The plaintiff is a firm carrying on business at No. 368, 14th Cross, Upper Palace Orchards, Bangalore, India. The managing partner is an Indian national also residing in Bangalore. The plaintiff has filed an application for leave of this Court pursuant to section 27 of the Arbitration Act 1952 to enforce the award of Arbitration No. 1917 dated January 28, 1980 which was adjudicated by the Arbitrators in London pursuant to the Rules of Arbitration and Appeal of Federation of Oils, Seeds, Fats, Association (FOSFA), 24 St. Mary Axe, London EC3A 8ER.

The defendants have entered an appearance and are contesting the legality of the Arbitration award. However, for the present proceedings the defendants have applied before me for an order that the plaintiff furnishes security for costs before the main application is heard on the grounds that the plaintiff is ordinarily resident out of the jurisdiction of the Court. In fact, the defendants' solicitors had written to the plaintiff's solicitors asking for a sum of $15,000.00 as security for cost. The defendants' application is supported by the affidavit of Mr. Chan Kai Koon, the Marketing Director of the company affirmed on October 31, 1985 (Encl. 16). According to him, the defendants are resisting the main application on three main grounds, i.e. that the award is null and void, that it was procured by suppression of material facts and thirdly the enforcement of the award is contrary to public policy and the laws of Malaysia.

Order 23 Rule 1(i) provides that the Court may order security for costs "if, having regard to all the circumstances of the case, the Court thinks it just to do so." "These words have the effect of conferring upon the Court the real discretion and indeed the Court is bound, by virtue thereof, to consider the circumstances of each case, and in the light thereof to determine whether and to what extent or for what amount a plaintiff may be ordered to provide security for costs. It is no longer, for example, an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs." (Supreme Court Practice 1985 Vol. 1 p.384). In exercising its discretion, it is clear that the Court will have regard to all the circumstances of the case. For the circumstances, see per Lord Denning M.R. in Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] 2 All ER 273.

However, in Aeronave SPA & Anor v Westland Charters Ltd and Ors [1971] 3 All ER 531, Lord Denning M.R. in his judgment at p.533 stated as follows:

"I agree … that the rule does give a discretion to the court. In 1894 in Crozat v. Brogden Lopes L.J. said that there was an inflexible rule that if a foreigner sued he should give security for costs. But that is putting it too high. It is the usual practice of the courts to make a foreign plaintiff give security for costs. But it does so, as a matter of discretion, because it is just to do so. After all, if the defendant succeeds and gets an order for his costs, it is not right that he should have to go to a foreign country to enforce the order … . The ordinary rule still remains, that it is a matter of discretion. …"

In the present case, the question is simply whether or not it is just to order security for costs? In my opinion, two major considerations clearly merit my attention. The first consideration is of course the fact that the plaintiff is ordinarily resident out of this jurisdiction. Admittedly, under Rule 1(i), security for costs cannot now be ordered as of right from a foreign plaintiff, but only if the Court thinks it just to order depending on the circumstances of the case. Secondly, it is material to consider one of the grounds of the defendants in disputing the plaintiff's main application. It is deposed by Mr. Chan that the enforcement of the award is contrary to public policy and the laws of Malaysia. Here, it is pertinent to ask whether or not the plaintiff has complied with Order 69 Rule 6 of the Rules of the High Court