JUDGMENT
R. Ramakrishna, J.
1. The appellant – Airbus Industrie is a groupment D’lnterest created under the Laws of France engaged in the business of manufacturing passenger and cargo aircraft since 1969. The first aircraft manufactured by them was called Airbus A-300, The second aircraft called A-320 was introduced later and was supplied to various renowned Airlines all over the world.
2. Respondent No. 10, the Indian Airlines Corporation purchased about 20 aircrafts A-320. One such aircraft purchased by respondent No. 10 was an aircraft bearing registration VT-EPN. On 14.2.1990 this aircraft bearing registration VT-EPN was a schedule passenger flight from Bombay to Bangalore being flight No. IC 605. In the course of this flight while attempting to land at Bangalore Air Port at 13-03 hours contacted ground approximately 2,300 feet before the beginning of runway No. 09 within the boundary of Golf Association and immediately thereafter hit the embankment which was the boundary wall of the Golf Court: As a result, the fuselage, the wings and other parts of the aircraft disintegrated. With the result, 92 passengers and four crew members perished and the remaining 54 survivors sustained injuries of varying degrees of severity.
3. The Director General of Civil Aviation, respondent No. 11 and the Government of India ordered an investigation into the circumstances of the accident under Rules 71 and 75 of the Indian Aircraft Rule 1937. One Sri Satyendra Singh was appointed as the Inspector of Accidents under Rule 71. Thereafter, a Judicial Court of Inquiry was held in Bangalore under the Hon’ble Mr. Justice K. Shivashankar Bhat, a Judge of this Court to hold investigation under Section 75 of the Aircraft Rules. In this inquiry the assistance was rendered by three technical assessors – Cap. B.S. Gopal, Director, Flight Safety, Air India; Cap. C.R.S. Rao, Director of Training (Retd.) and Sri S.G. Goswamy, Director of Air Worthiness (Rtd.). In this Inquiry 35 witnesses, majority of whom are Indian Nationals, were examined which was commenced in March 1990 concluded during the beginning of October 1990. A Commission Report of the Court of Inquiry is published running into 581 pages giving proximate cause for this disaster. The proximate cause is ascribed to an error on the part of the Pilots employed by Indian Airlines Ltd., inter alia, failing to monitor approach speed and using an incorrect thrust made. Criticism is also made on Hindustan Aeronautics Ltd., who occupied and operated Bangalore Airport due to delays caused in extinguishing the fire. The Court of Inquiry also analysed in detail the investigation report submitted by the Inspector of Accident.
4. The respondents 4 to 9, on 12-2-1992, filed a suit in the High Court of Judicature at Bombay in Suit No. 1652 of 1992 against the 10th respondent, Indian Airlines Corporation and Hindustan Aeronautics Ltd., who is not a party in the present suit in which they claimed compensation at Rs. 5,95,24,989-56 ps in the equivalent of Pound Sterling. All the plaintiffs in the said suit are British Nationals of Indian origin. The cause of accident, according to the plaintiffs in the said suit, was due to improper and insufficient training of the Pilots to fly the said aircraft and inadequate knowledge and wrong understanding of some of the systems of the aircraft. They have also attributed non-ensure of the fact that the aircraft was Air Worthy or not. According to them, the Pilots are inexperienced, improperly trained and lack of understanding with the systems of the aircraft.
(ii) Against the Hindustan Aeronautics Ltd., the allegation of respondents 4 to 9 was not providing immediate and timely fire fighting services during and after air crash. Therefore, they claimed compensation over and above the compensation paid under the provisions of the Indian Carriage by Air Act, 1972. The appellant was not a party in the said proceedings. As far as the 10th respondent is concerned, he has entered into a compromise in the said suit with respondents 4 to 9.
5. Simultaneously, the respondents 1 to 9 filed action in the United States District Courts for South District of Texas (Texas Action) claiming compensation against the appellant on the basis of strict product liability without impleading respondents 10 and 11.
6. On 6th November 1992, the appellant filed a suit in S.C. Suit No. 7100 of 1992 in the City Civil Court at Bombay against respondents 4 to 9 and respondents 10 and 11 for the relief of a declaration that respondents 4 to 9 are not entitled to proceed against the appellant in any Court other than the Court in India which is the appropriate Forum and for a declaration that the action filed by respondents 4 to 9 in the Court at Texas is not in conformity with the Laws of lndia and for further declaration that the applicable law to the question of adjudication of the claim is the Law of India and not the Law of Texas and for other incidental reliefs. A motion was made for a temporary restraint order by means of an injunction to prevent respondents 4 to 9 to claim damage in any Court except the Courts in India. The consideration of interim motion was kept in abeyance in the absence of respondents 4 to 9 and the notice was ordered. After the notice, the parties were allowed to file their affidavits and counter-affidavits in support of their contentions. The learned City Civil Judge took notice of motion to seek temporary injunction for consideration and dismissed the same. But, the learned City Civil Judge kept the said order in abeyance in view of the order passed by the Hon’ble High Court of Bombay earlier and protection of that order was continued until 15-12-1992 to afford an opportunity of appeal. It is submitted that the said suit was withdrawn by the appellant.
7. On 21-11-1992 the appellant has filed the present suit in O.S. No. 7517 of 1992 before the City Civil Judge at Bangalore for a declaration that respondents 1 to 9 are not entitled to proceed against the appellant in any Court other than the Courts in India; for a declaration that the action filed by them in the Courts at Texas is not in conformity with the Laws in India; for a declaration that the applicable law to the question of adjudication of the alleged claim is the Law of India and to restrain them permanently from claiming any damages from the appellant in any Court except the Court in India and pending hearing and final disposal of the suit to restrain respondents 1 to 9 by an order of temporary injunction from claiming any damages from the appellant in any Court except the Courts in India. For an interim relief, the appellant has filed an application I.A.No. 3 under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 for an ad-interim order of temporary injunction restraining respondents 1 to 9 from instituting proceedings either by themselves or through their attorneys, agents, servants, employees or any one claiming under them in any Court of Law outside the territory of India otherwise than in accordance with law in India. They have also sought for an ex-parte order of injunction pending disposal of the application.
8. The learned trial Judge granted ad-interim order of injunction till 4-1-1993. The same was extended from time to time and after considering the defence of respondents 1 to 9 by an order, dated 10-6-1993 I.A.No. 3 was dismissed. This order of dismissal is impugned in this Appeal.
9. On a perusal of the order of the trial Court, it is found that the learned trial Judge proceeded to consider whether the case pending at Texas is vexatious and oppressive and thereafter considered the balance of convenience. The following considerations out-weighed the case made out by the appellant to dismiss I.A.No. 3:-
(i) That the appellant has failed to establish any legal injury, nor have they been able to show that the Texas action is oppressive and vexatious. They have further failed to show that Texas action will lead to multiplicity of proceedings.
(ii) That the suit is barred by the provisions of Section 41(b) of the Specific Relief Act.
(iii) That the balance of convenience is in favour of the defendants as there is no strict/product liability law in India and they would be deprived of the advantage of higher damages in Texas, to which they are legitimately, personally and juridically entitled, if the injunction was granted.
