{"id":146207,"date":"2011-03-31T00:00:00","date_gmt":"2011-03-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/essel-sports-pvt-ltd-indian-vs-board-of-control-for-cricket-in-on-31-march-2011"},"modified":"2018-09-20T11:28:20","modified_gmt":"2018-09-20T05:58:20","slug":"essel-sports-pvt-ltd-indian-vs-board-of-control-for-cricket-in-on-31-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/essel-sports-pvt-ltd-indian-vs-board-of-control-for-cricket-in-on-31-march-2011","title":{"rendered":"Essel Sports Pvt. Ltd.(Indian … vs Board Of Control For Cricket In … on 31 March, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
Essel Sports Pvt. Ltd.(Indian … vs Board Of Control For Cricket In … on 31 March, 2011<\/div>\n
Author: Vikramajit Sen<\/div>\n
*     IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+     FAO(OS) No.107\/2010 & CM Nos. 2517\/10, 2520\/10,\n6557- 58\/10 & 6561-62\/10\n\nEssel Sports Pvt. Ltd.          ...Appellant through\n(Indian Cricket League)         Mr. Harish Salve, Sr. Adv.,\n                                Mr. C.S. Vaidyanathan, Sr.\n                                Adv., Mr. Maninder Singh,\n                                Sr. Adv. with Ms. Pratibha\n                                M. Singh, Ms. Surabhi\n                                Mehra & Mr. Nikhil Mehra,\n                                Advs.\n\n                    versus\n\nBoard of Control for Cricket    .....Respondent through\nin India & Ors.                 Mr. C.A. Sundaram, Sr. Adv.\n                                with Ms. Radha\n                                Rangaswamy, Mr. Raman\n                                Kumar, Mr. Harsh Kaushik &\n                                Mr. Amit Sibal, Advs.\n                                Mr. Ramji Srinivasan, Sr.\n                                Adv. with Ms. Dahlia Sen\n                                Oberoi, Ms. Manya Kumar &\n                                Mr. Zeyaul Haque Advs. for\n                                Respondent Nos.2 and 3.\n\n                    WITH\n\n      FAO(OS) No.154\/2010 & CM No.4243\/2010\n\nBoard of Control for Cricket    .....Appellant through\nin India                        Mr. C.A. Sundaram, Sr. Adv.\n                                with Ms. Radha\n                                Rangaswamy, Mr. Raman\n                                Kumar,Mr. Harsh Kaushik &\n                                Mr. Amit Sibal, Advs.\n\n                    versus\n\nEssel Sports Pvt. Ltd. & Ors.   ...Respondent through\n(Indian Cricket League)         Mr. Harish Salve, Sr. Adv.,\n                                Mr. C.S. Vaidyanathan, Sr.\n                                Adv., Mr. Maninder Singh,\n                                Sr. Adv. with Ms. Pratibha\n\n\nfao(os)107.2010 & 154.2010                          Page 1 of 67\n                                     M. Singh, Ms. Surabhi\n                                    Mehra & Mr. Nikhil Mehra,\n                                    Advs.\n                                    Mr. Ramji Srinivasan, Sr.\n                                    Adv. with Ms. Dahlia Sen\n                                    Oberoi, Ms. Manya Kumar &\n                                    Mr. Zeyaul Haque Advs. for\n                                    Respondent Nos.2 and 3.\n\n%                             Date of Hearing : January 10, 2011\n\n                              Date of Decision : March 31, 2011\n\n      CORAM:\n*     HON'BLE MR. JUSTICE VIKRAMAJIT SEN\n      HON'BLE MS. JUSTICE MUKTA GUPTA\n      1. Whether reporters of local papers may be\n         allowed to see the Judgment?                 Yes\n      2. To be referred to the Reporter or not?       Yes\n      3. Whether the Judgment should be reported\n         in the Digest?                               Yes\n\nVIKRAMAJIT SEN, J.\n<\/pre>\n
1.    This Judgment will dispose of connected Appeals No.<\/p>\n
FAO(OS) 107\/2010 and FAO(OS) 154\/2010 emanating from the<\/p>\n
common Order of the learned Single Judge dated 4.2.2010, by<\/p>\n
means of which an interim injunction           on the Plaintiff’s<\/p>\n
application under Order XXXIX Rule 1 and 2 Code of Civil<\/p>\n
Procedure, 1908 (CPC for short) restrained the Defendant, Essel<\/p>\n
Sports Pvt. Ltd. (ESPL) from proceeding against the Plaintiff,<\/p>\n
the Board of Control for Cricket in India (BCCI), in Courts in<\/p>\n
England. The Plaintiff submits that there is complete identity<\/p>\n
between the cause of action of the notified lis proposed and<\/p>\n
thereafter actually filed on 4.2.2010 in the High Court of Justice,<\/p>\n
fao(os)107.2010 & 154.2010                               Page 2 of 67<\/span>
\n Chancery Division, London and the dispute which is subject<\/p>\n
matter of Suit, CS(OS) No.1566\/2007, filed by ESPL against the<\/p>\n
BCCI presently pending in this High Court. By the subject<\/p>\n
Order, the learned Single Judge vacated the injunction relating<\/p>\n
to the International Cricket Council (ICC) and the England &<\/p>\n
Wales Cricket Board (ECB).\n<\/p>\n
2.    The facts, in a nutshell, are that ESPL started a cricket<\/p>\n
tournament in the name and style of the Indian Cricket League<\/p>\n
(ICL) wherein the competing teams constitute players of both<\/p>\n
Indian and foreign nationality at domestic and international<\/p>\n
level. It is alleged that the BCCI, by virtue of being the<\/p>\n
concerned Home-Board regulating cricket in India, publically<\/p>\n
opposed the Indian Cricket League tournament and also overtly<\/p>\n
and covertly took all possible steps to stultify its operations.<\/p>\n
The ESPL has alleged that the BCCI used its influence on<\/p>\n
various state agencies, ICC and the respective foreign Home-<\/p>\n
Boards to boycott the ESPL tournament, namely, the ICL. ESPL<\/p>\n
filed a Suit, CS(OS) No.1566\/2007 on 24.8.2007 against the<\/p>\n
BCCI, in which the Union of India and Karnataka State Cricket<\/p>\n
Association were also made parties, seeking declaratory and<\/p>\n
mandatory injunctive reliefs against the Defendants. While the<\/p>\n
Suit is progressing in this High Court, BCCI filed the subject<\/p>\n
Suit for issuance of an anti-suit injunction against ESPL alleging<\/p>\n
fao(os)107.2010 & 154.2010                              Page 3 of 67<\/span>
\n that BCCI had received a Notice dated 16.11.2009 sent by the<\/p>\n
Solicitors of ESPL in England. This Notice states that ESPL<\/p>\n
intended to file a suit against BCCI in the Court of England &<\/p>\n
Wales in the United Kingdom. Similar notices were sent to ECB<\/p>\n
and ICC who were proposed to be made the co-defendants in<\/p>\n
that Suit. In this Suit in hand, CS(OS) No.2312\/2009, BCCI has<\/p>\n
prayed for a perpetual injunction against ESPL from initiating<\/p>\n
any action against BCCI in any other judicial forum in respect of<\/p>\n
the allegations, subject matter and reliefs contained and<\/p>\n
covered in the earlier Suit, CS(OS) No.1566\/2007 pending<\/p>\n
before Delhi High Court.\n<\/p>\n
3.    An interim injunction was granted on 25.1.2010 in favour<\/p>\n
of the Plaintiff\/BCCI and Defendants No.2 and 3, namely, ECB<\/p>\n
and ICC, restraining ESPL from proceeding with its proposed<\/p>\n
claim before the U.K. Courts, till the next date of hearing. Vide<\/p>\n
impugned Order dated 4.2.2010, the learned Single Judge made<\/p>\n
the stay in favour of the BCCI permanent till the final disposal of<\/p>\n
the subject anti-suit injunction action. However, the stay qua<\/p>\n
ICC and ECB was vacated. All the adversaries, discontent with<\/p>\n
different parts of the Order of the learned Single Judge, have<\/p>\n
filed their respective Appeals. In FAO(OS) No.107\/2010, ESPL<\/p>\n
has impugned that part of the Order wherein the learned Single<\/p>\n
Judge has restrained it from proceeding against BCCI in the<\/p>\n
fao(os)107.2010 & 154.2010                               Page 4 of 67<\/span>
\n U.K. Courts. In FAO(OS) No.154\/2010, BCCI has impugned the<\/p>\n
decision of the learned Single Judge disallowing its prayer to<\/p>\n
extend the anti-suit injunction against ICC and ECB. Moreover,<\/p>\n
ICC and ECB have also filed their Cross-objections in FAO(OS)<\/p>\n
No.107\/2010 filed by ESPL praying that ESPL should be<\/p>\n
injuncted from proceeding against them in the U.K. Suit filed by<\/p>\n
ESPL. It transpires that the very action which was initially<\/p>\n
proposed to be pursued against BCCI along with ICC and ECB<\/p>\n
has now been filed by ESPL, the only change being that BCCI<\/p>\n
has been dropped from the notified array of parties pursuant to<\/p>\n
the learned Single Judge’s Order. Therefore, substantially BCCI,<\/p>\n
ICC and ECB are claiming the same relief from the Court, viz.<\/p>\n
that the action in U.K be injuncted in toto.\n<\/p>\n
4.    We shall first deal with the Appeal filed by ESPL, that is,<\/p>\n
FAO(OS) No.107\/2010. Mr. Salve, the learned Senior Counsel<\/p>\n
for ESPL, has contended that the learned Single Judge has<\/p>\n
gravely erred in holding that the two Suits, that is, the one filed<\/p>\n
in India and the other filed in United Kingdom, are similar in<\/p>\n
substance and that, therefore, the U.K. Suit is oppressive and<\/p>\n
vexatious in nature. It is also argued that such a temporary anti-<\/p>\n
suit injunction is unknown in law and tantamounts to this Court<\/p>\n
managing the Board of a foreign Court, which is repugnant to<\/p>\n
the concept of international comity amongst Courts. Mr.      Salve<\/p>\n
fao(os)107.2010 & 154.2010                               Page 5 of 67<\/span>
\n has laid great store on the fact that the action proposed in the<\/p>\n
notice of the Solicitors of ESPL in England is substantially<\/p>\n
distinct from the one already filed and under adjudication in this<\/p>\n
High Court. It is argued that in the pending Indian Suit, the<\/p>\n
actions of BCCI have territorial bearing in India; for instance,<\/p>\n
BCCI forbidding local bodies to permit the use of their stadia;<\/p>\n
banning of Indian players from playing in ICL and withdrawal of<\/p>\n
pension of former Indian players associated with ICL etc. Per<\/p>\n
contra, the U.K. Suit only takes within its sweep complaints<\/p>\n
which are contextual to actions taken or intended to be taken in<\/p>\n
the U.K. It is emphasized that the reliefs sought in England are<\/p>\n
substantially different to those in the process of adjudication in<\/p>\n
India.   Essentially,   these   claims   are   based   on   the   U.K.<\/p>\n
Competition Act and the curial advantage that the Plaintiff may<\/p>\n
have by prosecuting its case in the foreign court ought not be<\/p>\n
nullified by an anti-suit injunction. It has also been submitted<\/p>\n
that the reliefs sought in the English action are not directed<\/p>\n
only to BCCI but are also against ICC and ECB which are<\/p>\n
foreign bodies amenable to the jurisdiction of English Courts.<\/p>\n
Predicated on this argument, it is urged that the English action<\/p>\n
is a single forum case; and that Indian Courts should not grant<\/p>\n
an injunction against actions proposed to be filed or actually<\/p>\n
filed in Courts ordinarily or naturally possessing jurisdiction<\/p>\n
fao(os)107.2010 & 154.2010                                  Page 6 of 67<\/span>
\n over the dispute. With regard to this proposition, Mr. Salve has<\/p>\n
relied on ONGC -vs- Western Company of North America,<\/p>\n
(1987) 1 SCC 496, Modi Entertainment Network -vs- W.S.G.<\/p>\n
Cricket Pte. Ltd., (2003) 4 SCC 341, Moser Baer India Ltd. –<\/p>\n
vs- Koninklijke Phillips Electronics NV, 151 (2008) DLT 180,<\/p>\n
British Airways -vs- Laker Airways Ltd., [1984] 3 All ER 39,<\/p>\n
Midland Bank -vs- Laker Airways Ltd., [1984] 3 All ER 526.<\/p>\n
5.    Secondly, Mr. Salve submits that the finding of the<\/p>\n
learned Single Judge that the proposed action is oppressive and<\/p>\n
vexatious is also erroneous because, as per the Appellants, the<\/p>\n
Courts in the U.K. are the natural forum. He has sought support<\/p>\n
from SNI Aerospatiale -vs- Lee Kui Jak, [1987] 3 All ER 510 and<\/p>\n
MacShannon -vs- Rockware Glass Ltd., (1978) 1 All ER 625.<\/p>\n
Mr. Salve has also relied on the Explanation to Section 10 of the<\/p>\n
CPC to buttress his contention that even if the second action is<\/p>\n
based on the same cause of action, the rationale of Section 10 of<\/p>\n
the CPC will not bar the filing of the subsequent suit in a foreign<\/p>\n
court. To support this proposition, the Appellant has placed<\/p>\n
reliance on       Magotteaux Industries Pvt. Ltd. -vs- AIA<\/p>\n
Engineering Limited, 155(2008) DLT 73(DB). Section 10 of the<\/p>\n
CPC is reproduced below for facility of reference:-<\/p>\n
       Section 10. Stay of suit.–No Court shall proceed with
\n       the trial of any suit in which the matter in issue is also
\n       directly and substantially in issue in a previously<\/p>\n
fao(os)107.2010 & 154.2010                               Page 7 of 67<\/span>
\n        instituted suit between the same parties, or between
\n       parties under whom they or any of them claim litigating
\n       under the same title where such suit is pending in the
\n       same or any other Court in India having jurisdiction to
\n       grant the relief claimed, or in any Court beyond the
\n       limits of India established or continued by the Central
