Point of Law: Civil Law - Chamber Summons - Notice of Motion - Injunction during pendency of another suit - Maintainability of - An interlocutory injunction can only be granted during the pendency of a civil suit claiming relief which is likely to result in a final decision upon the subject in dispute ; the suit would be maintainable only on existence of a cause of action, which would entitle the plaintiff to the substantive relief claimed in the suit - Right to obtain an interlocutory injunction pending some other suit or proceeding (involving a particular cause of action) is not in itself a cause of action; it cannot stand on its own. Such right is merely ancillary and incidental to a pre-existing cause of action. This law would have applied to our case had it been simply a case for interlocutory injunction pending another proceeding without there being any cause of action to otherwise maintain it. In our case, however, as we have noted above, the suit has a cause of action of its own.

JUDGMENT :

1. This Chamber Summons, taken out by the original plaintiff in the Commercial Suit, seeks amendment of the plaint and the affidavit in support of the Notice of Motion taken out in the suit, pursuant to leave granted in that behalf by this court by its order dated 11 January 2019.

2. The Commercial Suit seeks a perpetual injunction restraining the defendants from alienating their assets until the final disposal of the proceedings between the parties pending before the courts in Mauritius. The basis of the plaintiff’s cause of action in the suit is Letters of Guarantee cum undertaking issued by defendant No.1 for the line of credit made available by the plaintiff to defendant No.2.

3. The plaintiff’s case is that defendant No.1 had executed two documents, being letters dated 31 August 2010 and 1 December 2010, which were in the nature of Letters of Guarantee cum undertaking, to enable the plaintiff to extend a line of credit to defendant No.2, which is a wholly owned subsidiary of defendant No.1. These Letters of Guarantee inter alia provide for defendant No.1 continuing to maintain at least 51 % ownership in defendant No.2 and causing it to be operated and maintained in such manner as to be in a financial position to meet its obligations in favour of the plaintiff towards the credit extended by the latter. According to the plaintiff, the Letters of Guarantee also include a commitment on the part of defendant No.1, in the event of the plaintiff being unable to recover from defendant No.2 the funds made available to it under the line of credit, and on demand, to make sufficient funds available to ensure that defendant No.2 meets its obligations to the plaintiff.

4. The schedule of amendments annexed to the Chamber Summons seeks to add some averments and delete some others in the plaint as well as in the plaintiff’s affidavit in support of the Notice of Motion. The amendments appear to be in the nature of clarifications concerning the nature of relief claimed by the plaintiff in the present Commercial Suit. The plaintiff’s main prayers in the suit are for (i) perpetual injunction against defendant No.1 restraining the latter from alienating or transferring its assets until the final disposal of the pending proceedings between the parties in the courts of Mauritius, and (ii) directions against defendant No.1 for taking necessary steps so as to ensure that defendant No.2 is in a financial position to meet its obligations towards the plaintiff. By the proposed amendment, the plaintiff seeks to clarify :

(a) that defendant No.2 has been added merely as a formal party, with no particular relief being claimed against it;

(b) that the plaintiff is entitled to restrict the terms of perpetual injunction upto any particular date; such restriction does not imply that the injunction sought is anything but a perpetual injunction; the relief claimed, in other words, is final and not interim; and

(c) that the cause of action of the two proceedings, i.e. proceedings before the courts in Mauritius and the present suit, represent separate and distinct causes of action, the proceedings in Mauritius being based upon the default of defendant No.2 in repaying the line of credit to the plaintiff, whereas the present suit is premised upon the obligation of defendant No.1 to honour its commitments under the Letters of Guarantee.

Apart from the aforesaid averments, which are also sought to be added in the affidavit in support of the plaintiff’s notice of motion, the amendment seeks to substitute the original prayer-clause (a), which claims a perpetual injunction restraining defendant no.1 from disposing of its assets until the final disposal of the proceedings between the parties before the courts at Mauritius, by a new prayer-clause seeking perpetual injunction instead till final repayment of the plaintiff’s dues either by defendant No.1 or defendant No.2. An alternative prayer for damages is also sought to be added against defendant No.1 for breach o