Case: W.S.G. Cricket Private Limited Vs. Modi Entertainment Network &amp; Another

the reference. The award rendered by the Umpire was lodged in the Bombay High Court. Subsequently the Umpire rendered a supplementary award relating to costs which has been termed as "final award". About a month after the lodging of the award in the High Court of Bombay by the Umpire at the instance of the respondent, Western Company, the latter lodged a plaint in the U.S. District Court, inter alia, seeking confirming the two awards rendered by the Umpire and a Judgment against the ONGC. Appellant ONGC on its part instituted an Arbitration petition under Ss.30 and 33 of the Arbitration Act, 1940 for setting aside the awards rendered by the Umpire. It was noticed by the Supreme Court that there is a possibility of the award rendered by the Umpire being set aside by the Indian Court. In that event, an extremely anomalous situation would arise in as much as successful party (Western Company) may well have recovered the amount awarded as per the Award from the assets of the losing party in the USA after procuring a judgment in terms of the award from the USA Court. It would result in an irreversible damage being done to the losing party (ONGC) for the Court in USA would have enforced a non-existent award under which nothing could have been recovered. Secondly, while as per the contract, parties were governed by the Indian Arbitration Act and the Indian Courts had the exclusive jurisdiction to affirm or set aside the award under the said Act, the Western Company was seeking to violate the very arbitration clause on the basis of which the award has been obtained by seeking confirmation of the award in the New York Court under the American Law. In these circumstances, it was held that it was one of those rare cases where the court would be failing in its duty if it hesitates in granting the restraint order, for, to oblige the ONGC to face the aforesaid proceedings in the American Court would be oppressive in the facts and circumstances of the case. 17.The next Judgment relied upon by Mr.Chinoy is in the case of Ramji Dayawala & Sons Ltd. Vs. Invest Import AIR 1981, Supreme Court 2085. In that case, the dispute was between a petty labour contractor and a foreign engineering construction company which had undertaken to erect the Thermal Power Station in Barauni in Bihar State. The contractor filed a suit for recovery of his dues. The defence was that there was an arbitration agreement between the parties to refer the disputes arising out of the same contract to arbitration and therefore, suit has to be stayed. The court found that there was no concluded arbitration agreement between the parties. It was held that in any event in the facts and circumstances of the case the High Court was not right in exercising its discretion in favour of the respondents by granting stay of the suit filed by the appellant. The court observed that the entire evidence both of the appellant and the respondent is in this country, the contract as a whole was executed and carried out in this country, the claim as a whole arose in this country, the appellant is a company incorporated in this country and the respondent is having its office in this country and that the respondent is not motivated by any principle to have the decision of the foreign arbitral tribunal at Paris but the principle object of the respondent is merely to make it more difficult, if not impossible, for the appellant, to assert the claim. It was held that in such a suit when discretion is exercised on well settled judicial consideration no court would grant stay and the stay has to be refused. The decision lays down principles for grant of stay under section 34 of the Arbitration Act, 1940 and has no bearing on the facts of the present case. 18.Mr. Chinoy also referred to the decision of the Privy Council in SNI Aerospatiale Vs. Lee Kui Jak and another (1987) 3 All ER 510 and the decision of the House of Lords in Airbus Industrie GEI Vs. Patel and others (1998) 2 All ER 257. These judgments basically deal with anti suit injunction and are not relevant to the issue raised in the instant case. 19.We may also mention that we find considerable substance in the submission of Mr. Chagla that 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. Vs. Jagannath (dead) by LRs. and others 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 this aspect, suffice it to say that the Plaintiffs conduct is not above board. We are not satisfied that non-production of the letters dated 18th December 2000 and 5th January 2001, is a bonafide mistake and indeed this court would have been justified in vacating ad-interim injunction on this count. However, since we are of the opinion that plaintiffs are not entitled to any interlocutory injunction, we do not wish to express any final opinion on this aspect.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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.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 this aspect, suffice it to say that the Plaintiffs conduct is not above board. We are not satisfied thatof the letters dated 18th December 2000 and 5th January 2001, is a bonafide mistake and indeed this court would have been justified in vacatinginjunction on this count. However, since we are of the opinion that plaintiffs are not entitled to any interlocutory injunction, we do not wish to express any final opinion on thismay also mention that we find considerable substance in the submission of Mr. Chagla that the plaintiffs have deliberately suppressed letters dated 18th December 2000 and 5th January 2001.