\n       Government and having like jurisdiction, or before the
\n       Supreme Court.<\/p>\n
       Explanation.–The pendency of a suit in a foreign court
\n       does not preclude the Courts in India from trying a suit
\n       founded on the same cause of action.\n<\/p><\/blockquote>\n
6.     It is also urged by Mr. Salve that the English action ought<\/p>\n
not to be injuncted as being unconscionable or vexatious and<\/p>\n
oppressive only because BCCI, being an Indian party, will be<\/p>\n
compelled to defend an action in a foreign jurisdiction. Since the<\/p>\n
dispute is between commercial entities having international<\/p>\n
presence, defending their positions in the U.K. for the actions in<\/p>\n
U.K.   jurisdiction,   cannot be said to be vexatious.       It is<\/p>\n
underscored that BCCI is the richest Board in the cricketing<\/p>\n
world and, therefore, the expenses likely to be incurred in<\/p>\n
defending the lis in the U.K. Courts cannot be viewed as<\/p>\n
oppressive.\n<\/p>\n
7.     Magotteaux Industries, no doubt, observed that the<\/p>\n
Explanation to Section 10 of the CPC provides that the<\/p>\n
pendency of a suit in foreign courts does not preclude Indian<\/p>\n
Courts from trying an action founded on the same cause of<\/p>\n
fao(os)107.2010 & 154.2010                              Page 8 of 67<\/span>
\n action. According to our learned Brothers, applying the said<\/p>\n
provision conversely, a foreign court should also not precluded<\/p>\n
from entertaining any suit based on some cause of action for<\/p>\n
which a suit is pending in an Indian Court. The dispute in that<\/p>\n
case concerned the breach of a patent by a party in different<\/p>\n
jurisdictions. An anti-suit injunction was prayed for in India<\/p>\n
against that party\/defendant restraining it from prosecuting its<\/p>\n
rights in the U.S. Courts. The Court had observed that patent<\/p>\n
rights are sovereign rights granted by a sovereign state<\/p>\n
bestowing thereby limited monopoly rights to the inventor to the<\/p>\n
exclusion of others for a set period. The ratio decidendi of<\/p>\n
Magotteaux Industries is that since the foreign suit dealt with<\/p>\n
infringement of the patent granted by the U.S. laws, the U.S.<\/p>\n
action was based on a distinct territorial cause of action, the<\/p>\n
remedy for which would lie only in that particular jurisdiction;<\/p>\n
and, therefore, Indian Courts should not grant an anti-suit<\/p>\n
injunction predicated on an alleged infraction in India of patent<\/p>\n
rights granted by Indian law. It is contended that a similar<\/p>\n
situation arises in the present case as well, inasmuch as ESPL<\/p>\n
has threatened to invoke the jurisdiction of the UK Courts<\/p>\n
invoking the UK laws.\n<\/p>\n
8.    In MacShannon, the House of Lords declined the grant of<\/p>\n
an anti-suit injunction, inter alia, on the ground that the costs of<\/p>\n
fao(os)107.2010 & 154.2010                                Page 9 of 67<\/span>
\n prosecuting the suit in Scotland would be oppressive. The Court<\/p>\n
on this account held as follows:\n<\/p>\n
        In the MacShannon and the Fyfe cases, the plaintiff’s
\n        opposition to a stay rested on allegations in his
\n        solicitor’s affidavit stating that (1) higher damages are
\n        awarded in the English than in the Scottish courts, (2)
\n        the Scottish system of pleading was inferior to the
\n        English system and might prejudice the plaintiff,
\n        increase the costs and lengthen the duration of the
\n        litigation,    (3)    party   and     party   costs   were    less
\n        generously assessed in Scotland than in England.
\n        These allegations were all denied in an affidavit sworn
\n        by the defendants’ Scottish solicitors. Neither Robert
\n        Goff J. nor the Court of Appeal attempted what they
\n        described as “the invidious and impossible task” of
\n        deciding which of the two sets of affidavits was to be
\n        preferred.\n<\/p><\/blockquote>\n
        The majority of the Court of Appeal concluded [1977] 1
\n        W.L.R. 376, 385 that in each case the plaintiff’s
\n        justification for bringing an action in England when its
\n        natural forum was Scotland, was-\n<\/p><\/blockquote>\n
        “the advice of responsible and experienced solicitors …
\n        [the judge] was right to attribute weight to the
\n        plaintiffs’ solicitors’ unproven belief that it would be to
\n        the plaintiff’s advantage to litigate in England and right
\n        to   balance     it   against   the    disadvantages    to    the
\n        defendants deposed to in the affidavits of                   their
\n        solicitors.”\n<\/p><\/blockquote>\n
        In my opinion this conclusion was wrong in law and
\n        vitiates the exercise of the judge’s discretion and the<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 10 of 67<\/span>
\n         decision of the majority of the Court of Appeal.
\n        Unproven belief cannot in law constitute a reasonable
\n        justification for bringing an action in England or make
\n        it unjust to send the plaintiff back to his own country
\n        where the action could be litigated more cheaply than
\n        in England and just as satisfactorily from everyone’s
\n        point of view. Since the judge’s discretion was based
\n        upon a wrong legal principle, that discretion and its
\n        approval by the majority of the Court of Appeal is open
\n        to review by your Lordships.\n<\/p><\/blockquote>\n
        When no justification has been shown for bringing an
\n        action in England it is, in my opinion, obviously unjust
\n        to make the defendant incur the substantial extra
\n        expense and inconvenience which he would suffer were
\n        he obliged to defend the action in England. The extra
\n        expense as shown in the defendants’ affidavits consists
\n        of a substantial extra outlay for witnesses’ travelling
\n        and accommodation expenses whether the trial takes
\n        place    in    Carlisle,    Newcastle       or   London.     The
\n        inconvenience        consists    of   the   harm    which    the
\n        defendants’      business       would   suffer     through   the
\n        disruption caused by their employees being kept away
\n        from their work substantially longer than necessary.\n<\/p><\/blockquote>\n
9.    In British Airways, an anti-suit injunction was sought<\/p>\n
against Laker Airways from prosecuting its claim in the United<\/p>\n
States under the Sherman Anti Trust Act and for \u2017intentional<\/p>\n
tort’. The plea of the British Airways was that the procedure in<\/p>\n
the US Courts under the Anti Trust Act was highly oppressive<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 11 of 67<\/span>
\n and distinct from that of British law and further that the action<\/p>\n
could as well be prosecuted in the British Courts. The Court<\/p>\n
observed that the circumstances in that case were such that<\/p>\n
even if the allegations against British Airways in the American<\/p>\n
action were to be proved, they would disclose no cause of action<\/p>\n
on the part of Laker Airways against British Airways which<\/p>\n
would be justiciable in an English Court; and that the Clayton<\/p>\n
Act which creates civil remedy with three-fold damages for<\/p>\n
criminal offences under the Sherman Act, is, under English<\/p>\n
rules of conflict of laws, purely territorial in its application.<\/p>\n
Therefore, in these circumstances, the Court found it to be the<\/p>\n
case of a \u2017single forum’ in respect of which injunctions could not<\/p>\n
have been granted by the U.K. Courts. It would be relevant to<\/p>\n
reproduce the following paragraphs from this Judgment:-<\/p>\n
        The proposition is that, even if the allegations against
\n        B.A. and B.C. in the complaint in the American action
\n        can be proved, they disclose no cause of action on the
\n        part of Laker against B.A. or B.C. that is justiciable in
\n        an English court. The Clayton Act which creates the
\n        civil remedy with threefold damages for criminal
\n        offences under the Sherman Act is, under English rules
\n        of conflict of laws, purely territorial in its application,
\n        while because the predominant purpose of acts of B.A.
\n        and B.C. that are complained of was the defence of
\n        their own business interests as providers of scheduled
\n        airline services on routes on which Laker was seeking<\/p>\n
fao(os)107.2010 & 154.2010                               Page 12 of 67<\/span>
\n         to attract customers from them by operating its
\n        Skytrain policy, any English cause of action for
\n        conspiracy would be ruled out under the now well-
\n        established principle of English (as well as Scots) law
\n        laid down in a series of cases in this House spanning 50
\n        years of which it suffices to refer only to Mogul
\n        Steamship Co. Ltd. v. McGregor, Cow & Co. [1892]
\n        A.C. 25 and Crofter Hand Woven Harris Tweed Co. Ltd.
\n        v. Veitch [1942] A.C. 435.\n<\/p><\/blockquote>\n
        In the result your Lordships are confronted in the civil
\n        actions with a case in which there is a single forum
\n        only that is of competent jurisdiction to determine the
\n        merits of the claim; and the single forum is a foreign
\n        court. For an English court to enjoin the claimant from
\n        having access to that foreign court is, in effect, to take
\n        upon itself a one-sided jurisdiction to determine the
\n        claim upon the merits against the claimant but also to
\n        prevent its being decided upon the merits in his favour.
\n        This poses a novel problem, different in kind from that
\n        involved where there are alternative fora in which a
\n        particular civil claim can be pursued: an English court
\n        and a court of some foreign country both of which are
\n        recognised under English rules of conflict of laws as
\n        having jurisdiction to entertain proceedings against a
\n        defendant for a remedy for acts or omissions which
\n        constitute an actionable wrong under the substantive
\n        law of both England and that foreign country.
\n        Cases which have these characteristics can now
\n        conveniently be labelled as forum conveniens cases. In
\n        them the High Court has jurisdiction to control how the
\n        choice of forum shall be exercised. It does so by the<\/p>\n
fao(os)107.2010 & 154.2010                              Page 13 of 67<\/span>
\n         use, as circumstances may require, either of its
\n        discretionary power to grant or refuse a stay of the
\n        action in the English court by the party who is a
\n        plaintiff there, or of its discretionary power to enjoin a
\n        party who is, or is threatening to become, a plaintiff in
\n        the foreign court from continuing or commencing
\n        proceedings in that court. Leaving aside claims that
\n        can    immediately   be   identified   as   frivolous    and
\n        vexatious, the High Court, at the stage at which it
\n        exercises this jurisdiction, is making no determination
\n        on the merits of the claim; it is deciding by which court,
\n        English or foreign, the merits of the claim ought to be
\n        tried. The principles to be applied by the High Court in
\n        making this decision in forum conveniens cases have
\n        been developed over the last 10 years in a number of
\n        decisions of this House starting with The Atlantic Star
\n        [1974] A.C. 436, continuing with MacShannon v.
\n        Rockware Glass Ltd. [1978] A.C. 795 and Castanho v.
\n        Brown & Root (U.K.) Ltd. [1981] A.C. 557, and ending
\n        with The Abidin Daver [1984] A.C. 398; but the
\n        principles    expounded   in   the   speeches   that    were
\n        delivered in all these cases start from the premise that
\n        the claim by one party against an adverse party is a
\n        claim to a right that is justiciable in England. Except
\n        for a short passage in the opinion of my noble and
\n        learned friend, Lord Scarman, in Castanho’s case
\n        [1981] A.C. 557 (with which all four other members of
\n        the Appellate Committee, including myself, agreed), I
\n        do not find the speeches in the forum conveniens cases
\n        of assistance in solving the novel problem which your<\/p>\n
fao(os)107.2010 & 154.2010                                Page 14 of 67<\/span>
\n         Lordships have to face in the civil actions that are
\n        subjects of the instant appeals.\n<\/p><\/blockquote>\n
        The answer to these appeals, in my opinion, clearly
\n        emerges from the application to the allegations that are
\n        crucial in Laker’s case against B.A. and B.C. in the
\n        American action of what since the merger of the courts
\n        of common law and Chancery has been a fundamental
\n        principle of English legal procedure. That principle,
\n        originally laid down in North London Railway Co. v.