(iv) That the suit is not maintainable in terms of Section 20(b) C.P.C. since leave of the Court, as provided in Clause (b) of Section 20, has neither been sought nor granted by the Court.
v) That there will be no multiplicity of proceedings arising out of Texas action and it is in fact appellant who is guilty of multiple proceedings at Bombay and Bangalore.
vi) That the suit for compensation, if filed by the defendants in India, would be barred by limitation and the defendants would be running the risk of having the same dismissed on the plea of limitation.
vii) That the defendants who were plaintiff in Texas suit are dominus litis and have the right to choose their forum.
10. Before considering the line of arguments addressed by the learned Advocates, it is not out of place to consider the opinion rendered by Timothy Roger Brymer of Sceptre Court, 40 Tower Hill, London EC 3N 4BB, who is presently an English Solicitor of the Supreme Court and a partner in the firm of Cameron Mark by Hewitt, who has sworn to an affidavit on behalf of the appellant to render some assistance to decide this question.
11. After narrating the chronological events leading to the crash of the aircraft, on the strength of the report of the Director General of Civil Aviation (DGCA), the conclusions drawn by the investigation in relation to proximate accident cause by the Hon’ble Mr. Justice K. Shivashankar Bhat and on the strength of the reports as to what types of issues that will arise for determination, states that after reading the related pleadings vis-a-vis the proceedings instituted at Texas and juridical implications was considered to show that it constitutes a classic case of ‘forum shopping’. According to the Solicitor, the term ‘forum shopping’ was first used in Amercia and has been Judicially defined in the English Courts as:-
“A plaintiff bypassing his natural forum and bringing his action in some alien forum which would give him relief or benefits which would not be available to him in the natural forum.” (Boys v. Chaplin 1971 AC 356).
Obvious examples include higher levels of damages, a broader ability to inspect the other parties documents or a longer time limit in which to bring an action. The first example of ‘forum shopping’ occurred early 19th century and in these early cases, the English Courts restrained ‘unfair’ foreign proceedings where they were considered to be ‘vexatious’ or ‘oppressive’. Though these concepts were never defined Judicially, the English Courts were concerned to establish the motives of a plaintiff and whether these were strictly bona fide. The criteria of ‘oppression’ and ‘vexation’ have been gradually replaced by the Courts giving more consideration to balancing the advantages to the plaintiff and disadvantages to the defendant in restraining foreign proceedings. The essential questions involved are:-
i) Is there another more appropriate Court to which the parties can go in which Justice can be achieved more conveniently and cheaply?
ii) Will the claimant be deprived of a legitimate personal or juridical advantage?
12. In the last ten years, the English Courts have granted an injunction to restrain the pursuit of foreign proceedings in a situation where Justice could be achieved at substantially less inconvenience and expense than in the foreign Court. However, it has been an overriding requirement that the injunction should not deprive the plaintiff in the foreign proceedings of a legitimate personal or juridical advantage which would be available if the foreign jurisdiction were used.
13. The concept of ‘appropriateness’ has been Judicially defined us:-
“The fundamental principle being the proper identification of which as between two competing tribunals is the more appropriate forum in which the case may be tried more suitably for the interests of all the parties and for the ends of justice.” (The Spiliada (1985) 2 Lloyds Rep 116 CA – ).
14. The plaint is essentially based on the opinion of Timothy Roger Brymer. The following facts are also necessary to bring on record :-
“The latest statement of the law in England is contained in the Decision in SNIAS v. LEE KUL JAK, 1987 AC 871, in view of the similarities with the present dispute.
On the 16th December 1990, an Aerospatiale Puma Helicopter crashed in Brunei. As in this accident, the circumstances were investigated by the local DGCA. However, despite the majority of technical and fact witnesses being located locally in Brunei, ultimately legal proceedings were instituted by representatives of one of the deceased passengers in Texas. As in the instant case there were no connecting factors or nexus with Texas.
A copy of the Judgment ultimately given by the Lords of the Judicial Committee of the Privy Council on the 14th May 1987 is now shown to me and marked ‘TRBI’. I would respectfully draw this Honourable Court’s attention to the fact that it was held that foreign proceedings should be restrained if such pursuit was Vexatious’ or ‘oppressive’. As a future requirement, to justify the grant of an injunction, it was possible to demonstrate that this was vital to prevent injustice.
In this case, as well, the involvement of the aircraft operator, Indian Airlines Corporation, is critical. Like Aerospatiale, Airbus would have to institute entirely separate contribution or indemnity proceedings in India against the operator. Judgment of a Texas Court does not in itself constitute the basis of third party contribution or indemnity proceedings.
Any disadvantage to the defendants in having to proceed in India are effectively neutralised by the undertakings given by Airbus as set out in the affidavit of Mr. Henko Von Lachner at paragraph 12 also filed before this Honourable Court. For case of reference I am instructed that Airbus is prepared to undertake that they:-
i) submit to the jurisdiction of the Indian Courts.
ii) waive any statute of limitation defences which were not available at the time the present action was instituted in Texas.
iii) will produce in the Indian proceedings relevant documents and employee witnesses located in France and elsewhere and
iv) will satisfy any final judgment entered against them by the Indian Courts.
The appropriateness of the Indian jurisdiction for resolution of this dispute is in my respectful view best demonstrated by the fact that legal proceedings have already been instituted in the High Court of Judicature at Bombay, Suit number 1652 of 1992, by the majority of defendants. Damages are claimed against Indian Airlines Corporation and Hindustan Aeronautics Ltd., for, inter alia, wilful misconduct and recklessness. Neither company is to my knowledge amenable to either French or US jurisdiction.
Copies of the pleadings in the Bombay Suit are filed with the Honourable Court. In the interests of Judicial efficiency and in order to minimise expenditure of the Court’s time as well as avoiding possibly inconsistent results, if refiled in India i am instructed it would be possible to consolidate the claims made by the defendants in the Texas action with the proceedings currently before the Indian Courts.
In order to prevent injustice, it is vital that multiplicity of proceedings should be avoided and all the issues adjudicated in one single forum in order to avoid possible inconsistent Judgments. Furthermore, as indicated above, it is plain that, in order to recover contribution or indemnify, Airbus will have in effect to bring entirely separate proceedings, without being able to rely on any judgment issued by the Texas Court. This would place them in the oppressive and seemingly ludicrous position of having to prove their, own guilty or culpability, irrespective of the merits.
Plainly in my respectful view, such a situation is likely to result in injustice. In the interests of justice I would therefore respectfully urge that the injunctive relief sought in this application should be granted.”
15. One Mr. Jacques E. Soivet who is the Attorney instructed by the appellant also filed an affidavit. This affidavit also highlighted the difficulties the appellant has to undergo if the suit of the respondents 1 to 9 is to continue in Texas Court.
16. The Secretary of Airbus Industrie, Hanko Von Lachner also sworp to an affidavit under which he has stated that the appellant is prepared to give undertakings to enable for adjudication of all the issues if the case is proceeded in India. They are:-
i) submit to the jurisdiction of the Indian Courts; ii) waive any statute of limitation defences which were not available at the time the present action was instituted in Texas; iii) will produce in the Indian proceedings relevant documents and employee witnesses located in France and elsewhere; and iv) will satisfy in final judgment entered against them by the Indian Courts.
