Essel Sports Pvt. Ltd. vs Board of Control for Cricket

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(Del) 268

IN THE HIGH COURT OF DELHI AT NEW DELHI
HON'BLE MR. JUSTICE VIKRAMAJIT SEN, HON'BLE MS. JUSTICE MUKTA GUPTA
Essel Sports Pvt. Ltd. (Indian Cricket League)...Appellant
versus
Board of Control for Cricket …..Respondent
FAO(OS) No.107/2010 & CM Nos. 2517/10, 2520/10, 6557- 58/10 & 6561-62/10
Decided on : March 31, 2011

Advocates Appeared:
Mr. Harish Salve, Sr. Adv., Mr. C.S. Vaidyanathan, Sr. Adv., Mr. Maninder Singh, Sr. Adv. with Ms. Pratibha M. Singh, Ms. Surabhi Mehra & Mr. Nikhil Mehra, Advs. in India & Ors. Mr. C.A. Sundaram, Sr. Adv. with Ms. Radha Rangaswamy, Mr. Raman Kumar, Mr. Harsh Kaushik & Mr. Amit Sibal, Advs.
Mr. Ramji Srinivasan, Sr. Adv. with Ms. Dahlia Sen Oberoi, Ms. Manya Kumar & Mr. Zeyaul Haque Advs. for Respondent Nos.2 and 3.

Headnote:A) Civil Procedure Code, 5 of 1908, Order 39, rule 1:- Anti-suit injunction restraining the parties to pursue legal remedies in foreign courts. - Directions of the Supreme Court in Modi Entertainment Network’s case reiterated – While keeping in view of and respecting the comity of court, Indian courts can issue anti-suit injunction against parties who are under territorial jurisdiction of the Indian courts and in respect of which the cause of action is overlapping with the proposed action in foreign courts, which are contrary to the principle convenience or which is oppressive and vexatious. Present suit filed by the petitioner who is conducting a cricket tournament in national and international level seeking mandatory injunctions against Board of Cricket Control of India, taking various steps to scuttle the conduct of the matches by the ICL. Similar suit proposed to be filed by the plaintiff against BCCI. BCCI filing an application for injunction against the appellant herein for perusing his remedy in U.K. courts Single Judge passing the anti suit injunction against the appellant. On appeal held that the orders of the Single Judge is not being perverse, there is no ground for interference.
B) Civil Procedure Code, Section 10, Explanation :- Contention of the appellant that provision in the explanation to Section 10 allowing a second suit for the same cause of action is not barred by view of the suit being filed in the foreign court is also true in converse in the sense that even where the suit is already instituted in India, for the same cause of action between the same parties, another suit is not barred. The observation of this court in Magotteaux Industries’s case an obiter dicta and hence held is not binding on this court.
C) Civil Procedure Code, 5 of 1908, Order 39, rule 1:- Anti-suit injunction issued against the appellant proposed against BCCI, by Single Judge – But injunction not covering the suit instituted by the appellant against the International Cricket Committee and ECB in the English court on the same allegations against BCCI, without making them as party. Contention that it is based on the infringement of U.K. Competition Act is rejected as the contents are primarily on the basis of alleged actions of BCCI and on a proposed conduct of similar trounaments in U.K. also. Held in the interest of justice the injunction shall extend to the suit against the ICC and ECB also. Appellant being a body under the territorial jurisdiction of the High Court, such an injunction was held not bad.

JUDGMENT

VIKRAMAJIT SEN, J.

1. This Judgment will dispose of connected Appeals No. FAO(OS) 107/2010 and FAO(OS) 154/2010 emanating from the common Order of the learned Single Judge dated 4.2.2010, by means of which an interim injunction on the Plaintiff‘s application under Order XXXIX Rule 1 and 2 Code of Civil Procedure, 1908 (CPC for short) restrained the Defendant, Essel Sports Pvt. Ltd. (ESPL) from proceeding against the Plaintiff, the Board of Control for Cricket in India (BCCI), in Courts in England. The Plaintiff submits that there is complete identity between the cause of action of the notified lis proposed and thereafter actually filed on 4.2.2010 in the High Court of Justice, Chancery Division, London and the dispute which is subject matter of Suit, CS(OS) No.1566/2007, filed by ESPL against the BCCI presently pending in this High Court. By the subject Order, the learned Single Judge vacated the injunction relating to the International Cricket Council (ICC) and the England & Wales Cricket Board (ECB).

2. The facts, in a nutshell, are that ESPL started a cricket tournament in the name and style of the Indian Cricket League (ICL) wherein the competing teams constitute players of both Indian and foreign nationality at domestic and international level. It is alleged that the BCCI, by virtue of being the concerned Home-Board regulating cricket in India, publically opposed the Indian Cricket League tournament and also overtly and covertly took all possible steps to stultify its operations. The ESPL has alleged that the BCCI used its influence on various state agencies, ICC and the respective foreign Home-Boards to boycott the ESPL tournament, namely, the ICL. ESPL filed a Suit, CS(OS) No.1566/2007 on 24.8.2007 against the BCCI, in which the Union of India and Karnataka State Cricket Association were also made parties, seeking declaratory and mandatory injunctive reliefs against the Defendants. While the Suit is progressing in this High Court, BCCI filed the subject Suit for issuance of an anti-suit injunction against ESPL alleging that BCCI had received a Notice dated 16.11.2009 sent by the Solicitors of ESPL in England. This Notice states that ESPL intended to file a suit against BCCI in the Court of England & Wales in the United Kingdom. Similar notices were sent to ECB and ICC who were proposed to be made the co-defendants in that Suit. In this Suit in hand, CS(OS) No.2312/2009, BCCI has prayed for a perpetual injunction against ESPL from initiating any action against BCCI in any other judicial forum in respect of the allegations, subject matter and reliefs contained and covered in the earlier Suit, CS(OS) No.1566/2007 pending before Delhi High Court.

3. An interim injunction was granted on 25.1.2010 in favour of the Plaintiff/BCCI and Defendants No.2 and 3, namely, ECB and ICC, restraining ESPL from proceeding with its proposed claim before the U.K. Courts, till the next date of hearing. Vide impugned Order dated 4.2.2010, the learned Single Judge made the stay in favour of the BCCI permanent till the final disposal of the subject anti-suit injunction action. However, the stay qua ICC and ECB was vacated. All the adversaries, discontent with different parts of the Order of the learned Single Judge, have filed their respective Appeals. In FAO(OS) No.107/2010, ESPL has impugned that part of the Order wherein the learned Single Judge has restrained it from proceeding against BCCI in the U.K. Courts. In FAO(OS) No.154/2010, BCCI has impugned the decision of the learned Single Judge disallowing its prayer to extend the anti-suit injunction against ICC and ECB. Moreover, ICC and ECB have also filed their Cross-objections in FAO(OS) No.107/2010 filed by ESPL praying that ESPL should be injuncted from proceeding against them in the U.K. Suit filed by ESPL. It transpires that the very action which was initially proposed to be pursued against BCCI along with ICC and ECB has now been filed by ESPL, the only change being that BCCI

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