\n        Great Northern Railway Co. (1883) 11 Q.B.D. 30, was
\n        re-stated by me (albeit in terms that I recognise were in
\n        one respect too narrow) in Siskina (Owners of cargo
\n        lately laden on board) v. Distos Compania Naviera S.A.
\n        [1979] A.C. 210, 256:\n<\/p><\/blockquote>\n
        “A right to obtain an … injunction is not a cause of
\n        action … It is dependent upon there being a pre-
\n        existing cause of action against the defendant arising
\n        out of an invasion, actual or threatened by him, of a
\n        legal   or   equitable   right   of   the   plaintiff   for    the
\n        enforcement of which the defendant is amenable to the
\n        jurisdiction of the court.”\n<\/p><\/blockquote>\n
10.   Thirdly, the impugned Judgment is challenged on the<\/p>\n
ground that it transgresses the norms of judicial comity and<\/p>\n
amounts to regulating the \u2017court diary’ of another Court. It is<\/p>\n
contended that the question whether the U.K. Court is the<\/p>\n
appropriate Court to be seised of the proposed action should be<\/p>\n
left to that Court alone to decide; and the circumstances do not<\/p>\n
warrant the writ of this Court to interfere with the jurisdiction<\/p>\n
fao(os)107.2010 & 154.2010                                      Page 15 of 67<\/span>
\n of the UK Court. It is contended that the question of forum non<\/p>\n
conveniens is a question to be decided by that forum itself<\/p>\n
which is said to be the forum non conveniens. It is not<\/p>\n
appropriate and, in turn, is violative of the principles of comity<\/p>\n
that one Court should injunct another foreign Court from<\/p>\n
hearing a matter on the ground that the other Court is forum<\/p>\n
non conveniens. Reliance is placed on Mitchell -vs- Carter,<\/p>\n
(1997) BCC 907 wherein an injunction was supplicated for<\/p>\n
against the liquidator of the defendants from proceeding against<\/p>\n
the assets of the company in the United States under the US<\/p>\n
Bankruptcy Code. The Court referred to the principle of comity<\/p>\n
and held that \u2015there must be a good reason why the decision to<\/p>\n
stop foreign proceedings should be made here rather than<\/p>\n
there. The normal assumption is that the foreign judge is the<\/p>\n
person best qualified to decide if the proceedings in his Court<\/p>\n
should be allowed to continue. Comity demands a policy of non<\/p>\n
intervention\u2016. Reference has also been made to Barclays Bank<\/p>\n
plc -vs- Homan, [1992] BCC 757 where the Court observed that<\/p>\n
\u2015today the normal assumption is that an English Court has no<\/p>\n
superiority over foreign court in deciding what justice between<\/p>\n
the parties requires and in particular, that both comity and<\/p>\n
commonsense suggest that the foreign judge is usually the best<\/p>\n
person to decide whether in his own court he should accept or<\/p>\n
fao(os)107.2010 & 154.2010                             Page 16 of 67<\/span>
\n decline    jurisdiction,     stay    proceedings       or    allow    them     to<\/p>\n
continue\u2016. A reference has also been made to the view of the<\/p>\n
learned Single Judge of this Court in Moser Baer India Ltd.<\/p>\n
wherein a distinction was made between an anti-suit injunction<\/p>\n
and the doctrine of forum non conveniens in these succinct<\/p>\n
words:-\n<\/p>\n
          7. The concepts of anti-suit injunction and forum non
\n          conveniens require some examination. An anti-suit
\n          injunction is granted by a Court preventing the parties
\n          before   it   from        instituting   or    continuing        with
\n          proceedings in another Court. On the other hand, the
\n          doctrine of forum non conveniens is invoked by a Court
\n          to not entertain a matter presented before it in view of
\n          the fact that there exists a more appropriate Court of
\n          competent jurisdiction which would be in a better
\n          position to decide the lis between the parties. So, in a
\n          sense the principle on which an anti-suit injunction is
\n          invoked is just the reverse of the principle on which the
\n          doctrine of forum non conveniens is employed.\n<\/p><\/blockquote>\n
11.   We are, however, completely confined and bound by the<\/p>\n
opinion     articulated      by     the    Supreme          Court    in   Modi<\/p>\n
Entertainment Network. Parties to the dispute had consented<\/p>\n
that their \u2015agreement shall be governed by and construed in<\/p>\n
accordance with English law and the parties hereby submit to<\/p>\n
the non-exclusive jurisdiction of the English courts (without<\/p>\n
reference to English conflict of law Rules)\u2016. Their Lordships did<\/p>\n
fao(os)107.2010 & 154.2010                                           Page 17 of 67<\/span>
\n not find any valid reason to grant an anti-suit injunction in<\/p>\n
disregard of this jurisdictional clause; it declined to restrain the<\/p>\n
Respondent from prosecuting the case in the chosen forum, that<\/p>\n
is, the English Courts. The Judgment perspicuously discusses<\/p>\n
several decisions spanning the globe, namely:-<\/p>\n
   1. Donohue -vs- Armco Inc, (2002) 1 All ER 749 (HL)\n<\/p>\n
   2. SABAH Shipyard (Pakistan) Ltd. -vs- Islamic Republic of
\n      Pakistan and Karachi Electrics Supply Corpn. Ltd. (2002),
\n      2002 EWCA Civ 1643 (CA)\n<\/p>\n
   3. Airbus Industrie GIE -vs- Patel, (1998) 2 All ER 257 :
\n      (1999) 1 AC 119 : (1998) 1 WLR 686 (HL)\n<\/p>\n
   4. C.S.R. Ltd. -vs- Cigna Insurance Australia Ltd., (1997) 189
\n      CLR 345 : (1997) 146 ALR 402 (Aust HC)\n<\/p>\n
   5. Amchem Products Inc -vs- Workers’ Compensation Board,
\n      (1993) 102 DLR (4th) 96 (Can SC)\n<\/p>\n
   6. British Aerospace Plc -vs- Dee Howard Co., (1993) 1
\n      Lloyd’s Rep 368\n<\/p>\n
   7. British     India      Steam   Navigation   Co.   Ltd.     -vs-
\n      Shanmughavilas Cashew Industries(1990) 3 SCC 481\n<\/p>\n
   8. SNI Aerospatiale -vs- Lee Kui Jak, (1987) 3 All ER 510 :
\n      1987 AC 871 : (1987) 3 WLR 59 (PC)\n<\/p>\n
  9. Oil and Natural Gas Commission -vs- Western Co. of
\n      North America, (1987) 1 SCC 496\n<\/p>\n
   10. Spiliada Maritime Corpn. -vs- Cansulex Ltd., (1986) 3 All
\n       ER 843 : 1987 AC 460 : (1986) 3 WLR 972 (HL)\n<\/p>\n
  11. Castanho -vs- Brown & Root (U.K.) Ltd., 1981 AC 557 :\n<\/p>\n
      (1981) 1 All ER 143 : (1980) 3 WLR 991 (HL)\n<\/p>\n
   12. MacShannon -vs- Rockware Glass Ltd., (1978) 1 All ER
\n       625 : 1978 AC 795 : (1978) 2 WLR 362 (HL)<\/p>\n
fao(os)107.2010 & 154.2010                               Page 18 of 67<\/span>\n<\/p>\n
    13. Carron Iron Co. -vs- Maclaren, (1855) 5 HLC 416 : 24 LJ
\n       Ch 620 : 3 WR 597 (HL).\n<\/p>\n
We have mentioned these precedents for the reason that we<\/p>\n
think it entirely futile to analyse them as this exercise has<\/p>\n
already been completed in Modi Entertainment Network. The<\/p>\n
Supreme Court had delineated the parameters within which the<\/p>\n
grant of an anti-suit injunction would be justified, and we fall<\/p>\n
entirely within these frontiers. Even with regard to the decisions<\/p>\n
that have been delivered after Modi Entertainment Network,<\/p>\n
it is not possible for us to charter a course that is not in<\/p>\n
consonance with the principles culled out by their Lordships.<\/p>\n
For facility of reference paragraph 24 of Modi Entertainment<\/p>\n
Network is reproduced:-\n<\/p>\n
   24. From the above discussion the following principles
\n   emerge:\n<\/p>\n
   (1) In exercising discretion to grant an anti-suit injunction
\n   the court must be satisfied of the following aspects:<\/p>\n
      (a) the defendant, against whom injunction is sought, is
\n   amenable to the personal jurisdiction of the court;\n<\/p>\n
      (b) if the injunction is declined, the ends of justice will be
\n   defeated and injustice will be perpetuated; and\n<\/p>\n
      (c) the principle of comity — respect for the court in
\n   which      the      commencement       or    continuance        of
\n   action\/proceeding is sought to be restrained — must be
\n   borne in mind.\n<\/p>\n
fao(os)107.2010 & 154.2010                                 Page 19 of 67<\/span>
\n    (2) In a case where more forums than one are available, the
\n   court in exercise of its discretion to grant anti-suit
\n   injunction will examine as to which is the appropriate forum
\n   (forum conveniens) having regard to the convenience of the
\n   parties and may grant anti-suit injunction in regard to
\n   proceedings which are oppressive or vexatious or in a
\n   forum non-conveniens.\n<\/p>\n
   (3) Where jurisdiction of a court is invoked on the basis of
\n   jurisdiction clause in a contract, the recitals therein in
\n   regard to exclusive or non-exclusive jurisdiction of the court
\n   of choice of the parties are not determinative but are
\n   relevant factors and when a question arises as to the nature
\n   of jurisdiction agreed to between the parties the court has
\n   to decide the same on a true interpretation of the contract
\n   on the facts and in the circumstances of each case.
\n   (4) A court of natural jurisdiction will not normally grant
\n   anti-suit injunction against a defendant before it where
\n   parties have agreed to submit to the exclusive jurisdiction
\n   of a court including a foreign court, a forum of their choice
\n   in   regard      to   the     commencement         or     continuance      of
\n   proceedings in the court of choice, save in an exceptional
\n   case for good and sufficient reasons, with a view to prevent
\n   injustice   in     circumstances       such    as       which    permit    a
\n   contracting party to be relieved of the burden of the
\n   contract;     or      since     the   date    of    the    contract       the
\n   circumstances         or      subsequent     events       have   made      it
\n   impossible for the party seeking injunction to prosecute the
\n   case in the court of choice because the essence of the
\n   jurisdiction of the court does not exist or because of a vis
\n   major or force majeure and the like.\n<\/p>\n
fao(os)107.2010 & 154.2010                                           Page 20 of 67<\/span>
\n    (5) Where parties have agreed, under a non-exclusive
\n   jurisdiction clause, to approach a neutral foreign forum and
\n   be governed by the law applicable to it for the resolution of
\n   their disputes arising under the contract, ordinarily no anti-
\n   suit injunction will be granted in regard to proceedings in
\n   such a forum conveniens and favoured forum as it shall be
\n   presumed      that    the   parties     have    thought      over    their
\n   convenience      and      all   other    relevant     factors       before
\n   submitting to the non-exclusive jurisdiction of the court of
\n   their choice which cannot be treated just as an alternative
\n   forum.\n<\/p>\n
   (6) A party to the contract containing jurisdiction clause
\n   cannot normally be prevented from approaching the court
\n   of choice of the parties as it would amount to aiding breach
\n   of the contract; yet when one of the parties to the
\n   jurisdiction clause approaches the court of choice in which
\n   exclusive or non-exclusive jurisdiction is created, the
\n   proceedings in that court cannot per se be treated as
\n   vexatious or oppressive nor can the court be said to be
\n   forum non-conveniens.\n<\/p>\n
   (7) The burden of establishing that the forum of choice is a
\n   forum non-conveniens or the proceedings therein are
\n   oppressive     or    vexatious    would    be    on    the    party     so
\n   contending to aver and prove the same.\n<\/p>\n
12.   We shall now anlayse the contentions of the rival parties.<\/p>\n
The first question is whether the cause of action in both the<\/p>\n
Suits is common. The Indian Suit, CS(OS) No.1566\/2007 filed on<\/p>\n
24.8.2007, is a Suit for Declaration, Permanent and Mandatory<\/p>\n
Injunction. ESPL has filed this Suit against the Union of India,<\/p>\n
fao(os)107.2010 & 154.2010                                         Page 21 of 67<\/span>
\n Karnataka State Cricket Association and BCCI which is arrayed<\/p>\n
as Defendant No.5. The Suit alleges that BCCI, which is a<\/p>\n
private organization affiliated to ICC, has not only publically<\/p>\n
opposed ICL but has overtly and covertly taken all possible<\/p>\n
steps to stultify its operations. It is also alleged that a de facto<\/p>\n
monopoly in the field of cricket is sought to be created in India<\/p>\n
by BCCI which is now acting arbitrarily in its own functioning as<\/p>\n
well as in the administration of the game.\n<\/p>\n
13.   The portions of the Plaint containing the allegations<\/p>\n
against the State entities and the BCCI are reproduced below<\/p>\n
for facility of reference and comparison:-\n<\/p>\n
        27.    In response to the Plaintiff’s communication dated
\n        03.04.2007 sent to the defendant No.5-BCCI the BCCI
\n        responded by its communication dated 21.06.2007
\n        addressed to all the Presidents and Hony Secretaries of
\n        all the affiliated units of defendant No.5 and was also
\n        sent    to   a       number     of   players-intimidating     and
\n        threatening them with serious consequences in the
\n        event any of their affiliated units permitting any of its
\n        stadiums      and\/or      cricket    players   with   them      in
\n        participating        in   the   tournaments\/matches      to    be
\n        organized by the ICL.           The Plaintiff states that the
\n        reference to private tournaments in the communication
\n        is obviously a reference to the ICL as there is no other
\n        known        tournament          being      organized.        This
\n        communication is clearly an effort to intimidate, both,
\n        players wishing to play for ICL, as well as ICL itself, as<\/p>\n
fao(os)107.2010 & 154.2010                                    Page 22 of 67<\/span>
\n         well as a conspiracy that the defendant no.5 is
\n        formulating with its state affiliate units to cause
\n        wrongful loss, harm and damage to the plaintiff, in the
\n        light of the fact that the players have earlier been
\n        allowed     to   play    in     matches   organized    by   event
\n        management companies (such as                  matches played
\n        between movie stars and cricket players), as well as
\n        matches organized by the ICC, which is also a private
\n        organization.        In any event, the Plaintiff states that
\n        even though Defendant no.5 is a private body, it cannot
\n        discriminate against players on arbitrary grounds. The
\n        threat to disallow a player to participate in their
\n        tournament solely on the ground that he has also
\n        played in a tournament organized by the Plaintiff is
\n        clearly arbitrary.\n<\/p><\/blockquote>\n
        ……\n<\/p><\/blockquote>\n
        29. Defendant no.5 has also threatened stalwarts such
\n        as Kapil Dev that in the event they provide their
\n        expertise for the objectives to be achieved by ICL in
\n        any manner, the welfare schemes launched by the
\n        defendant no.5 including pension scheme and benefit
\n        matches shall not be made available to them and all
\n        those benefits shall stand withdrawn.