17. The principal grounds under which the order of temporary injunction issued by the Indian Courts always based on establishing a prima facie case. The order of temporary injunction is an aid in support of the probable decree that would be passed on final disposal of the case and therefore while granting the injunction the Court should satisfy that the plaintiff has made out a prima facie case and the balance of convenience will also be in his favour. The plaintiff should establish that in the event of rejecting the order of temporary injunction he will be put to irreparable loss and injury which cannot be compensated by any other means and also the inconvenience that will be caused to the defendant is not so great which cannot be, ultimately, compensated at all.
18. In the matters of granting temporary injunction, a discretionary power is vested to the Trial Court. Normally, the appellate Court will not interfere with such discretionary powers unless it is shown that the Trial Court has not exercised the discretion in accordance with the settled principles of law or the order is perverse. The appellate Judge is not to approach to case as if he were the Trial Judge.
19. The granting or refusing injunctions is a matter resting in the sound discretion with the Trial Court and consequently no injunction will be granted whenever it will operate oppressively or inequitably or contrary to the real Justice of the case. Besides, there are certain equitable principles also which govern the Courts in granting or withholding of the relief of injunction. One of the main considerations is the fairness or good conduct of the party invoking the aid of the Court. The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matters in controversy. The wrong conduct of the plaintiff in the particular matter or transaction with respect to which he seeks injunctive relief precludes from obtaining such relief – LAKSHMINARASIMHIAH v. YALAKKI GOWDA, 1965(1) Mys.L.J. 370.
20. (i) Grant of ad-interim injunction has to course through the following slots;- (i) Prima facie case; (ii) balance of convenience; (iii) irreparable injury to the plaintiff, and (iv) lastly, all injunctions being absolutely discretionary in nature whether there was any overriding consideration that supported the refusal of the injunction by the Court below.
(ii) The existence of a prima facie case in the matter of granting injunction is really the harbinger or the all clear sign to go ahead in investigating other aspects of the question governing the grant or refusal of injunction. If there was no prima facie case at all or the case put forward was so weak and tainted having very little prospect of being accepted by the Court, further questions of balance of convenience and irreparable loss need not be considered since the plaintiff would fall at the very first stile itself. But if there was a prima facie case then other considerations governing the grant of injunction would come into play and will also have to be evaluated before granting or refusing the injunction. In other words the existence of a prima facie case does not permit leap-frogging by the plaintiff directly to an injunction without crossing the other hurdles in between…. Even granting that the plaintiff has an invincible prima facie case, he will not be entitled ex debitiae justiciae, to the grant of an injunction, unmindful of other consequences. If the consequences of granting an injunction are detrimental in nature then an injunction will not be granted even though the plaintiff might have an unbeatable prima facie case. SRI GOWRISHANKARA SWAMIGALU v. SRI SIDDHAGANGA MUTT,
21. In the case of interlocutory injunctions the Court will first consider whether the applicant has established a prima facie case, in the sense it is not a frivolous or vexatious claim but involves a serious matter to be investigated.
Assuming that the applicants have made out a prima facie case, the question that arises then is, as to the balance of convenience between the parties and the imminent and uncompensatable disadvantage or some irreversible detriment that may result to the applicants by the denial of the relief. At this stage the Court cannot proceed on the assumption which would amount to pre-judging the matter in issue. If the balance is fairly even then it may not be improper to take into account, in tipping the scales, the relative strength of each party’s case,
22. The burden of establishing that the inconvenience which the applicants will suffer by refusal of the injunction is greater than that the respondents will suffer, if it is granted, lies on the applicant -PURNA INVESTMENTS v. SOUTHERN S & A, 1977(2) KLJ 266.
22. An injunction cannot be granted when the conduct of the applicant or his agent has been such as to disentitle him to the assistance of the Court by way of injunction. The conduct of the party who seeks the aid of the Court must be (a) fair and honest, (b) and in particular there must be no acquiescence, (c) or delay. The equity jurisprudence declares that he who applies for equity must also have done it, a party applying for an injunction must come into Court with clean hands and a clear conscience. As the relief is of a purely equitable character, the plaintiff must come within the equitable conditions generally imposed upon parties asking equitable relief. He should come not only with clean hands but with spotless clean hands.
23. The principal premise on which the appellant wanted to restrain respondents 1 to 9 has got a direct bearing on the principles laid down in SNIAS v. LEE KUI JAK. inter alia the appellant contends that respondents 4 to 9 have already filed a suit in Suit No. 1652 of 1992 before the High Court of Judicature at Bombay and the said case having compromised and a portion of compensation amount being satisfied by the 10th respondent they should not be allowed to reagitate their right of compensation before the Courts at Texas where the laws of Texas are not in conformity with the laws of India. The further contention of the appellant is that the proceedings before the Texas Court is oppressive and vexatious as the accident took place in India and all the necessary evidence are available in India. Opinions are already rendered by the Authorities that the accident was due to the error of judgment committed by the Pilots. The appellant will be in disadvantageous position if the respondents are not restrained by an order of injunction. The further ground of attack is that if the Suit at Texas is allowed to be proceeded the appellant will also be in disadvantageous position as he cannot seek contribution or indemnity by Indian Airlines and Hindustan Aeronautics Ltd., who have refused to subject themselves to the jurisdiction of Texas Court. As it is said earlier, the appellant is ready and willing to abide by the undertakings he will give before this Court which is in pari materia with the undertakings given by SNIAS.
24. The SNIAS case was decided on 14.5.1987 by the Privy Council. The reason for granting an order of injunction has already briefly adverted to above and the same shall be dealt in an appropriate place.
25. Respondents 1 to 9 filed suit in Texas Court in the capacity of executor of the estates of their near relatives who died in the accident and also damages for the personal injuries suffered by them. Under open Forum provision of Texas Civil Practice and Remedies Code which provides inter alia that suit may be filed where:-
“a (i) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;
(ii) the action has begun in the state within the time provided by the laws of this state for beginning the action;
(iii) in the case of citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.
(b) All matters pertaining to procedure in the prosecution or maintenance of the action in courts of this state are governed by the law of this state.
(c) The Court shall apply the rules of substantive law that are appropriate under the facts of the case.”
26. Texas has strict product liability which does not exist in India. Strict tort liability differs noticeably from the concept of negligence. In so far as damage awards are concerned, accident cases in Texas are generally tried by Juries which are not easily upset on appeal. Negligence evaluates the conduct of the product supplier while strict tort liability focuses solely on the condition of the product. It is sufficient to found jurisdiction if a foreign defendant can be shown to be “doing business” in Texas. It is sufficient if products are sold to purchasers in Texas. This ‘open Courts’ philosophy inherent in the Texas Constitution. According to the appellant, Texas law has absolutely no relevance and is wholly inappropriate to this dispute, as no named defendant is domiciled or has its principal place of business within the State of Texas. In such circumstances, the Indian Courts are manifestly best placed and qualified to apply Indian law.
