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

The appellant is the original defendant in the suit. The defendant is aggrieved by the impugned order of the learned single Judge granting ad interim order of injunction restraining the defendant from proceeding with or taking any step in the claim filed by the defendant in the High Court of Justice, Queens Bench Division, England. At the request of learned counsel for the parties and considering all the facts and circumstances of the case, we have taken up for the decision the Notice of Motion in the suit for grant of interim injunction instead of only considering the question of grant ofinjunction. In order to appreciate the rival contentions, the facts in brief may be stated as1st and 2nd plaintiffs are both companies registered under the Companies Act,1956, carrying on business in the media and entertainment industry. The defendant is a company registered under the laws of Singapore. The 2nd plaintiff and the defendant entered into agreement dated 21st September 2000 whereby the defendant who had exclusive licence for, interalia, television rights in respect of ICC Knockout Cricket Tournament at Kenya between 3rd and 15th October 2000 granted to the 2nd plaintiff, the exclusive licence to exhibit the said Tournament on terrestrial television i.e. Doordarshan in India. The 2nd plaintiff in turn, assigned the same to the 1st plaintiff. In consideration of the grant of television rights, the licensee (Plaintiffs) were to pay to the designated account the licence fee which was to be paid net of any and all thedeductions, withholding or taxes. The consideration/licence fee stipulated under the agreement was guaranteed net amount of US$ 35,00,000/and a further sum of US$ 20,00,000/in the event of the net advertising revenue exceeding the sum of the guaranteed amount of US$event which was to be telecast i.e. the ICC Knockout Cricket Tournament commenced from 3rd October 2000. The plaintiffs for the purposes of telecast of the said event, entered into an agreement with Doordarshan to telecast/ beam/ display the said signals through its satellite. The Doordarshan by way of consideration was to be paid a sum of Rs.4 crores as telecast fees. By their fax message dated 5th October 2000, the defendant complained that the Doordarshan was broadcasting the matches from the event in thethrough their satellite signal which is directly in breach of Arab Digital Distribution Companys rights and the rights granted to the plaintiffs which were limited to terrestrialtelevision in India only. The plaintiffs were requested to cease and desist from this immediately. In reply to this fax message the plaintiffs conveyed to the defendant by their letter dated 7th October 2000 that Doordarshan is not intentionally violating or broadcasting any rights of third party, that it is using the INSAT 2E satellite for its wide terrestrial network linkage and that any spill over of the signal outside India, is purely incidental and a natural over spill. It seems that Doordarshan vide its letter dated 6th October 2000 took the same stand as taken by the plaintiffs namely that spill over of signal outside India, is only incidental and not intentional. Thereafter there was extensive correspondence between the parties, allegations and counter allegations ensued, plaintiffs threatening to disconnect the signal on account of the alleged breach and defendant denying any breach explaining that the spill over of signal was not intentional and repeated threat of disconnection had hampered and hindered the plaintiffs capacity to exploit commercial potential of the event. It is not necessary to refer to the entire correspondence but suffice it to say that the threat of disconnection was not implemented and the plaintiffs telecast all the matches through Doordarshan including the finals which took place on 14th Octoberis an admitted position that the Plaintiffs thereafter made various payments to the defendant as per the agreement during the period December 2000 to February 2001. In the plaint, it is averred by the plaintiffs that these payments were made without prejudice. However, according to the defendant this story is belied by the plaintiffs own letters dated 18th December 2000 and 5th January 2001 which show that in response to the defendants request for payment, the plaintiffs had offered no excuse or arguments but they had simply apologised for the delay in making payments and assured the defendant that they were doing everything they could to make those payments. The defendant has alleged that these letters were deliberately suppressed and this by itself disentitles the plaintiffs from seeking discretionary and equitable relief of injunction. To complete the narration of facts, it is to be noted that the plaintiffs failed to make the balance payment as per the agreement. By its Solicitors notice dated 3rd May 2001, the defendant called upon the plaintiffs to pay the balance amount of US $ 2,436,286 on account of licence fee and a further sum of GB Pounds 40,000/for technical/ satellite services provided by WSG and interest thereon at the rate of 1.5% per9th May 2001, the plaintiff filed the present suit alleging inter alia that due to threats of the defendant that the feed would be stopped and plaintiffs would be held responsible for the loss of revenue for the Gulf licensee and also due to the fact that threats given by the defendant were made public by them, it became known to the prospective advertisers that the telecast was likely to be discontinued or disconnected or was in serious jeopardy. This resulted in a large number of prospective advertisers threatening to curtail their commitments to the plaintiffs. Several other advertisers who were interested in giving their advertisements, as Indias performance was stunning in the Tournament, pulled out of their commitments and gave their advertisements to ESPN channel instead of Doordarshan, that because of this conduct of the defendant the plaintiffs suffered loss of over US$It is alleged by the plaintiffs that the entire episode of the complaint allegedly made by the Gulf Licensee was deliberately overplayed in collusion with Mr.Murdock (owner of Star) with a view to divert the advertisers to ESPN channel belonging to the said Murdock. On that basis the plaintiffs sought a decree for damage in the sum of US$defendant filed its claim for breach of contract against the plaintiffs in the High Court of Justice, Queens Bench Division, England on 15th November 2001. Service of the said claim was acknowledged by the defendants solicitor on 9th January 2002. By their letter dated 11th January 2002, the plaintiffs solicitor wrote to the defendants solicitors that the plaintiffs intend to file application to challenge the Courts jurisdiction and requested for short extension of time and defendants solicitors agreed for seven days extension i.e. upto 31st January 2002. On the same day, however, the plaintiffs filed the present Notice of Motion seeking interlocutory injunction restraining the defendant from proceeding with the claim in the High Court of Justice Queens Bench. It is inter alia contended that the suit filed by them against the defendant is earlier than the defendants Claim, which has been filed in England, that entire cause of action has arisen in India, that the parties who would be deposing in the said claim would all be from India, and, therefore, the claim filed by the defendant in England be stayed. It is contended that if the claim in England is allowed to continue, it will cause enormous expenses to the plaintiffs, that it is not convenient and proper forum at all and that the claim filed by the defendant in England is vexatious and is filed only with a view to harass them. It is also contended that since all their witnesses, like personnel from Doordarshan, advertisers etc., are in India, it will be impossible to secure their presence before the Court in England and defendants intention in filing claim there is only to prevent plaintiffs from establishing their case in the Court in England. The learned single Judge after hearing the parties was of the prima facie opinion that though the parties had agreed to a forum which was chosen by them, the claim in the Court in England if continued, would be oppressive and vexatious and on that basis grantedin favour of the plaintiffs.

Reasoning: 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.