\n        ……\n<\/p><\/blockquote>\n
        31. The plaintiff states that the BCCI has directly and
\n        through its affiliate units etc. has started intimidating,
\n        threatening players that if they play in ICL, the players
\n        will not be able to be selected for \u2017Team India’
\n        irrespective     of     their    performance.    The     plaintiff
\n        respectfully         submits     that     defendant    no.5     is
\n        systematically, with a malafide intention threatening<\/p>\n
fao(os)107.2010 & 154.2010                                      Page 23 of 67<\/span>
\n         the players and state associations. Defendant no.5- has
\n        threatened to disqualify players participating in ICL
\n        tournaments from being eligible to be selected for
\n        \u2015Team India\u2016.           This threat is clearly designed to
\n        prevent      young     players     from        participating    in   ICL
\n        tournaments, hence damaging their scope of growth as
\n        players.     This is also clearly a means of conspiring
\n        against and intimidating the plaintiff from succeeding
\n        in the formation of ICL, hence causing loss to the
\n        plaintiff.\n<\/p><\/blockquote>\n
        ……\n<\/p><\/blockquote>\n
        34-C Defendant No.5-BCCI seeks to rely upon its
\n        purported Memorandum, Rules & Regulations, Players’
\n        Registration     Form        and     the       regulations     annexed
\n        therewith by contending that it has the power\/authority
\n        to prevent cricketers, past and present, from playing
\n        any match other than those organized by or under the
\n        auspices of the BCCI. Defendant no.5-BCCI also seeks
\n        to justify its conduct on the basis of the said
\n        Memorandum,            Rules      and      Regulations,        Players’
\n        Registration     Form       and      the       Regulations     annexed
\n        therewith.\n<\/p><\/blockquote>\n
        34-D The plaintiff states that during the proceedings in
\n        the   present        suit   before      this    Hon’ble      Court    on
\n        27.8.2007, on behalf of defendant no.5 BCCI-had
\n        placed reliance upon its purported \u2015Memorandum and
\n        Rules & Regulations\u2016 seeking to contend that it has the
\n        power\/authority under its Memorandum to, inter alia,
\n        control the game of cricket in India, select the Indian
\n        Team, makes rules for the game of cricket in India etc.<\/p>\n
fao(os)107.2010 & 154.2010                                             Page 24 of 67<\/span>
\n         The relevant clauses of the Memorandum of the
\n        defendant no.5- BCCI are as under:-\n<\/p><\/blockquote>\n
                             Memorandum
\n        \u2015…2(a) To control the game of cricket in India and
\n        give its decision on all matters including Womens
\n        cricket which may be referred to it by any Member
\n        Associations in India…\n<\/p><\/blockquote>\n
        …..\n<\/p><\/blockquote>\n
        …2(g) To frame the laws of cricket in India and to
\n        make alteration, amendment or addition to the laws of
\n        Cricket in India whenever desirable or necessary.
\n        …..\n<\/p><\/blockquote>\n
        …2(s) To select teams to represent India in test
\n        matches. One day International and Twenty\/20 matches
\n        played in India or abroad, and to select such other
\n        teams as the Board may decide from time to time.
\n        ……\n<\/p><\/blockquote>\n
        …2(u) To appoint the Manager and\/or other official of
\n        Indian Teams.\n<\/p><\/blockquote>\n
        2(v) To      appoint        India’s      representative        or
\n        representatives        on      the     International    Cricket
\n        Conference       and        other     Conferences,     Seminars
\n        connected with the game of cricket..\u2016
\n        …..\n<\/p><\/blockquote>\n
        34-F The defendant no.5-BCCI has also prescribed form
\n        for registration of the players for playing matches for
\n        Ranji Trophy etc. thereby incorporating therein an
\n        undertaking on behalf of each of the player that he
\n        shall not play, either in India or abroad in any other
\n        match or tournament which is not registered with, not
\n        approved by the affiliate Association or BCCI or ICC<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 25 of 67<\/span>
\n         without the prior written permission of the BCCI. The
\n        relevant clause of the Players Registration Form of the
\n        BCCI is reproduced as under:-\n<\/p><\/blockquote>\n
        \u2015..2 I shall not play or participate in any cricket match
\n        or tournament Organized as charity\/festival\/benefit
\n        match or tournament not registered with or not
\n        approved by the Association or BCCI or ICC or any of
\n        its affiliated members without the written permission of
\n        the BCCI either in India or abroad.\u2016
\n        34-G There are certain Regulations which are annexed
\n        with Players’ Registration Form of the defendant no.5-
\n        BCCI, which also include similar clauses seeking to
\n        prohibit    players    from      playing   any    other   match
\n        organized by any other organization\/agency.                 The
\n        relevant clauses of the said Regulations of the BCCI
\n        annexed      with     Players’     Registration     Form    are
\n        reproduced as under:\n<\/p><\/blockquote>\n
        \u2015..9. No registered player can play or participate in a
\n        Cricket match or Tournament not recognized by the
\n        Association or Board or the ICC or any of its affiliated
\n        members without the written permission of the Board
\n        either in India or abroad.\n<\/p><\/blockquote>\n
        10. No registered player can play or participate in a
\n        Cricket match or Tournament organized as Festival\/
\n        Charity\/Benefit match or Tournament not registered
\n        with or approved by the Association or Board or ICC or
\n        any of its affiliated members without the written
\n        permission of the Board either in India or abroad.\n<\/p><\/blockquote>\n
             If any of the registered players participate in any
\n        of the Tournaments or matches not permitted by the
\n        BCCI or ICC and its affiliated members he will be liable<\/p>\n
fao(os)107.2010 & 154.2010                                    Page 26 of 67<\/span>
\n         for deregistration and will be registered only after a
\n        gap of one year which period the Board may waive at
\n        its discretion.\u2016
\n        34-H Without prejudice to the aforesaid contention of
\n        the Plaintiff that the amendments carried out by the
\n        defendant       no.5-BCCI     from       time   to    time     in    its
\n        Memorandum & Rules and Regulations have not been
\n        placed before the Registrar of Societies, Tamil Nadu,
\n        for approval and the same being non-est and void- the
\n        plaintiff submits the Memorandum, the Rules and
\n        Regulations,       Players    Registration      Form     and        the
\n        regulations annexed therewith of the BCCI- seeking to
\n        prevent the cricketers from participating in other
\n        tournaments without in any manner affecting the
\n        tournaments of the matches organized by BCCI, are
\n        clearly    in    unlawful      restraint\/restraint      of      trade.
\n        Further,     the     Memorandum          and    the    Rules        and
\n        Regulations etc. in so far as they seek to authorize the
\n        BCCI to represent its team as the Indian Team-are
\n        neither valid nor legal and are non-est and void. It is
\n        an admitted position that BCCI is a private organization
\n        as recognized by the Hon’ble Supreme Court in the
\n        case of Zee Telefilms Ltd v Union of India, (2005) 4
\n        SCC 649, it is not having any jurisdiction or authority
\n        to take any action or decision with reference to Indian
\n        team and\/or Cricket players for playing for the country.
\n        34(I) The plaintiff further states that the defendant
\n        no.5-BCCI by virtue of its existing position, through the
\n        Memorandum,           Rules        &     Regulations,        Players’
\n        Registration       Form      and   the    regulations        annexed
\n        therewith, purports to create a monopoly in favour of a<\/p>\n
fao(os)107.2010 & 154.2010                                           Page 27 of 67<\/span>
\n         private body in the game of cricket. The avowed stand
\n        of the defendant no.5 before the Hon’ble Supreme
\n        Court was that there is no bar on any other person
\n        from organizing matches or otherwise participating in
\n        the    game       of   cricket.   The   plaintiff   states   that
\n        nonetheless in an abuse of its monopolistic position by
\n        having first mover advantage and having existing
\n        affiliations, defendant no.5 seeks to, in an unlawful and
\n        impermissible manner, restrict and control the game of
\n        cricket in a way that it continues to exercise sole and
\n        exclusive monopoly.\n<\/p><\/blockquote>\n
        ….\n<\/p><\/blockquote>\n
        37-A The plaintiff submits that defendant no.5-BCCI
\n        has   affiliate      members\/associations.     These    member
\n        associations have set up stadia for playing the game of
\n        cricket. The lands for these stadia have been allotted
\n        to the said associations by the State Governments\/other
\n        authorities       under    State\/Central     Governments       at
\n        concessional\/token charges.         It is submitted that the
\n        said lands have been allotted for promoting the game of
\n        cricket. In view thereof, the plaintiff is also entitled to
\n        the use of the stadia alongwith defendant no.5 and its
\n        affiliated associations for organizing cricket matches.
\n        The refusal of the use of the stadia by the affiliate state
\n        associations is malafide and is at the behest and under
\n        intimidation and threat of the defendant no.5. Hence,
\n        the plaintiff submits that such conduct on the part of
\n        the defendant no.5 is in restraint of trade\/unlawful
\n        restraint and against public policy.\n<\/p><\/blockquote>\n
              The fact that defendant no.5 is using duress and
\n        coercion on all its members is evident, inter alia, from<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 28 of 67<\/span>
\n         communication dated 29.8.2007 issued by the Cricket
\n        Club of India         Ltd.,    Mumbai,      which has become
\n        available to the plaintiff. The said communication
\n        quotes minutes of the meeting of the BCCI dated
\n        28.8.2007 wherein action is taken against Mr Raj Singh
\n        Dungarpur, for issuing a press statement that the
\n        Brabourne Stadium would be available for the matches
\n        of the Plaintiff. This conduct of the BCCI clearly
\n        establishes     it    is     threatening\/intimidating      all   its
\n        members and affiliate associations and office bearers
\n        and with action if they deal with the plaintiff-Indian
\n        Cricket League.\n<\/p><\/blockquote>\n
              Also,   by     way      of   its   communication       dated\n        10.09.2007      the        Tamil   Nadu     Cricket     Association\n<\/pre>\n
        cancelled the registrations of some players on the
\n        ground that they opted to play for the Plaintiff League.