27. The Suit at Texas involved not only the appellant but also other foreign business entities who had business contacts with the State of Texas out of which some had business contacts in Texas and others no business contacts. The respondents 1 to 9 undertaken to show that the products were designed, manufactured and marked in a defective condition and manner that said products were not unreasonable, dangerous for use by consumers and the said defective conditions of the products manufactured by the defendants were producing and proximate cause of the occurrence made the basis of the suit. The other defendants in the Texas suit are:-
1. Airbus Industrie of North America;
2. Airbus Service Company Inc.;
3. Flight Safety International; Inc.;
4. Aeroformation;
5. Thomson S.A.;
6. Thomson -CSF S.A.;
7. Thomson Corporation of America;
8. Thomson-CSF Inc;
9. International Aero Engines AG;
10. United Technologies Corporation;
11. Pratt & Whitney Company Inc.;
12. Pratt & Whitney Commercial Engine Business;
13. Pratt & Whitney Manufacturing Division;
14. Rolls Royce PLC;
15. Rolls Royce Inc.
28. The respondents 1 to 9 further undertaken to show that the training of the Pilots involved in the crash was deficient in many respects including, but not limited to, a lack of adequate training regarding procedures and evasive manouvres to undertake in emergency situation. Such negligence in the training of the Pilots was a proximate cause of the accident made the basis of the Suit and of plaintiff’s injuries.
28. The above facts discloses that respondents 1 to 9 have undertaken to prove that the accident was not only on the defective manufacturing and there is also little contribution by the error of judgment through the Pilots. They have made necessary ground work and documentation of strict/product liability.
29. We cannot dwelve upon the exclusive concession the appellant wanted to show if respondents 1 to 9 select the jurisdiction of India to prove their strict/product liability but whether the principle of Forum Convenience and their jurisdiction to have their redress in the Court of Texas can be taken away on the premise that the accident occurred in the southern part of India at Bangalore City and there is already advantageous material in favour of the appellant by the result of investigation made by the Aviation Authorities and the report of the Court of Inquiry held by the Hon’ble Mr. Justice K. Shivashankar Bhat of this Court?
30. The respondents 1 to 9 are the Citizens of United Kingdom who are Non-Resident Indians and they have chosen two Forums -one in India and another in America. They have, already received the statutory benefits a person is entitled under the Indian Carriage by Air Act, 1972. In the Bombay suit there was no scope to prove the error committed by the Pilots and the mishandling of the situation by Hindustan Aeronautics Ltd., as the said suit was ended in compromise and therefore legalistically that question is still remained unanswered, if the respondents 1 to 9 were prevented from continuing the suit at Texas which was filed almost more than three years back, whether it is legally justified to prevent them to pursue their suit only on the ground that the appellant claims Forum inconvenience due to several factors such as securing the witnesses from India who were immediately involved in the accident and subsequent investigation by the Texas Courts manned by Juries. We are at the stage of only confined to decide the comparative hardships between them in the event of an order of temporary injunction on the basis of which the suit filed before the Trial Court should conclude on its ultimate end either in favour of the appellant or in favour of respondents 1 to 9 which is the factor one cannot foresee to its natural results. The plethora of Decisions relied by both the sides were helpful for an ultimate end of the Suit and at this stage they are only academical.
31. There is absolutely no controversy that the Doctrine of strict/product liability is not presently recognised in India. But the Hon’ble Supreme Court in Bhopal Gas case 5. , has stated that there is a need for proper legislation and multi-nationals should be bound by various conditions before they commence their activities on the Indian soil. The respondents 1 to 9 before the Texas Court have undertaken to prove the defects in the design, manufacture and marketing which were unreasonably dangerous for use by the consumers and they have further undertaken to prove those defects by involving 15 defendants in that suit. Of these defendants, majority are involved in design and manufacture and therefore, it is an uphill task for respondents 1 to 9 to prove these defects as it involves more technical data and information for which they have collected necessary documents.
32. Civilised jurisdiction have a doctrine that all cases must be tried by the most appropriate and natural Forum. The Doctrine of ‘forum non-convenience’ is not recognised by the Texas State Courts.
33. In Snias v. Lee Kui Jak and Anr. consideration was given by the Privy Council as to whether an injunction should be granted in a situation shown in that case. The sequence of events in the said appeal that on 16th December 1980 a Puma 330 J Helicopter crashed near Kuala Belait in Brunei. All the 12 people on board were killed and one was by name Yong Joon San. This person was a very successful businessman who had accumulated a fortune in the region of US $ 20,000,000. This helicopter was manufactured by SNIAS in France in 1978. At the time of accident it was owned by an English Company, British and Commonwealth Shipping Company (Aviation) Ltd. It was at all material times operated and serviced by Bristow Helicopters Malaysia Sdn. Bhd. (Bristow Malaysia), an associated Company of Bristow Helicopters Ltd., (Bristow UK), and was under contract to Sarawak Shell Bhd. The Brunei Government ordered an inquiry into the accident and a report was submitted, which attributed that the accident was due to the defects that was developed in the engine at the time. Voluminous report was made available which mainly point out the defects in the engine.
34. The proceedings were started by Lee Kui Jak, widow of the deceased along with another as administrator. Three sets of proceedings were started in December 1981 in Brunei, France and Texas. The Brunei proceedings were against Bristow Malaysia as first defendant and SNIAS as second defendant. Here Bristow Malaysia were made responsible for the accident As against SNIAS, allegations were made of negligent design and manufacture. The French proceedings were against SNIAS alone. The Texas proceedings were also issued against SNIAS, British Malaysia and Sarawak Shell Bhd. Totally the proceedings before Texas Court was against 8 defendants.
35. In the course of 1983, an agreement was reached whereby all proceedings as between the plaintiffs on the one hand, and the Bristow Companies and Shell Companies on the other hand, were settled. A general release was granted to these Companies by the plaintiffs. The settlement, together with an apportionment between the widow and her three children, was approved by the Chief Registrar in Brunei. SNIAS were not parties to the settlement as they were not invited.
36. Meanwhile, little progress was being made in the Texas proceedings against SNIAS and their Associated Companies. The Attorneys were changed by the plaintiffs and in February 1986 a vigilant computer drew the attention of the Texas Court to the lack of progress in these proceedings. A motion to dismiss the retainer were moved. A motion to dismiss was on the ground of Forum non conveniens. The SNIAS were not successful to obtain an order of dismissal of the proceedings on the ground of forum non conveniens. Therefore, they turned their attention to the possibility of obtaining an injunction from the Brunei Court. On 20th of December an application was moved to Mr. Commissioner Rhind for injunction which was refused. SNIAS then lodged a notice of appeal and due to the urgency it was taken up in March 1987. During the hearing undertakings were given with a view to fortifying their respective positions, by both the parties. The plaintiffs first stated that if SNIAS wished for trial by Judge alone in Texas, they would agree to such a trial. Second, they accepted that, the law of Brunei being applicable both as to liability and quantum in respect of the trial of the matter in Texas, no claim lay against SNIAS either (a) in consequence of strict liability, or (b) for punitive damages. In their turn, SNIAS gave a number or undertakings, which ran nearly three pages and the full text is appended to the Judgment of the Privy Council. Their Lordships have formed the opinion that the Appeal should be allowed, and that an injunction ought to be granted restraining the plaintiffs from further proceeding with their action against SNIAS in the Texas Court as Their Lordships considered the undertakings of SNIAS set out in the Appendix.
37. The undertakings by SNIAS covers the necessary safeguards for the respondent in that case for conducting the case before the jurisdiction of Britain. The necessary letter of credits were also undertaken to furnish for prompt payment of the compensation immediately after the Court decides for the payment.
38. The appellant is prepared to give any undertaking before the Courts in India in the event that the respondents submit to this jurisdiction or in case the Trial Court orders to that effect.
