Oral Judgment: (P.B. Majmudar, J.)

1. Admit. Learned counsel appearing for respondent No.1 waives notice of admission. So far as respondent No.2 is concerned, in our view, they are not a necessary party for deciding this Appeal. In view thereof, appeal is taken up for hearing forthwith.

2. In our view, this is a thoroughly misconceived appeal filed by the appellant, original plaintiff, in Suit No. 1845 of 2009. By the impugned order dated 5th October, 2009, the learned single Judge rejected the prayer sought for by the plaintiff regarding injunction restraining defendant No.1 from continuing with the arbitral proceedings.

3. The appellant herein has instituted the said suit for a declaration that it has validly cancelled the contract (Annexure -A to the plaint) and hence it is not bound to take the third and final shipment there-under. The plaintiff has also prayed for a declaration to the effect that the certificates issued by the second defendant in connection with the quality of the goods are fraudulent and the same are issued in connivance with defendant No.1 and the same are not binding and enforceable against the plaintiff. The plaintiff has also prayed that defendant No.1 may be restrained by a perpetual injunction as well as by an anti suit injunction from initiating or instituting any suit or proceedings or arbitration proceeding or continuing with the same in any forum with respect to or in connection with the first or the second contracts. In the said suit, the plaintiff also claimed interim injunction restraining defendant No.1 from initiating or instituting any suit or proceeding or arbitration proceeding or continuing the same in connection with the first contract or the second contract, copies of which are annexed as Exhibits -A and B to the plaint.

4. The dispute is in connection with the supply of goods viz. Coking coal. An agreement was arrived at between the appellant, who is the original plaintiff in the suit, and respondent No.1, original defendant No.1, in the suit in connection with the supply of the said goods. The goods were supplied by way of various consignments. It is not in dispute that the goods viz. two shipments in the first contract and one shipment in the second contract were sent by defendant No.1 to the plaintiff and the plaintiff utilized the said goods in question for the purpose of its business. Subsequently, the plaintiff refused to accept the final shipment and in connection with the same, defendant No.1 has instituted arbitral proceedings before the International Chamber of Commerce, International Court of Arbitration, at London and the said proceedings are already commenced. Both sides have nominated Arbitrators and it is pointed out that the Presiding Arbitrator has not been appointed. In the present suit, the plaintiff pressed into service an injunction with a prayer that defendant No.1 may be restrained from proceeding with the arbitration proceeding at London as, according to the plaintiff, the issue involved in the suit as well as before the Arbitral Tribunal are overlapping and part of the dispute is common and in view thereof it is prayed by the plaintiff that defendant No.1 may be restrained from proceeding further with the arbitration proceedings. The learned single Judge, by the impugned order, rejected the said prayer by holding that such type of anti suit injunction can be granted only in exceptional cases. The learned Judge has come to the conclusion that even though such an injunction can be granted but it can be granted in exceptional circumstances only. The learned single Judge accordingly rejected the said prayer for interim injunction against which the present appeal has been filed by the appellant - original plaintiff.

5. Mr. Zubin Behramkumdin, learned counsel appearing for the appellant, vehemently argued that the parties before the Arbitral Tribunal as well as in the suit are different and, therefore, the suit instituted by the plaintiff is a validl