\n        …..\n<\/p><\/blockquote>\n
        38. The plaintiff states that by its threats and acts of
\n        intimidation       the     defendant      no.5    has   committed
\n        malfeasance with defendants no.1 to 4, have committed
\n        non feasance by their lack of action against defendant
\n        no.5. It is the obligation of defendants no.1,2 and 3 to
\n        prevent the misrepresentation of defendant no.5 that it
\n        alone has the power to choose the Indian cricket team,
\n        while it is the obligation of defendants no.1,2 and 3 to
\n        ensure that the grounds given by them to the affiliate
\n        units   of defendant no.5           at    token    value for the
\n        promotion of sports such as cricket, are used for this
\n        purpose only and further are made available to anyone
\n        promoting such purpose.             These grounds have often
\n        been used for other purposes, such as for beauty<\/p>\n
fao(os)107.2010 & 154.2010                                        Page 29 of 67<\/span>
\n         pageants, political rallies etc. but when ICL was
\n        desirous of using the Chinnaswamy Stadium, being a
\n        stadium on one such ground, to organize a cricket
\n        tournament, the user of the ground was denied to it by
\n        defendant no.4 and none of the defendants no.1,2 and 3
\n        fulfilled their obligations in this regard of ensuring the
\n        user of the said ground for the promotion of cricket in
\n        these circumstances the defendant no.5 is guilty of
\n        various acts such as intimidation, malafide actions,
\n        malfeasance, conspiracy, public nuisance and all such
\n        acts give rights to the plaintiff and constitute a valid
\n        cause of action for filing the present suit against the
\n        defendant’s herein.        The plaintiff submits that if the
\n        defendant no.5 is guilty of the aforesaid acts the
\n        defendants     no.1   to    4   are   also   guilty   and   have
\n        committed an act of non-feasance and by allowing the
\n        defendant no.5 to continue with its public nuisance.
\n        The plaintiff therefore submits that due to the said acts
\n        committed by the defendants the plaintiff is entitled for
\n        relief as prayed.\n<\/p><\/blockquote>\n
        39. It is submitted that an independent and individual
\n        right of any one cannot be curtailed or restricted by
\n        any private body.     Even the State cannot impose any
\n        restrictions save and except under Article 19(2) of the
\n        Constitution of India. Defendant no.5-BCCI never had
\n        nor has been provided with any power or authority to
\n        impose any restriction on any one from promoting the
\n        Sports and\/or from participating therein.             Rights are
\n        independent rights. No player can be so restricted or
\n        be put under threat by BCCI. The threatened acts and
\n        conduct on the part of defendant no.5-BCCI clearly<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 30 of 67<\/span>
\n         amounts to putting undue and illegitimate \u2015threat\u2016 and
\n        \u2015pressure\u2016.     The     threat   and     intimidation    by   the
\n        defendant no.5 through restrictions sought to be
\n        imposed upon the Players as well as Associations are
\n        unfair, unjust, unreasonable, impermissible and illegal.\n<\/p><\/blockquote>\n
14.   It is necessary underscore that neither the ICC nor the<\/p>\n
ECB are parties in the previously instituted lis which is<\/p>\n
presently pending in the Original Side of this Court, a feature<\/p>\n
that has been repeatedly emphasised by Mr. Salve. The reliefs<\/p>\n
which are claimed in the said Suit, CS(OS) No.1566\/2007 by<\/p>\n
ESPL are as follows:-\n<\/p>\n
         (i)    Pass    a     Decree     of    Permanent    injunction
\n                restraining\/prohibiting        Defendant    no.5       its
\n                assigns,     office   bearers,   employees,     agents,
\n                successors or any other entity acting in the
\n                name and\/or on its behalf from using the name
\n                and National Flag of India or representing to
\n                the    public at large that the team of the
\n                defendant no. 5 represents India;\n<\/p><\/blockquote>\n
         (ii)   Pass a Decree of Mandatory Injunction against
\n                Defendants 1 to take all necessary steps in
\n                accordance with law in ensuring that Defendant
\n                no.5 its assigns, office bearers, employees,
\n                agents, successors or any other entity acting in
\n                the name and \/ or on its behalf do not use the
\n                name and National Flag of India or represent to
\n                the public at large that the            team of the
\n                defendant no.5 represents India;\n<\/p><\/blockquote>\n
fao(os)107.2010 & 154.2010                                      Page 31 of 67<\/span><\/p>\n
          (iii)   Pass    a    Decree     of      Permanent     Injunction
\n                 restraining\/     prohibiting     defendant     no.5,   its
\n                 assigns,     office   bearers     employees,     agents,
\n                 successors or any other entity acting in the
\n                 name and\/or on its behalf from intimidating,
\n                 threatening      in     any     manner       whatsoever,
\n                 inducing or inciting or in any other manner
\n                 interfering with the attempts of the Plaintiff to
\n                 sign up contracts with players-past and present\n<\/p><\/blockquote>\n
                 – for participating in its tournaments and from
\n                 interfering in any manner with the conduct of
\n                 the activities of the plaintiff’s Indian Cricket
\n                 League;\n<\/p><\/blockquote>\n
         (iv)    Pass    a    Decree     of      Permanent     Injunction
\n                 restraining\/ prohibiting the defendant no. 5 its
\n                 assigns,     office   bearers,    employees,     agents,
\n                 successors or any other entity acting in the
\n                 name and\/or on its behalf from issuing any
\n                 threat inducement or any other statement
\n                 whatsoever, publicly or privately, that interferes
\n                 with the free will of any of its affiliate state
\n                 units or the players who are members or
\n                 associates of those affiliate units from in any
\n                 manner       entering    into    contracts    with     the
\n                 Plaintiff;\n<\/p><\/blockquote>\n
         (v)     Pass    a    Decree     of      Permanent     Injunction
\n                 restraining\/ prohibiting the defendant no.5 its
\n                 assigns,     office   bearers,    employees,     agents,
\n                 successors or any other entity acting in the
\n                 name and \/ or on its behalf from, in any manner,
\n                 directly or indirectly, inducing or in any manner<\/p>\n
fao(os)107.2010 & 154.2010                                       Page 32 of 67<\/span>
\n                  being instrumental in its affiliate state units
\n                 declining the user of the cricket grounds
\n                 allotted to them by the defendant no. 2&3 or
\n                 any other state authorities or other authorities
\n                 for organizing the cricket matches therein by
\n                 the ICL;\n<\/p><\/blockquote>\n
         (vi)    Pass a Decree of Mandatory Injunction against
\n                 Defendants 1-3 directing them to ensure that
\n                 the State affiliates of Defendant no. 5 who are
\n                 having Cricket stadiums on the lands allotted by
\n                 the Government – to make available those
\n                 Stadia to the plaintiff for ICL matches on such
\n                 terms and conditions which this Hon’ble Court
\n                 may deem fit and appropriate to be prescribed
\n                 for that purpose;\n<\/p><\/blockquote>\n
         (vii)   Pass   a    Decree     of   Permanent    Injunction
\n                 restraining\/ prohibiting the defendant no. 5 its
\n                 assigns,    office   bearers,   employees,   agents,
\n                 successors or any other entity acting in the
\n                 name and\/or on its behalf from withdrawing the
\n                 benefits in any manner whatsoever which it has
\n                 been extending or is proposing to extend to its
\n                 past cricket players including the pension and
\n                 benefit match scheme on account of the fact
\n                 that they have participated in the matches
\n                 organized by the ICL;\n<\/p><\/blockquote>\n
         (viii) Pass a Decree in favour of the Plaintiff and
\n                 against the defendants declaring that clauses
\n                 2(a), 2(g), 2(s), 2(u), 2(v) of the Memorandum of
\n                 the BCCI and clauses 1(d), 9(c), 9(d),9(g),<\/p>\n
fao(os)107.2010 & 154.2010                                    Page 33 of 67<\/span>
\n                   13(v)(b), 13(v)(c) and 13(v)(f) of the Rules and
\n                  Regulations are illegal, non-est and void.\n<\/p><\/blockquote>\n
         (ix)     Pass a decree in favour of the Plaintiff and
\n                  against the defendants declaring that Rules 33-
\n                  d, 33-e and 34 of the Rules and Regulations of
\n                  the BCCI are illegal, non-est and void;\n<\/p><\/blockquote>\n
         (x)      Pass a decree in favour of the Plaintiff and
\n                  against the defendants declaring that Clause 2
\n                  of the Form of Players’ Registration – Ranji
\n                  Trophy and also Regulations 9 and 10 of the
\n                  Regulations annexed therewith as illegal, non-
\n                  est and void;<\/p><\/blockquote>\n
\n         (xi)     Any other further orders as this Hon'ble Court\n                  deems      fit   and   proper   in   the   facts   and\n                  circumstances of the present case;\n         (xii)    Costs be awarded\n\n<\/pre>\n
15.   We shall now compare the asseverations in the proposed<\/p>\n
action sent along with the Notice issued initially by the<\/p>\n
Solicitors of the Appellant, and the U.K. action now pending in<\/p>\n
the High Court of Justice, Chancery Division after the grant of<\/p>\n
anti-suit injunction by the learned Single Judge in favour of<\/p>\n
BCCI. The averments qua the BCCI in the draft accompanying<\/p>\n
Notice were as follows:-\n<\/p><\/blockquote>\n
                 3.   The Second to [ ] Claimants (\u2015the Players\u2016)
\n                 are professional cricketers who wish to negotiate
\n                 contracts to play for teams participating in the
\n                 ICL. The Players are listed in Schedule A to these<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 34 of 67<\/span>
\n               Particulars of Claim together with brief details of
\n              their playing careers to date.\n<\/p><\/blockquote>\n
              …..\n<\/p><\/blockquote>\n
              5.    The Board of Control for Cricket in India
\n              (\u2015the BCCI\u2016) is a not for profit society registered
\n              in accordance with the Tamil Nadu Societies
\n              Registration Act under the laws of India. The
\n              membership of the BCCI comprises State cricket
\n              associations and various cricket clubs across
\n              India. It organizes international matches for the
\n              Indian cricket team and a number of domestic
\n              cricket competitions in India, for which it exploits
\n              the broadcasting rights.\n<\/p><\/blockquote>\n
              6.    In particular, the BCCI promotes a Twenty20
\n              cricket competition known as the Indian Premier
\n              League (\u2015the IPL\u2016). The first season of the IPL
\n              was launched in April 2008, the second season
\n              took place in South Africa in 2009 and the third is
\n              due to commence in India in March 2010. The
\n              worldwide broadcasting rights to the IPL were
\n              sold in February 2008 for ten years for a reported
\n              US$ 1.026 billion to a consortium of the Sony
\n              Television     network    and      the   Singapore-based
\n              World Sports Group (which outbid the ESPN-Star
\n              Sports     network,      jointly    owned     by    News
\n              Corporation and Disney).\n<\/p><\/blockquote>\n
              …..\n<\/p><\/blockquote>\n
              36.   From its inception, ICL has received a hostile
\n              reaction from the BCCI. Early approaches in
\n              correspondence in which ICL aimed to achieve co-\n<\/p><\/blockquote>\n
fao(os)107.2010 & 154.2010                                    Page 35 of 67<\/span><\/p>\n
               operation between ICL and BCCI were rebuffed by
\n              BCCI.\n<\/p><\/blockquote>\n
              37.    On 21 August 2007, a resolution was adopted
\n              unanimously at a Special General Meeting of the
\n              BCCI, resolving that: \u2015Every individual has a right
\n              to choose whether he wishes to associate himself
\n              with any other organization. However, if he
\n              chooses to associate himself with any other
\n              organization, he will not be entitled to derive any
\n              benefit from BCCI or be associated with any
\n              activities of the Board or its affiliated units\u2016.\n<\/p><\/blockquote>\n
              38.    BCCI has since engaged in a range of
\n              activities clearly calculated to deter and prevent
\n              prospective players (and others) from involving
\n              themselves with ICL, and intended to obstruct the
\n              activities of the ICL.\n<\/p><\/blockquote>\n
                                 PARTICULARS<\/p>\n
               (1)    Barring players associated with ICL from
\n                      eligibility for the Indian national team.\n<\/p><\/blockquote>\n
               (2)    BCCI sacked Kapil Dev as head of the
\n                      Indian National Cricket Academy because
\n                      of his involvement with ICL. Other players
\n                      have been barred from involvement in BCCI
\n                      events by reason of their association with
\n                      ICL.\n<\/p><\/blockquote>\n
               (3)    Interfering with existing and prospective
\n                      contracts between players and the ICL
\n                      through threats and intimidation.