39. Some names of the defendants are mentioned in para 27 of this Judgment though there are still more who have been made parties by the respondents 4 to 9. Several declarations were filed before the United States District Court where Civil Action No. G-92-102 initiated as to how some of the defendants though connected in manufacturing of the Airbus and they have undertaken to abide by their declaration. This was made under Anti Perjury Law of the United State of America.
40. Civilised jurisdiction should have a doctrine or principle of law that all cases must be tried by the most appropriate and natural Forum. There must be some link between the event sued upon and the jurisdiction of the Court. The doctrine of Forum non convenience is not recognised by the Texas State Courts in respect of losses occurring prior to the 1st of September 1993 and is of only limited application in the Federal Courts.
41. Jacques Soiret in his affidavit said the chronology of the Texas proceedings and the fact that the appellant submit to the jurisdiction of the Indian Courts.
42. When the jurisdictional fact came before the District Court of Galveston Division Mr. Samuel B. Kent, the District Judge passed an order on 29.6.1993. The learned Judge is also of clear view that a Forum is adequate if all the parties are subject to jurisdiction there, the entire case can be heard there, and all the parties will be treated fairly. The learned Judge further observed that defendants have agreed to submit to the jurisdiction of the Courts of either India or France, to waive all limitations defenses, and to condition dismissal from the Court to allow for reinstate if the foreign Courts decline to exercise jurisdiction. Under these circumstances, both India and France are adequate foreign Forums. The Court further observed that in the instant case, after carefully examining the record, the Court is convinced that, assuming it has jurisdiction and that venue was properly laid, a Forum non convenience dismissal is appropriate. Moreover, this accident occurred in India. Should a view of the crash site be necessary, India would be a much more convenient Forum and France would be at least as convenient. Also, many of the witnesses with knowledge of defendants manufacturing and design procedures are located in France. Similarly, many of the witnesses with knowledge of the crash and of related activities subsequently undertaken are in India. The Courts of India and France are in a better position to apply their own law and in least as good a position to apply each other’s law as is this Court. More over both France, because of its relationship with defendants, and India, because of the situs of the crash, have an interest in deciding this case. Texas has none, beyond a general commitment, now legislatively abolished and never, in any case, recognised by the Federal Courts, to serve as the World’s Court House. Thus, retention of this case in this Court would be an extreme imposition to Texas jurors, Texas Court personnel, and other litigants with cases pending before this Court.
43. However, due to a technical issue concerning concepts of diversity of the claimants’ citizenship the learned Judge remanded the case to the State Court. It is submitted that this is concurrently the subject of an appeal to the United States Court of Appeals for the Fifth Circuit.
44. The issues of Vexatious, oppressive and injustice, were again dealt with at length in the subsequent case of AMCHAN PRODUCTS INC. ET AL v. WORKERS’ COMPENSATION BOARD, 75 DLR (4th) 1 BCCA. The Decision concerned 194 plaintiffs, of whom approximately 100 were British Colombia residents, who claimed damages in respect of injuries sustained as a result of, inter alia, inhalation of asbestos fibres. Notwithstanding the absence of any Texas nexus, proceedings were Instituted in the Harrison Country Texas 71st Judicial District alleging negligence by reason of the defendant’s failure to warn of health risks associated with the use of asbestos. An injunction was sought restraining the Texas proceedings through the British Colombia Courts. Ultimately, this was granted on terms: “The defendants point out that no action has been commenced by them in British Colombia whereas in the cases referred to in argument there were actions commenced in both jurisdictions. I do not think that this is of any significance. If this fact was definitive then a complaint could always defeat an anti suit injunction by simply not commencing an action in a jurisdiction where the anti suit injunction is sought. That cannot be right.”
45. The issue of Forum Shopping has also been considered in PIPER AIRCRAFT COMPANY v. GAYNEL REYNO, 70 L.Ed. 2d (Supreme Court of the United States) where actions were brought in the United States on behalf of the estates of several Scottish citizens killed in an accident involving a twin engined Piper Aztec Aircraft in July 1976. This Aircraft was manufactured in Pennsylvania by the Piper Aircraft Company. However, notwithstanding the obvious connection with the United States, the United States Supreme Court ultimately held that : “Although evidence concerning the design, manufacture, and testing of the place and propeller is located in the United States, the connections with Scotland are otherwise “overwhelming”. The real parties in interest are citizens of Scotland. Witnesses who could testify regarding the maintenance of the aircraft, the training of the pilot and the investigation of the accident and all essential to the defence are in Great Britain.”
46. When a tragic industrial disaster occurred in the City of Bhopal, State of Madhya Pradesh, law suits were filed by American Lawyers in the United States on behalf of thousands of Indians. The actions were ultimately joined and assigned by the Judicial panel on multi District legislation to the Southern District of New York by an order of February 6th, 1985. John F. Keenan, United States District Judge, has considered the doctrine of Forum non convenience which allows a Court to decline jurisdiction, even when jurisdiction is
authorised by a general venue statute. GULF OIL CORPORATION v. GILBERT, 33 US 501 (1947) and Piper Aircraft Co. v. Reyno 454 U.S. 235 (1981)
were also considered along with several other Judgments of the
United States. During the course of discussions innovations in the
Indian Judiciary system was considered from the Indian Common Law
Legal System by Prof. Galanter. Numerous examples from
Mr. Palkhivala, former Ambassador of India to the United States, also
considered. “A legal system is not a structure of fossils but is a living
organism which grows through the Judicial process and statutory
enactments.” The Court also taken into consideration the delays and
back log exist in Indian Courts. The affidavits of Mr. Palkhivala and
Mr. Dadachanji were considered. By summing up, the learned Judge
held that : “the Indian legal system provides an adequate alternative
forum for the Bhopal litigation. Far from exhibiting a tendency to be so
‘inadequate or unsatisfactory’ as to provide no remedy at all, the
Courts of India appear to be well up to the task of handling this case.
Any unfavourable change in the law for plaintiffs which might be
suffered upon transfer to the Indian Courts, will, by the Rule of Piper,
not be given “substantial weight”. Differences between the two legal
systems, even if they inure to plaintiffs’ detriment, do not suggest that
India is not an adequate alternative forum. As Mr.Palkhivala asserts
with some dignity, “while it is true to say that the Indian system to day
is different in some respects from the American system, it is wholly
untrue to say that it is deficient or inadequate. Difference is not to be
equated with deficiency.” Thereafter, the Court proceeded to dismiss
the consolidated case on the ground of Forum non convenience with
the conditions that the Union Carbide shall consent to submit to the
jurisdiction of the Courts of India and shall continue to waive defenses
based upon the statute of limitations; it shall agree to satisfy any
Judgment rendered by an Indian Court, and if applicable, upheld by
an appellate Court in that Country, where such judgment and
affirmance comport with the minimal requirements of due process;
and it shall subject to discovery under the model of the United States
Federal Rules of Civil Procedure after appropriate demand by
plaintiffs.
47. The Municipal Law of India confers jurisdiction upon the local Courts over non-resident foreigners. In LALJI RAJA & SONS v. HANSRAJ NATHURAM, the Court held that Section 20(c) of the Civil Procedure Code confers jurisdiction on a Court in India over the foreigners if the cause of action arises within the jurisdiction of that Court.
