam/display the said signals through its satellite. The Doordarshan by way of consideration was to be paid a sum of Rs. 4 crores as telecast fees. By their fax message dated 5th October, 2000, the defendant complained that the Doordarshan was broadcasting the matches from the event in the Middle-East through their satellite signal which is directly in breach of Arab Digital Distribution Company's rights and the rights granted to the plaintiffs which were limited to terrestrial free-to-air television in India only. The plaintiffs were requested to cease and desist from this immediately. In reply to this fax message the plaintiffs conveyed to the defendant by their letter dated 7th October, 2000 that Doordarshan is not intentionally violating or broadcasting any rights of third party, that it is using the INSAT 2E satellite for its wide terrestrial network linkage and that any spillover of the signal outside India, is purely incidental and a natural overspill. It seems that Doordarshan vide its letter dated 6th October, 2000 took the same stand as taken by the plaintiffs namely that spillover of signal outside India, is only incidental and not intentional. Thereafter there was extensive correspondence between the parties, allegations and counter allegations ensued, plaintiffs threatening to disconnect the signal on account of the alleged breach and defendant denying any breach explaining that the spillover of signal was not intentional and repeated threat of disconnection had hampered and hindered the plaintiffs capacity to exploit commercial potential of the even
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