\n               (4)    Instructing all local affiliates not to allow
\n                      cricket grounds to be used for ICL games or<\/p>\n
fao(os)107.2010 & 154.2010                                  Page 36 of 67<\/span>
\n                       otherwise to involve themselves or permit
\n                      individuals to involve themselves with ICL,
\n                      on penalty of exclusion from all BCCI
\n                      activities and pensions.\n<\/p><\/blockquote>\n
               (5)    Preventing the use of state-owned stadia for
\n                      use as ICL match venues through BCCI’s
\n                      monopolistic management of such venues
\n                      (or through its control of the local BCCI
\n                      affiliates which manage the use of those
\n                      stadia).\n<\/p><\/blockquote>\n
               (6)    Amending the terms of the BCCI pension
\n                      fund to discriminate against players who
\n                      involve themselves with ICL.\n<\/p><\/blockquote>\n
               (7)    Putting pressure on potential advertisers
\n                      not to advertise on ICL by threatening to
\n                      withhold   opportunities      for   sponsorship
\n                      activity with the BCCI.\n<\/p><\/blockquote>\n
               (8)    Putting pressure on other country boards to
\n                      ban their players from playing in the ICL
\n                      and to bar them from playing for their
\n                      country where they played in ICL (examples
\n                      of such international bans include Shane
\n                      Bond of New Zealand and Justin Kemp of
\n                      South Africa).\n<\/p><\/blockquote>\n
               (9)    In 2008, the BCCI announced the intention
\n                      (in conjunction with Cricket South Africa
\n                      and    Cricket   Australia)    to   launch    an
\n                      international    club   Twenty20    Champions
\n                      League. Clause 2.4.6 of the invitation to
\n                      tender for commercial rights in respect of
\n                      the competition stated that involvement<\/p>\n
fao(os)107.2010 & 154.2010                                   Page 37 of 67<\/span>
\n                       directly or indirectly with ICL would result
\n                      in automatic disqualification of any bidder.
\n               (10) The BCCI imposed a similar clause to that
\n                      referred to in 38(9) above in the IPL
\n                      broadcast rights tender document (see \u00a76
\n                      above), thereby excluding the companies
\n                      operating   the    Zee   branded     television
\n                      channels    from   bidding   as      they   are
\n                      associated with ESPL (see \u00a715 above).
\n                      ….\n<\/p><\/blockquote>\n
               50. The boycott of the ICL set out at \u00a7\u00a7 36-49 has
\n                    had a serious effect on the players.\n<\/p><\/blockquote>\n
16.   The allegations against the BCCI which still remain in the<\/p>\n
action filed in the U.K. Courts even after the grant of anti-suit<\/p>\n
injunction are as follows:-\n<\/p><\/blockquote>\n
              5.    The Board of Control for Cricket in India
\n              (\u2015the BCCI\u2016) is a not for profit society registered
\n              in accordance with the Tamil Nadu Societies
\n              Registration Act under the laws of India.           The
\n              membership of the BCCI comprises State cricket
\n              associations and various cricket clubs across
\n              India. It organizes international matches for the
\n              Indian cricket team and a number of domestic
\n              cricket competitions in India, for which it exploits
\n              the broadcasting rights.\n<\/p><\/blockquote>\n
              6.    In particular, the BCCI promotes a Twenty20
\n              cricket competition known as the Indian Premier
\n              League (\u2015the IPL\u2016). The first season of the IPL
\n              was launched in April 2008, the second season<\/p>\n
fao(os)107.2010 & 154.2010                                  Page 38 of 67<\/span>
\n               took place in South Africa in 2009 and the third is
\n              due to commence in India in March 2010. The
\n              worldwide broadcasting rights to the IPL were
\n              sold in February 2008 for ten years for a reported
\n              US$ 1.026 billion to a consortium of the Sony
\n              Television     network    and      the   Singapore-based
\n              World Sports Group (which outbid the ESPN-Star
\n              Sports     network,      jointly    owned     by    News
\n              Corporation and Disney).\n<\/p><\/blockquote>\n
              …..\n<\/p><\/blockquote>\n
              35.   From its inception, ICL has received a hostile
\n              reaction from the BCCI. Early approaches in
\n              correspondence in which ICL aimed to achieve co-
\n              operation between ICL and BCCI were rebuffed by
\n              BCCI.\n<\/p><\/blockquote>\n
              36.   On 21 August 2007, a resolution was adopted
\n              unanimously at a Special General Meeting of the
\n              BCCI, resolving that: \u2015Every individual has a right
\n              to choose whether he wishes to associate himself
\n              with any other organization. However, if he
\n              chooses to associate himself with any other
\n              organization, he will not be entitled to derive any
\n              benefit from BCCI or be associated with any
\n              activities of the Board or its affiliated units\u2016.\n<\/p><\/blockquote>\n
              37.   BCCI has since engaged in a range of
\n              activities clearly calculated to deter and prevent
\n              prospective players (and others) from involving
\n              themselves with ICL, and intended to obstruct the
\n              activities of the ICL.\n<\/p><\/blockquote>\n
fao(os)107.2010 & 154.2010                                    Page 39 of 67<\/span><\/p>\n
                                  PARTICULARS<\/p>\n
               (1)    Barring players associated with ICL from
\n                      eligibility for the Indian national team.\n<\/p><\/blockquote>\n
               (2)    BCCI sacked Kapil Dev as head of the
\n                      Indian National Cricket Academy because
\n                      of his involvement with ICL. Other players
\n                      have been barred from involvement in BCCI
\n                      events by reason of their association with
\n                      ICL.\n<\/p><\/blockquote>\n
               (3)    Interfering with existing and prospective
\n                      contracts between players and the ICL
\n                      through threats and intimidation.
\n               (4)    Instructing all local affiliates not to allow
\n                      cricket grounds to be used for ICL games or
\n                      otherwise to involve themselves or permit
\n                      individuals to involve themselves with ICL,
\n                      on penalty of exclusion from all BCCI
\n                      activities and pensions.\n<\/p><\/blockquote>\n
               (5)    Preventing the use of state-owned stadia for
\n                      use as ICL match venues through BCCI’s
\n                      monopolistic management of such venues
\n                      (or through its control of the local BCCI
\n                      affiliates which manage the use of those
\n                      stadia).\n<\/p><\/blockquote>\n
               (6)    Amending the terms of the BCCI pension
\n                      fund to discriminate against players who
\n                      involve themselves with ICL.\n<\/p><\/blockquote>\n
               (7)    Putting pressure on potential advertisers
\n                      not to advertise on ICL by threatening to<\/p>\n
fao(os)107.2010 & 154.2010                                 Page 40 of 67<\/span>
\n                       withhold    opportunities      for    sponsorship
\n                      activity with the BCCI.\n<\/p><\/blockquote>\n
               (8)    Putting pressure on other country boards to
\n                      ban their players from playing in the ICL
\n                      and to bar them from playing for their
\n                      country where they played in ICL (examples
\n                      of such international bans include Shane
\n                      Bond of New Zealand and Justin Kemp of
\n                      South Africa).\n<\/p><\/blockquote>\n
               (9)    In 2008, the BCCI announced the intention
\n                      (in conjunction with Cricket South Africa
\n                      and    Cricket    Australia)    to    launch    an
\n                      international    club   Twenty20      Champions
\n                      League. Clause 2.4.6 of the invitation to
\n                      tender for commercial rights in respect of
\n                      the competition stated that involvement
\n                      directly or indirectly with ICL would result
\n                      in automatic disqualification of any bidder.
\n               (10) The BCCI imposed a similar clause to that
\n                      referred to in 37(9) above in the IPL
\n                      broadcast rights tender document (see \u00a76
\n                      above), thereby excluding the companies
\n                      operating   the    Zee    branded       television
\n                      channels    from     bidding     as    they    are
\n                      associated with ESPL (see \u00a714 above).\n<\/p><\/blockquote>\n<\/blockquote>\n
17.   Paragraphs 3 and 50 of the Draft Plaint, which referred to<\/p>\n
the players as one of the Claimants have been deleted in the<\/p>\n
action presently pending before the Chancery Division, London.\n<\/p><\/blockquote>\n
Plainly, the foreign (English) professional cricketers are no<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 41 of 67<\/span>
\n longer aggrieved by the alleged machinations of BCCI. Further,<\/p>\n
although there is no pointed reference to BCCI as a Defendant,<\/p>\n
the action filed in England contains the same allegations against<\/p>\n
BCCI.\n<\/p>\n
18.     Thus, it is clear that the ESPL in the action filed by it in<\/p>\n
the U.K. after suffering an anti-suit injunction from the Delhi<\/p>\n
High Court has only made superficial and cosmetic changes by<\/p>\n
dropping BCCI as one of the Defendants but has retained all the<\/p>\n
averments and allegations against the BCCI as it is. Therefore, it<\/p>\n
cannot be said that the action with which the ESPL has now<\/p>\n
filed is different to that which had been articulated in the<\/p>\n
Notice.\n<\/p>\n
19.     The action initially intended to be initiated in the U.K.<\/p>\n
Court was predicated on the premise that \u2015ESPL has plans to<\/p>\n
stage ICL matches in the future outside India, including in the<\/p>\n
U.K.\u2016 The main allegation in the said action is also directed<\/p>\n
against the BCCI. The hostile actions of the BCCI are described<\/p>\n
as \u2015boycott of ICL\u2016 by the BCCI and\/or \u2015orchestration by the<\/p>\n
BCCI\u2016.    These allegations are contained in the following<\/p>\n
paragraphs of the proposed Plaint:-\n<\/p>\n
              36.   From its inception, ICL has received a hostile
\n              reaction from the BCCI. Early approaches in
\n              correspondence in which ICL aimed to achieve co-\n<\/p><\/blockquote>\n
fao(os)107.2010 & 154.2010                               Page 42 of 67<\/span><\/p>\n
                operation between ICL and BCCI were rebuffed by
\n               BCCI.\n<\/p><\/blockquote>\n
               37.   On 21 August 2007, a resolution was adopted
\n               unanimously at a Special General Meeting of the
\n               BCCI, resolving that: \u2015Every individual has a right
\n               to choose whether he wishes to associate himself
\n               with any other organization.. However, if he
\n               chooses to associate himself with any other
\n               organization, he will not be entitled to derive any
\n               benefit from BCCI or be associated with any
\n               activities of the Board or its affiliated units\u2016.\n<\/p><\/blockquote>\n
               38.   BCCI has since engaged in a range of
\n               activities clearly calculated to deter and prevent
\n               prospective players (and others) from involving
\n               themselves with ICL, and intended to obstruct the
\n               activities of the ICL.\n<\/p><\/blockquote>\n
20.   The reliefs sought to be claimed by ESPL in their foreign<\/p>\n
action are as follows:-\n<\/p>\n
        (1) A declaration against all Defendants to the effect
\n        that by agreeing and\/or deciding to carry out and\/or
\n        implement the boycott of the ICL each breached the
\n        Chapter I prohibition and\/or the Chapter II prohibition
\n        and\/or was in restraint of trade;\n<\/p><\/blockquote>\n
        (2) An injunction against each of the Defendants
\n        carrying out and\/or implementing the boycott of the
\n        ICL;\n<\/p><\/blockquote>\n
        (3) An inquiry as to damages in respect of the
\n        infringements of the Chapter I prohibition and\/or the
\n        Chapter II prohibition;\n<\/p><\/blockquote>\n
fao(os)107.2010 & 154.2010                                   Page 43 of 67<\/span><\/p>\n