48. The Madras High Court in SWAMINATHAN v. SOMASUNDARAM, AIR 1938 Madras 731 in considering whether the Indian Courts have jurisdiction over non-resident foreigners, it was held that even with respect to non-resident foreigners, the Courts in British India have jurisdiction in personam in suits based upon a cause of action arising in British India.
49. In CHUNNILAL v. DUNDAPPA, , the Bombay High Court held that under Section 20 C.P.C. a Court in British India has power to pass judgment against a non-resident foreigner provided the cause of action arises within the jurisdiction of the Court.
50. Similarly, a Division Bench of Patna High Court in RAMCHANDRA SINGH v. GOPI KRISHNA, held: that according to the principles of International Law a Court has no jurisdiction to entertain a suit against a foreigner who did not permanently or temporarily reside within its jurisdiction and who had not submitted to that jurisdiction. However, this is not the case where local Legislature confers jurisdiction upon a Court situated in a particular territory, to entertain suits against foreigners in situations where a cause of action arises wholly or partly within its jurisdiction, as in this instance. In such a case, the Rule of Private International law is subject to and over-ridden by the Rule of local Municipal Law.
51. In the case of OIL & NATURAL GAS COMMISSION v. WESTERN CO. OF NORTH AMERICA, , the Supreme Court of India considered the situation as to whether the Western Company of North America could be allowed to proceed in an American Court according to a law which was clearly dissimilar to Indian Law in paragraphs 15 and 18 of the Judgment it was held thus:-
“We are of the opinion that the appellant, ONGC, should not be obliged to face such a situation as would arise in the light of the aforesaid discussion in the facts and circumstances of the present case. To deprive the appellant (ONGC) in a tight corner and oblige it to be placed in such an inextricable situation as would arise if the Western Company is permitted to go ahead with the proceedings in the American Court, would be oppressive to the ONGC. It would be neither just nor fair on the part of the Indian Court to deny relief to the ONGC when it is likely to be placed in such an awkward situation if the relief is refused. It would be difficult to conceive of a more appropriate case for granting such relief….
In the result we are of the opinion that the facts of this case are eminently suitable for granting a restraint order are as prayed by ONGC. It is no doubt true that this Court sparingly exercises the jurisdiction to restrain a party from proceeding further with an action in a foreign Court. The question however is whether on the facts and circumstances of this case it would not be unjust and unreasonable not to restrain the Western Company from proceeding further with the action in the American Court in the facts and circumstances outlined earlier. We would be extremely slow to grant such a restraint order but in the facts and circumstances of this matter we are convinced that this is one of those rare cases where we would be failing in our duty if we hesitate 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 discussed earlier.”
52. The Calcutta High Court in B.R. HERMAN AND MOHATTO (INDIA) LTD. v. SWEDISH EAST ASIA CO. LTD., , held that in determining the most suitable Forum in a situation where the parties had made a pre-existing contractual choice of a Court of a particular Country to resolve disputes, regard will be taken of the nature of necessary evidence to be produced by the plaintiff and the place where it will be most easily available, notwithstanding the fact that the Bill of Lading in this case provided for resolution of disputes by the Courts in Sweden according to Swedish Law.
53. The contesting respondents have raised a plea that Section 41(a) of the Specific Relief Act is a bar to grant an injunction as the appellant has failed to show how multiplicity of proceedings could be prevented. According to the contesting respondents there is one and the only action initiated in the United States of America against the appellant. The Supreme Court in Oil & Natural Gas Commission’s case, cited supra, at para 18 while dealing with Section 41 of the Act has held that Section 41 is only relevant in a situation where an injunction is sought to restrain a party from instituting or prosecuting an action in a Court in India which is either a co-ordinate jurisdiction or is higher than the Court from which the injunction is sought in the hierarchy of Courts in India. The Court further held that the Indian Courts are competent to grant an injunction to restrain the parties from continuing proceedings in foreign Courts in appropriate cases.
In another Decision V/O TRACTO EXPORT v. TARAPORE & CO., it was inter alia held in para 29 that in a situation where a suit was being tried in the Courts of this Country, the only proper course to follow was to restrain a Russian Firm which had submitted to a Moscow Tribunal for adjudication of the relevant dispute for so long the suit in this Country was pending.
54. The contesting respondents who are of Indian origin, reside and are domiciled in England where, as in India, traditional Common Law concepts are applied in evaluating damages. It would therefore be manifestly easier for the Indian Courts to deal with both liability and quantum. It is submitted that it would be unusual to say the least for a Texas Court to consider liability on the basis of Common Law concepts of causation and principles of negligence rather than strict product liability. Further more, if the Texas trial Judge mis-applies, or makes errors of law any Appeal to the Texas Court of Appeals would be limited. In effect the question is more likely to be not “was the Judge wrong in law?” but “can he be shown to be wrong in law on the materials which he had to consider.” The connecting factors is in respect of witnesses and the evidence. As the scene of the accident, plainly those witnesses who were immediately involved in the accident and the subsequent investigation are physically available in India. They include eye witnesses, Inspector of Accidents, IAL Personnel, Air Traffic Controllers, Employees of HAL, Survivors, Rescue Services, DGCA Personnel responsible for pilot licensing and training. The Court of Inquiry headed by Mr. Justice Shivashankar Bhat which involved a rigorous and far reaching analysis of all aspects of accident causation is available when the same was conducted in Bangalore. Access to and ability to inspect the accident site and local topography are vital in any consideration of liability. The appellant has undertaken that all witnesses under the control and documentary evidence in his possession in France relating to aircraft design and Pilot training will be produced in India It has further undertaken that it will honour and discharge in full any Judgment of the Indian Courts based on adversarial proceedings actually tried to final judgment which determines or finds that a defect existed in the design or manufacture of the aircraft, or any of its constituent components, avionics, engines or systems.
55. When we come to the question of limitation, if the contesting respondents were to make their claim in India the parties are at variance on this point. The appellant in para 12 of the affidavit of Mr. Hanko Van Lachner has undertaken to waive any statute of limitation defences which were not available at the time the present action was instituted in Texas. According to Mr. H.B. Datar this undertaking in itself constitutes an independent cause of action upon which the contesting respondents can seek their remedies.
56. Under the principles of Common Law, as applied by the English Courts, Statutes of Limitation are procedural, as opposed to substantive. They can therefore be expressly waived or extensions of time granted.
57. In FIRM RAMANATH v. FIRM BHAGATRAM, and FIRM RAMNATH RAMCHANDER v. FIRM BHAGATRAM & CO., Section 14 of the Limitation Act was considered and in both the Decisions it has been held that time spent in foreign Court can be excluded under Section 14 of the Limitation Act while computing the period of limitation. Therefore, if the plaint was taken by the Texas Court for presentation in Indian Courts, the time spent in Texas Court should be excluded under Section 14 of the Limitation Act with a consequence that the suit will not be time barred in any event. In addition to this express waiver, as in the cases, of SNIAS will bind the parties.
58. The multiplicity of proceedings which can be avoided is simply in impleading of Indian Airlines, DGCA and Hindustan Aeronautics Ltd., who are not the parties before the Texas Courts and if any liability is fixed few of the parties being joined Tort sores will be eligible for subscription without any separate suit.