         (4) Further or other relief; and
\n        (5) Costs.\n<\/p><\/blockquote>\n
21.   From a reading of the two Claims\/Plaints as well as the<\/p>\n
Notice, it cannot be contended otherwise than that the main<\/p>\n
allegations are made against the BCCI for orchestrating the<\/p>\n
alleged boycott against ICL.      No doubt, the Indian Suit is<\/p>\n
pegged against the BCCI together with the concerned Indian<\/p>\n
parties, and the UK action is directed against ICC and ECB, but<\/p>\n
the actions of the BCCI remain at the fulcrum of the contention<\/p>\n
in both the suits.\n<\/p>\n
22.   In the U.K. action, we may reiterate, the allegation is that<\/p>\n
BCCI has influenced ICC and ECB to amend their regulatory<\/p>\n
framework to the end that approval can be granted for<\/p>\n
organizing an unofficial approved cricket tournament, only upon<\/p>\n
the concerned Home-Board conveying its no-objection. The<\/p>\n
assertion of ESPL is that BCCI has, by this stratagem, prevented<\/p>\n
the ICL from getting the status of an ICC approved unofficial<\/p>\n
cricket tournament. As a consequence, the foreign players<\/p>\n
intending to be associated with different affiliate cricket Boards,<\/p>\n
including the ICB could not play in the ICL tournament<\/p>\n
scheduled to be held in India; since they would not receive<\/p>\n
permission from their Home-Boards owing to the opposition of<\/p>\n
BCCI in respect of matches to be held in India, which, in turn,<\/p>\n
fao(os)107.2010 & 154.2010                              Page 44 of 67<\/span>
\n would deleteriously affect the viewership in the U.K. where the<\/p>\n
viewership     is   substantially   of   persons   from   the   Indian<\/p>\n
Subcontinent.\n<\/p>\n
23.   Drawing our attention to the prayers in the English action,<\/p>\n
Mr. Sundaram has contended that the provisions mentioned in<\/p>\n
the foregoing paragraph have not been challenged and no<\/p>\n
reliefs qua the Regulations of the ICC and the ECB have been<\/p>\n
claimed. Therefore, the argument that the distinctiveness of<\/p>\n
cause of action in the UK action is because of the challenge to<\/p>\n
the Regulations of ICC and ECB has no foundation. In Rejoinder,<\/p>\n
Mr. Salve argues that since the relief of Declaration and<\/p>\n
Injunction against the entire \u2017boycott’ is sought, if it is granted,<\/p>\n
the    Regulations      will   automatically   get    struck    down.<\/p>\n
Furthermore, it is contended that the lacuna in drafting, if any,<\/p>\n
should properly be addressed before the UK Court and<\/p>\n
advantage of that cannot be obtained in this Court.<\/p>\n
24.   After perusing the two Claims and cogitating on the<\/p>\n
contentions of the adversaries, we are of the opinion that the<\/p>\n
cause of action in the two is substantially and materially the<\/p>\n
same. The alleged machination of the boycott of ICL by BCCI is<\/p>\n
the pivotal grouse around which the two actions revolve. The<\/p>\n
event, viz. ICL, is an international cricket tournament planned<\/p>\n
to be held in India. The permission sought in UK for the release<\/p>\n
fao(os)107.2010 & 154.2010                                 Page 45 of 67<\/span>
\n of players and the status of an approved unofficial cricket<\/p>\n
tournament was also sought in respect of the tournament which<\/p>\n
is to be held in India only. Therefore, it presently seems to us<\/p>\n
that it cannot be said that merely because a letter seeking the<\/p>\n
approval was written to ICC in the U.K. the substantial cause of<\/p>\n
action occurred in U.K.; as we have already recorded, ICC is<\/p>\n
neither registered in the U.K. nor is its Headquarters located<\/p>\n
there. We are not persuaded that the action filed in England is<\/p>\n
distinct from the cause of action which is the subject matter of<\/p>\n
the Indian litigation. There is a bald averment that the ESPL<\/p>\n
wishes to hold the ICL event in the UK in future. However, in<\/p>\n
our view, this statement of its intent in future will not confer<\/p>\n
jurisdiction upon the UK Court until such event actually<\/p>\n
transpires. No material change would result, we think, even in<\/p>\n
this hypothetical situation. We say this because if it is presumed<\/p>\n
that BCCI would record its objection as a Home-Board, it would<\/p>\n
stultify an ICL outside India by directly banning Indian<\/p>\n
cricketers from participating in such a foreign ICL tourney.<\/p>\n
25.   The second argument is that the UK Suit is being<\/p>\n
prosecuted under the UK Competition Act and, therefore, the<\/p>\n
action is based on a distinct statutory cause of action, thereby<\/p>\n
making the UK action a single forum case. However, we think<\/p>\n
the argument to be misconceived. A statutory cause of action<\/p>\n
fao(os)107.2010 & 154.2010                             Page 46 of 67<\/span>
\n arises from breach of a specific duty cast or right conferred by a<\/p>\n
statute on a person. The existence or provision of a remedy<\/p>\n
being available under a statute would not, ipso facto without<\/p>\n
more, create a cause of action of a single forum character. This<\/p>\n
is especially so when the same remedy can be invoked and<\/p>\n
prayed for in another forum under the laws and statutes of<\/p>\n
different countries. We shall merely make a mention of the<\/p>\n
Judgments cited by learned Senior Counsel for the Respondent,<\/p>\n
viz. Bell’Oggetti International Inc. -vs- Flooring and Lumber<\/p>\n
Company Ltd., 2001 O.T.C. 362 and Horn Linie Gmbh -vs-<\/p>\n
Panamerica Formas E Impresas SA, [2006 2 Lloyd’s Reports 44].<\/p>\n
26.   After comparing the reliefs sought in the two Claims, we<\/p>\n
are of the opinion that these declaratory and injunctive reliefs<\/p>\n
for the very same cause of action can be availed of under the<\/p>\n
Indian Competition Act or under the Indian Contract Act. We<\/p>\n
must immediately clarify that in the event of a challenge<\/p>\n
simplicitor to the ICC Regulations without any reference to the<\/p>\n
alleged machination of BCCI which are already sub judice the<\/p>\n
change would be drastic. Therefore, the argument that an anti-<\/p>\n
suit injunction takes away the juridical advantage is not tenable<\/p>\n
in the facts of the present case.\n<\/p>\n
27.   Having concurred with the learned Single Judge that the<\/p>\n
UK action is a two or multiple forum lis, we shall venture<\/p>\n
fao(os)107.2010 & 154.2010                             Page 47 of 67<\/span>
\n forward to assess whether the UK action is oppressive or<\/p>\n
vexatious.    Mr. Salve’s contention in this regard has already<\/p>\n
been noted by us above. We agree that in a commercial dispute,<\/p>\n
the compulsion to defend an action in a foreign jurisdiction may<\/p>\n
not    invariably        lead   to   the    conclusion   that    the   foreign<\/p>\n
proceedings are oppressive; however, having to defend the<\/p>\n
same allegations by the same party in two different jurisdiction<\/p>\n
is unquestionably oppressive.\n<\/p>\n
28.    We will now          advert     to     Magotteaux Industries, on<\/p>\n
which Mr. Salve has placed reliance. The dispute pertained to a<\/p>\n
patent in respect of which the Plaintiff had filed a case for<\/p>\n
damages and for permanent injunction to restrain the Defendant<\/p>\n
from infringing its patent granted in India. The Defendant had<\/p>\n
taken a plea that there was already a case pending in the US<\/p>\n
Courts under US Tariff Act of a similar nature. The Division<\/p>\n
Bench observed that since a patent is a right granted by the<\/p>\n
sovereign State to the inventor, it is a creation of a statute. The<\/p>\n
privilege is a right, advantage or immunity granted to a person<\/p>\n
to    exclusion     of    all   others.     Therefore,   since   the   alleged<\/p>\n
infringement of the patent is a breach of a statutory right<\/p>\n
granted by a sovereign, its breach in that territory would give<\/p>\n
rise to a distinct and separate cause of action from the<\/p>\n
infringement of a similar patent granted by a different sovereign<\/p>\n
fao(os)107.2010 & 154.2010                                         Page 48 of 67<\/span>
\n state. Since in the present case there is no such breach of<\/p>\n
statutory right, this decision does not help the case of the<\/p>\n
Appellant. Our learned Brothers had observed that so far as the<\/p>\n
infringement of a patent in the US was concerned, these rights<\/p>\n
had been granted by a sovereign power and the cause of action<\/p>\n
pertaining to their violation had also arisen in a foreign<\/p>\n
jurisdiction. That being so, our learned Brothers had declined to<\/p>\n
grant an anti-suit injunction, even though there was allegedly a<\/p>\n
similar infringement perpetrated in India. With due respect to<\/p>\n
our learned and esteemed Brothers, the observation that the<\/p>\n
Explanation to Section 10 of the CPC would also apply<\/p>\n
conversely is in the nature of obiter dicta.      Mr. Salve has<\/p>\n
strenuously canvassed that the Explanation to Section 10 of the<\/p>\n
CPC must enure to the benefit of the Appellants since the legal<\/p>\n
regime obtaining in this country in terms conceives of the<\/p>\n
jurisdictional legitimacy of a lis in India which is identical to<\/p>\n
that pending in a foreign jurisdiction. So far as we see it, the<\/p>\n
Explanation was in existence at the time when India was a<\/p>\n
dominion of a foreign power. The rationale of providing an<\/p>\n
appeal via Letters Patent may well have motivated the<\/p>\n
Legislators in going against the grain of the universal principle<\/p>\n
of law articulated in Section 10 of the CPC viz. a later action is<\/p>\n
required to be stayed. With due respect, we cannot concur with<\/p>\n
fao(os)107.2010 & 154.2010                             Page 49 of 67<\/span>
\n the reasoning that Explanation to Section 10 of the CPC would<\/p>\n
operate conversely to enable a foreign court to assume<\/p>\n
jurisdiction in respect of a cause of action which is pending<\/p>\n
adjudication in this country.   Since it appears to us     that the<\/p>\n
view of our learned Brothers in Magotteaux Industries was<\/p>\n
given en passant and is in the nature of obiter dicta, we think it<\/p>\n
unnecessary to refer this question to a Larger Bench.<\/p>\n
29.   There cannot be any cavil to the propositions laid down in<\/p>\n
Modi Entertainment Network, that a subsequent suit, if held<\/p>\n
to be vexatious and oppressive, can be injuncted by the Indian<\/p>\n
Courts, provided other necessary ingredients are also satisfied.<\/p>\n
Contrary findings of different Courts on same facts are an<\/p>\n
anathema to law, and if a party endeavours to invoke the<\/p>\n
jurisdiction of foreign Court to a cause of action already being<\/p>\n
prosecuted in the national forum, it would amounts to vexatious<\/p>\n
litigation.\n<\/p>\n
30.   In Modi Entertainment Network, the Hon’ble Supreme<\/p>\n
Court has opined that an anti-suit injunction can be granted<\/p>\n
where the foreign proceedings are vexatious, oppressive or<\/p>\n
forum non conveniens. Courts have the bounden duty to ensure<\/p>\n
that the ends of justice are not thwarted. Ergo, an anti-suit<\/p>\n
injunction should be passed. Legal proceedings by an Indian<\/p>\n
party in a foreign Court, in which the prayers predominantly<\/p>\n
fao(os)107.2010 & 154.2010                               Page 50 of 67<\/span>
\n concern another Indian party, even whilst a suit on similar<\/p>\n
allegations and reliefs is still pending in an Indian Court<\/p>\n
between the same parties, is, in our considered opinion,<\/p>\n
vexatious and oppressive.\n<\/p>\n
31.   The argument of Mr. Salve that the proceedings in the UK<\/p>\n
Court cannot be vexatious and oppressive for the reason that<\/p>\n
the UK is the natural forum is also untenable. Both the<\/p>\n
Plaintiff\/ESPL and its main antagonist, BCCI, are Indian parties.<\/p>\n
The Regulations which appears to be hurting ESPL are of ICC<\/p>\n
and the approval and the declaration sought for in the U.K.<\/p>\n
Courts is also directed against the ICC which is a body<\/p>\n
registered in Virgin Islands with working Headquarters in<\/p>\n
Dubai. U.K. Courts thus have territoriality because of the<\/p>\n
location of the ECB, but it cannot be ignored that the reliefs<\/p>\n
claimed against ICB as on date are consequential upon the<\/p>\n
granting of reliefs qua BCCI. Besides, as already stated, the<\/p>\n
boycott, allegedly orchestrated by BCCI, is of the cricketing<\/p>\n
event to be held in India; and loss of viewership in UK is not by<\/p>\n
itself sufficient to make UK the natural forum of the dispute.<\/p>\n
Moreover, it must be presumed that none of the professional<\/p>\n
cricketers having allegiance to the ECB have any grievance with<\/p>\n
regard to the present cause of action.\n<\/p>\n
fao(os)107.2010 & 154.2010                            Page 51 of 67<\/span>\n<\/p>\n
 32.   Furthermore, the evidence sought to be adduced in the<\/p>\n
UK Court are of the same witnesses who have deposed in the<\/p>\n
Suit which is proceeding in India. If the UK Suit is allowed to<\/p>\n
proceed, it will only lead to a duplication of evidence and even<\/p>\n
more detrimentally to the possibility of conflicting or variant<\/p>\n
verdicts. Therefore, in light of all these facts, it appears to us<\/p>\n
that the U.K. Courts cannot be held to be forum conveniens. The<\/p>\n
learned Single Judge was justified in holding UK Courts to be<\/p>\n
forum non conveniens.\n<\/p>\n
33.   In Modi Entertainment Network, the Apex Court<\/p>\n
observed that it is \u2015commonplace that the Courts in India have<\/p>\n
power to issue anti-suit injunction to a party over whom it has<\/p>\n
personal jurisdiction in an appropriate case.    This is because<\/p>\n