59. On the question of oppressive character of Texas Suit, which is the main ground for the appellant to move the Indian Courts, are that non-submission of Indian Airlines and DGCA to the Texas jurisdiction will create to attendant difficulties and expenses in securing witnesses from India to give evidence in Texas. In the event that the witnesses are non co-operative, then it would be impossible to obtain their testimony. The question of travel restrictions to abroad without passports and visas would also arise. There would be problems in getting passports and visas. Added to this, the Indian Airlines have gone on record to say that they will never submit to the jurisdiction of Texas. The contesting respondents have already made allegations of gross-negligence and wilful ‘misconduct in their pleadings filed in the Bombay Court, plainly, absence of the Airlines in the Texas proceedings will entail multiplicity of proceedings in that separate contribution action will have to be ultimately instituted in India. Therefore, the Indian Airlines would have to satisfy the Indian Court independently of any evidence provided to the Texas Court that they are in law liable. This would place them in the ludicrous position of having proved their own culpability. If they fail then they will have no claim over against Indian Airlines, Hindustan Aeronautics Ltd., or the Indian DGCA notwithstanding the significant criticisms made of these entities contained in the official enquiry report, as well as the allegations contained in the Bombay proceedings. To allow the defendants to continue their action in Texas, which is not the natural Forum, for either of the parties the most appropriate and natural Forum is India and therefore the suit instituted at Texas is oppressive and lead to serious injustice.
60. In substance the contention of the appellant is that serious injustice which will result from multiplicity of proceedings in this case is more particularly referred to in the affidavit of Timothy Brymer is present. The liability of Indian Airlines to rely on any Texas Judgment to secure contribution or indemnity from the remaining parties is clearly oppressive in circumstances virtual identical to those dealt with Lord Goff in his Judgment, and therefore the Justice requires the grant of an injunction. If the proceedings continue in Texas, a non-natural Forum, Indian Airlines cannot join or obtain contribution from, inter alia, Hindustan Aeronautics Ltd., or the DGCA all of whom are said to be largely responsible for the crash. Irrespective of the Indian or Texas Law applies, the appellant may have to give discovery on Texan principles and if liable, may be paid Texan levels of damages in case which has no conceivable link with Texas. It will also be inhibited in dealing with discovery formalities. Not only is this unjust to those plaintiffs who have settled at non-American levels, and to Airbus, it goes far beyond anything which could be regarded as truly compensatory for these victims. This is a case governed by Indian Law which Indian Courts are best placed to apply. In view of the undertaking given by the appellant, the proper Forum is India where the Indian Law governs the contracts of carriage as well as the legal relationships involved in the litigation. Any tort alleged by the contesting respondents would be an Indian Tort and governed by Indian Law. The defendants have settled with an Indian Air Carrier in respect of internal Indian flight, they should not be allowed to go to a jurisdiction which has no connection and institute claims. Therefore, this is an appropriate case for exercise of Courts discretion in this respect.
61. The contesting respondents have maintained that the Indian Court cannot decide whether the American Court has jurisdiction and such a prayer cannot be granted. It is conceded that the jurisdictional fact at Texas is in the appellate stage. According to them, the pleadings in the Suit No. 7100 of 1992 filed before the High Court of Judicature at Bombay are verbatim the same in the suit filed before the Court of the City Civil Judge, Bangalore and therefore, the appellant has not come up with clean hands. According to them, the suit filed by them in the Court of Texas is neither vexatious nor oppressive and by any order of this Court-it amounts to preventing jurisdiction of a person of his valuable right to file a suit and get compensation. References are made to the book “The Common Law in India” written by M.C. Setalvad and Salmond on Jurisprudence, Eleventh Edition. Mr. M.C. Setalvad, the learned Author at page 64 says:-
“The courts applying the general rules embodied in the codes to new situations would naturally look for assistance to cases decided on similar situations in England. Where the language of the code was clear and applicable no question of relying upon English authority would arise. But very often the general rule in the Indian Code was based on an English principle and in such cases the Indian courts frequently sought the assistance of English decisions to support the conclusions they reached. They could not do otherwise for not only the general rules contained in the codes but some of the illustrations given to clarify the general rules were based on English decisions.”
62. In COHEN v. ROTHFIELD,.SCRUTTON L.J., dealing in jurisdiction to stay actions, held that where an English Court is asked to stay an action commenced in a foreign jurisdiction – that is, one outside the British Empire – on the ground that the plaintiff in the foreign action is also plaintiff in an English action, the burden is on the person asking for relief from the English Court to satisfy it that the plaintiff in the foreign Court cannot obtain any advantage from the foreign procedure that he would not obtain in the English Court. It is not prima facie vexatious for the same plaintiff to commence two actions relating to the same subject matter, one in England and one abroad. The applicant must prove a substantial case of vexation resulting from the identity of proceedings, remedies and benefits, or from the existence of some motive other than a bona fide desire to determine disputes.
63. In TYBURN PRODUCTIONS LTD. v. CONAN DOYLE, the question before the Chancery Division was Jurisdiction of English Courts to entertain claims relating to validity of rights arising under foreign copy right law under foreign intellectual property rights. The plaintiff applied to English Courts to determine whether author’s daughter entitled under United States law to copyright in famous detective characters created by her father and whether Court having jurisdiction to entertain the action.
The Court held that the Rule of Law that English Courts had no jurisdiction to entertain an action bringing into issue title to or damages for trespass to foreign land extended to actions concerning the validity of infringement of rights arising under foreign intellectual property laws. Accordingly, disputes over the title to rights arising under foreign patent, copyright or trade mark laws were properly to be considered as actions of a local nature, having in each case a necessary connection between the facts and particular locality, and as such fell exclusively within the jurisdiction of the Courts of the Country by the law of which those rights were created. It followed that the question whether Sir Arthur’s daughter was entitled under United States Law to copyright in the character of Sherlock Holmes and Dr. Watson created by her father was not justiciable in the English Courts and as a result, the declaration and injunction sought by TP Ltd would not be granted and its statement of claim would be struck out as disclosing no reasonable cause of action.
This Decision establishes the principle of exclusive jurisdiction of the Courts of the Country by law of which those rights were created.
64. In BRITISH AIRWAYS BOARD v. LAKER AIRWAYS LTD. AND ORS., (1984) 3 AII E.R. HL 39, the question again was the circumstances under which the Court will restrain foreign proceedings when there was conflict of laws. The facts briefly are; “International air carriage between the United Kingdom and the United States of America was regulated by a treaty (known as ‘Bermuda 2’) signed in 1977 under which each Country was entitled to designate Airlines of its own nationality to fly particular routes across the North Atlantic. The respondents were two United Kingdom Airlines which were designated under Bermuda 2 and were also Members of the International Air Transport Association (IATA) as Association of International Airlines which, inter alia, had agreed that Members would charge uniform fares on particular routes, including translantic routes. The appellant was a designated United Kingdom Airlines under Bermuda 2 from 1977 until its collapse in 1982. The appellant, which was never a Member of IATA, started a low fare scheduled service across the Atlantic which considerably undercut the fares charged by IATA Airlines, including the respondents. In retaliation the IATA Airlines introduced fares comparable to the appellant’s fare but including in-flight amenities for which the appellant charged extra. In 1982 the appellant went into liquidation and shortly afterwards brought a civil action in the United States District Court against a number of IATA Airlines, including the respondents, alleging that those Airlines had breached United States anti-trust laws by conspiring to eliminate the appellant as a competitor by fixing ‘predatory’ Air Fare Tariffs which forced the appellant out of business.
A substantive damages was claimed. The House of Lords presided by Lord Diplock and other four Lords held: “When a foreign Court was the only forum which was of competent jurisdiction to determine the claim of plaintiff who was amenable to the jurisdiction of English Courts, an English Court could intervene to issue an injunction restraining the plaintiff from bringing his claim in the foreign Court, but only if the bringing of that claim was unconscionable, in that it would infringe a legal or equitable right of the defendant not to be sued in the foreign Court…. However, considering the fact that appellant’s claims was based on the United States anti-Trust laws, which were purely territorial in application, and since the appellant could not bring an action in conspiracy in England, the only forum in which the appellant could bring its action against the respondents was the United States District Court.
The principle laid down in this Decision is when a particular law was purely territorial in application an action will cover the jurisdiction of such place.
65. In SOUTH CAROLINA v. ASSURANTIE MAATSCHAPPIJ, (1986) 3 All. E.R. HL 48 the question before the House of Lords was the restraint of foreign proceedings and whether injunction would be granted restraining defendants from continuing foreign proceedings.
The facts are:- “The plaintiffs, a United States Company, entered into contracts of reinsurance with a number of Insurance Companies in London, including the defendants. Subsequently, the plaintiffs began two actions in England claiming substantial sums due from the defendants. The defendants intimated that their defence would allege misrepresentation and non-disclosure on the part of the plaintiffs, and in order to investigate and make good those defences the defendants requested discovery of documents held by the plaintiffs’ business associates and underwriting agents in the United States. When that request was refused the defendants lodged a petition for discovery in the United States District Court with a view to using the United States procedure for pre-trial discovery to obtain the documents. The plaintiffs applied to the English Court for, inter alia, an injunction restraining the defendants from taking any further step in the United States proceedings. The Judge granted the injunction. The defendants appealed to the Court of Appeal, which affirmed the decision on the ground that, unless the circumstances were wholly exceptional, the Court would exercise its inherent jurisdiction to control its own proceedings by restraining a party to an action begun in England from invoking foreign procedural remedies to assist in preparing his case in the English action. The defendants appealed to the House of Lords.
The principle laid down Per Lord Bridge, Lord Brandon and Lord Brightman that in all cases in which it appears to the Court to be just and convenient to do so in view of the fact that Section 37(1) of the Supreme Court Act, 1981 on its face gave the Court very wide powers to grant an injunction that discretion to grant an injunction was (subject to two immaterial exceptions) limited to two situations, namely (a) where a party to an action had invaded or threatened to invade a legal or equitable right of another party which was amenable to the jurisdiction of the Court, and (b) where one party had behaved or threatened to behave in a manner which was unconscionable. In the exercise of that discretion the Court had power to grant an injunction restraining a party from beginning or continuing proceedings against another party in a foreign Court but only if it could be shown that the foreign proceedings invaded or threatened the other party’s rights or amounted to unconscionable conduct, and in any event, the jurisdiction would be exercised with caution because it involved indirect interference with the process of a foreign Court.”
67. However, Their Lordships have reversed the Decision of the Court of Appeal because (a) the plaintiffs had not shown that the United States procedure for pre-trial discovery would invade a Iegal or equitable right of the plaintiffs, (b) the defendants conduct in starting the United States proceedings with a view to using that jurisdictions pre-trial discovery procedure did not amount to unconscionable conduct which interfered with the English Court’s control of its own process….. (c) the defendants’ conduct in seeking to exercise a right potentially available to them under the United States law did not in any way depart from or interfere with the procedure of the English Court.”
68. In CASTANHO v. BROWN & ROOT (UK) LTD., (1981) 1 All E.R. HL 143, the plaintiff’s action brought in England claiming damages for personal injuries were initially ended with an order for the defendant to make interim payments on admitting liability. Thereafter the plaintiff purported to discontinue English action and commencing action in America in hope of getting higher damages. The defendant applied for order to strike out notice of discontinuance and for injunction to restrain plaintiff continuing proceedings in America and commencing other proceedings there or elsewhere, whether injunction should be granted.
The House of Lords opined that although an injunction restraining proceedings in a foreign jurisdiction could be granted whenever it was appropriate to avoid injustice, in seeking an injunction the defendants were required to show both the the English. Court was a forum to which they were amenable and in which Justice could be done between the parties at substantially less inconvenience and expense than in Texas and also that an injunction would not deprive the plaintiff of a legitimate personal or juridical advantage available to him in Texas. The prospect of higher damages in Texas was a legitimate personal or juridical advantage, available to the plaintiff, and, furthermore, the balance of convenience came down clearly in the plaintiff’s favour since the Texas Court was as natural and proper a Forum as England.
69. A mere fact that the Indian Courts does not have the strict product liability law, it is not wise to say that in such a situation and parties can go without any remedy. As it was done in CHARAN LAL SAHU v. UNION OF INDIA (Bhopal Gas Disaster) that such antiquated acts can be drastically amended or fresh legislation should be enacted to save the situation.
70. If the action is brought in India the dispute will benefit all the parties to reach a final stage. It should not be overlooked that many of the victims are Indian citizens. They may be persuaded to bring fresh actions on the basis of Decisions rendered at Texas Court before the Indian Courts. If the proceedings are continued at Texas they have no benefit to implead as interested parties to the claim. On the contrary if the suit is brought before Indian Courts, the executors of the victims will have the benefit to join as necessary parties to the suits. This is the added advantage to the legal representatives of the persons died in the accident. The persons who escaped from the clutches of death, can seek redress for their disability.
71. A mere fact that there is no law on strict product liability in India cannot be taken as a hindrance to decide the claim of respondents 1 to 9. While deciding the suit, the Court can take the assistance of Assessors as it was done in the Court of Inquiry rendered by the Hon’ble Mr.Justice K. Shivashankar Bhat, a Judge of this Court. In addition, a case of this nature if conducted in India it brings a new outlook to Indian Laws which can be availed by the Indian citizens, if such occasion arises in future.
72. In deciding a case for compensation both latent and patent defects should be considered vis-a-vis the negligence of Pilots, commissions and omissions on the part of the personnel involved in the operation.
73. Therefore, I am of the firm view that the appellant has made out a prima facie case for grant of temporary injunction pending disposal of O.S.No. 7517 of 1992 which substantially take care the interest of both the parties on the basis of the undertaking given by the appellant and if necessary, some more undertaking by the appellant should be insisted in accordance with the SNIAS case cited supra. This will protect the interest of both parties. Having regard to the fact that one of the hindrance according to respondents 1 to 9 related to delay in disposal of the case, the Trial Court may be appraised the special significance the case involved and may be directed to proceed with the case from day-to-day after allowing the contesting respondents to put forth their claim. However, this is subject to what the Trial Court decides on the merits in O.S.No. 7517 of 1992.
74. In the result, this Appeal is allowed. The impugned order dated 10.6.1993 passed on I.A.No. I in O.S.No. 7517 by the III Additional City Civil Judge, Bangalore, is hereby set aside. An order of temporary injunction is granted to the appellant as prayed for pending disposal of the suit.
The learned trial Judge who has conducted this case is hereby directed to give top most priority, if necessary the case shall be taken from day-to-day and dispose of the same within three months from to-day. The learned Advocates who are representing the parties shall render the assistance in deciding the case expeditiously.
There is no order as to costs.