Courts of equity exercise jurisdiction in personam.     However,<\/p>\n
having regard to the rule of comity, this power will be exercised<\/p>\n
sparingly because such an injunction though directed against a<\/p>\n
person, in effect causes interference in exercise of jurisdiction<\/p>\n
by another Court\u2016. Thus, the in personam jurisdiction may be<\/p>\n
exercised against the Defendant if the Plaintiff is able to make<\/p>\n
out an appropriate case for its exercise. Indubitably, courts have<\/p>\n
to be circumspect in exercising its power to issue an anti-suit<\/p>\n
injunction, but it must do so where the ends of justice would<\/p>\n
otherwise be defeated.\n<\/p>\n
fao(os)107.2010 & 154.2010                             Page 52 of 67<\/span>\n<\/p>\n
 34.   We shall now analyse the argument of the Appellant that<\/p>\n
the temporary anti-suit injunction granted is against the<\/p>\n
principles of comity and amounts to Court Management of the<\/p>\n
UK Court. Hilton -vs- Guyot, 159 US 113 which was decided by<\/p>\n
the American Supreme Court in 1895 contains a definition of the<\/p>\n
term \u2017comity’ which has also been accepted in Circa 1990 by the<\/p>\n
Canadian Supreme Court in Morguaral Investment -vs- De<\/p>\n
Savoge. It reads – \u2015Comity in the legal sense is neither a matter<\/p>\n
of absolute obligation, on the one hand, nor of courtesy and<\/p>\n
goodwill, upon the other. But it is the recognition which one<\/p>\n
nation allows within its territory to the legislative, executive or<\/p>\n
judicial   acts   of   another   nation,   having   regard     both    to<\/p>\n
international duty and convenience, and the rights of its own<\/p>\n
citizens or of other persons who are under the protection of<\/p>\n
its laws.\u2016 Comity does not demand of a Court possessing<\/p>\n
jurisdiction to abdicate its duty to decide a dispute in favour of a<\/p>\n
foreign Court possessing concurrent jurisdiction. It would be a<\/p>\n
dereliction of duty if the former declines to adjudicate so as to<\/p>\n
enable a \u2017forum non conveniens’ Court to proceed with the<\/p>\n
hearing of a lis filed or intended to be filed before it. In some<\/p>\n
vital respects, it is wholly dissimilar, or even the antithesis of<\/p>\n
the principle of \u2015stay of the suit\u2016 as postulated in Section 10 of<\/p>\n
the CPC. We say this because the prior filing is not determinate<\/p>\n
fao(os)107.2010 & 154.2010                                   Page 53 of 67<\/span>
\n so far as issuance of an anti-suit injunction is concerned; and<\/p>\n
the Court passing this injunction does not halt its own<\/p>\n
proceedings but brings proceedings in another Court to a<\/p>\n
standstill. It achieves this by commanding any or all the parties<\/p>\n
before it, over whom it holds sway, to take requisite action.<\/p>\n
35.   In Society of Lloyd’s -vs- Peter Everett White, [2002]<\/p>\n
I.L.Pr.10, the Court had granted an ad interim anti-suit<\/p>\n
injunction against the Defendant till the disposal of action in its<\/p>\n
jurisdiction. The impugned Order is palpably not the first out of<\/p>\n
its kind, as has been alleged on behalf of the ESPL.<\/p>\n
36.   The reasons for the grant of the anti-suit injunction by the<\/p>\n
learned Single Judge have been crystallized in the following<\/p>\n
paragraph of the impugned Judgment:-\n<\/p>\n
        To summarize, having regard to the factors to which I
\n        have made a reference hereinbelow, I am persuaded to
\n        grant an anti-suit injunction only qua BCCI: (i) the
\n        plaintiff has chosen to file the Indian claim, the issues
\n        in which substantially overlap with the issues raised in
\n        the U.K. claim; (ii) the determination of the issues
\n        raised in the Indian claim would substantially do away
\n        with the grievance of ESPL which finds its reflection in
\n        the U.K. claim; (iii) the evidence in the Indian claim is
\n        at an advance stage. Out of the six (6) witnesses cited
\n        by the ESPL examination of four (4) witnesses is almost
\n        over. Moreover BCCI has already filed its affidavit by
\n        way     of   evidence   (examination-in-chief)   which    is<\/p>\n
fao(os)107.2010 & 154.2010                                Page 54 of 67<\/span>
\n         available with ESPL. To cite an instance of interlinkage
\n        of evidence, the affidavit of Mr Himanshu Mody is a
\n        case in point, in particular, his deposition in paragraph\n<\/p><\/blockquote>\n
        15. In the said paragraph in no uncertain terms the
\n        deponent has alluded to the fact that BCCI is exerting
\n        pressure and intimidating not only players (both Indian
\n        and    foreign)      but   also   “international   bodies”     and
\n        “cricketing bodies” of other countries from the ICL.
\n        This conduct of BCCI is termed by the deponent as
\n        “monopolistic” and “unlawful” causing wrongful loss.
\n        The deponent in paragraph 15(a) and (b) of his affidavit
\n        has given an example of how influence has been
\n        exerted on the foreign cricket board ECB as also ICC.
\n        The policy of CSA and ECB, as contained in the e-mails
\n        of the deponent to the ICL representative, has been
\n        appended as exhibits to the affidavit of the deponent.
\n        There is every possibility of the said evidence being
\n        used by ESPL in its proceedings in U.K.; (iv) both the
\n        BCCI and the ESPL are Indian entities; a substantial
\n        part of the grievance raised with regard to the
\n        recognition of tournaments held by ICL is in India. This
\n        is not to say that ICL is not aggrieved by the non-
\n        recognition       of   tournaments      held   outside       India.
\n        However, both form an inextricable part of ESPL’s
\n        grievance in the U.K. claim; (v) on a comparative scale
\n        the disadvantage of BCCI in form of cost and expenses
\n        (see ONGC case) would be greater, while the ESPL may
\n        have the advantage of a possibly higher monetary gain
\n        in the form of a damage, if it succeeds; (See SNI
\n        Aerospatiale case). In the Midland Bank case the
\n        possibility of Midland Bank being mulct with a greater<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 55 of 67<\/span>
\n         quantum of damages was considered as a relevant
\n        factor in the grant of an anti-suit injunction. (vi) BCCI
\n        has a legitimate right to contend that the Indian court
\n        being the court with which issues raised qua BCCI have
\n        a real and substantial connection – it has a legitimate
\n        right to be sued in the Indian courts. The fact that in
\n        the U.K. claim and in the documents filed there is a
\n        substantial reference to the events of April\/August,
\n        2007 and that in respect of those issues the pendency
\n        of the Indian claim cannot be denied; and (vii) lastly,
\n        even if it is assumed that U.K. court is the only forum
\n        available    to      ESPL   even   then   on   a   principle   of
\n        unconscionablity (the reasons for which I have given
\n        hereinabove) BCCI is entitled to injunction qua itself.\n<\/p><\/blockquote>\n
37.   The learned Single Judge, in our opinion, was correct in<\/p>\n
holding that the BCCI has established that there is substantial<\/p>\n
overlapping of the two actions and that there would be a risk of<\/p>\n
conflicting judgments\/orders if two parallel proceedings on the<\/p>\n
same issues are allowed to be preceded with. The tests laid<\/p>\n
down in Modi Entertainment Network for the grant of an<\/p>\n
anti-suit injunction have clearly been met since it appears to us<\/p>\n
also that the foreign suit is oppressive, vexatious and in a forum<\/p>\n
non conveniens. So far as the grant of the relief as a temporary<\/p>\n
injunction is concerned, the three factors that should co-exist,<\/p>\n
viz, prima facie case, balance of convenience, irretrievable loss<\/p>\n
and injury, have been shown so to exist by BCCI.<\/p>\n
fao(os)107.2010 & 154.2010                                     Page 56 of 67<\/span>\n<\/p>\n
 38.   We, being the Appellate Court, would be justified in<\/p>\n
interfering with the impugned Order only if it is perverse. We do<\/p>\n
not detect any perversity. The view of the learned Single Judge<\/p>\n
is, at the lowest, a plausible one. In Wander Ltd. -vs- Antox<\/p>\n
India P. Ltd., 1990(Supp) SCC 727, their Lordships had analysed<\/p>\n
the powers of the Appellate Court to interfere with the<\/p>\n
discretionary orders passed by the lower courts in these terms –<\/p>\n
\u2015The appellate court will not interfere with the exercise of<\/p>\n
discretion of the court of first instance and substitute its own<\/p>\n
discretion except where the discretion has been shown to have<\/p>\n
been exercised arbitrarily, or capriciously or perversely or<\/p>\n
where the court had ignored the settled principles of law<\/p>\n
regulating grant or refusal of interlocutory injunctions. An<\/p>\n
appeal against exercise of discretion is said to be an appeal on<\/p>\n
principle. Appellate court will not reassess the material and<\/p>\n
seek to reach a conclusion different from the one reached by the<\/p>\n
court below if the one reached by that court was reasonably<\/p>\n
possible on the material. The appellate court would normally not<\/p>\n
be justified in interfering with the exercise of discretion under<\/p>\n
appeal solely on the ground that if it had considered the matter<\/p>\n
at the trial stage it would have come to a contrary conclusion. If<\/p>\n
the discretion has been exercised by the trial court reasonably<\/p>\n
and in a judicial manner the fact that the appellate court would<\/p>\n
fao(os)107.2010 & 154.2010                             Page 57 of 67<\/span>
\n have taken a different view may not justify interference with the<\/p>\n
trial court’s exercise of discretion\u2016. This decision has been<\/p>\n
followed subsequently in Seema Arshad Zaheer -vs- Municipal<\/p>\n
Corpn. of Greater Mumbai, (2006) 5 SCC 282. The City Civil<\/p>\n
Court     had    granted     a   temporary   injunction      against   the<\/p>\n
Corporation which was challenged before the Bombay High<\/p>\n
Court. Speaking for the Bench His Lordship R.V. Raveendran<\/p>\n
made the following pithy observations:-\n<\/p>\n
        32. Where the lower court acts arbitrarily, capriciously
\n        or perversely in the exercise of its discretion, the
\n        appellate court will interfere. Exercise of discretion by
\n        granting a temporary injunction when there is \u2015no
\n        material\u2016, or refusing to grant a temporary injunction
\n        by ignoring the relevant documents produced, are
\n        instances of action which are termed as arbitrary,
\n        capricious or perverse. When we refer to acting on \u2015no
\n        material\u2016 (similar to \u2015no evidence\u2016), we refer not only to
\n        cases where there is total dearth of material, but also to
\n        cases where there is no relevant material or where the
\n        material, taken as a whole, it is not reasonably capable
\n        of supporting the exercise of discretion. In this case,
\n        there was \u2015no material\u2016 to make out a prima facie case
\n        and     therefore,   the   High   Court   in   its    appellate
\n        jurisdiction, was justified in interfering in the matter
\n        and vacating the temporary injunction granted by the
\n        trial court.\n<\/p><\/blockquote>\n
fao(os)107.2010 & 154.2010                                     Page 58 of 67<\/span><\/p>\n
 39.   In Ramdev        Food Products (P) Ltd. -vs- Arvindbhai<\/p>\n
Rambhai Patel, (2006) 8 SCC 726, the Supreme Court has taken<\/p>\n
into consideration both Wander Ltd. and Seema Arshad<\/p>\n
Zaheer -vs- Municipal Corpn. of Greater Mumbai, (2006) 5 SCC<\/p>\n
282. His Lordship, S.B. Sinha, J., has perspicuously propounded<\/p>\n
the law in these words:\n<\/p>\n
             The grant of an interlocutory injunction is in
\n      exercise of discretionary power and hence, the appellate
\n      courts will usually not interfere with it. However, the
\n      appellate courts will substitute their discretion if they
\n      find that discretion has been exercised arbitrarily,
\n      capriciously, perversely, or where the court has ignored
\n      the settled principles of law regulating the grant or
\n      refusal of interlocutory injunctions. This principle has
\n      been stated by this Court time and time again. [See for
\n      example Wander Ltd. v. Antox India P. Ltd.,<\/a> 1990 (Supp)
\n      Supreme Court Cases 727, Laxmikant V. Patel v.
\n      Chetanbhai Shah,<\/a> (2002) 3 SCC 65 and Seema Arshad
\n      Zaheer -vs- Municipal Corpn. of Greater Mumbai, (2006)
\n      5 SCC 282].\n<\/p><\/blockquote>\n
             The appellate court may not reassess the material
\n      and seek to reach a conclusion different from the one
\n      reached by the court below if the one reached by that
\n      court was reasonably possible on the material. The
\n      appellate court would normally not be justified in
\n      interfering with the exercise of discretion under appeal
\n      solely on the ground that if it had considered the matter
\n      at the trial stage it would have come to a contrary
\n      conclusion.\n<\/p><\/blockquote>\n
fao(os)107.2010 & 154.2010                             Page 59 of 67<\/span><\/p>\n
 40.   In view of the above, Appellant has failed to make out a<\/p>\n
case warranting interference with the order of the learned<\/p>\n
Single Judge. The Appeal filed by ESPL is, therefore, dismissed.<\/p>\n
Pending applications also stand dismissed.\n<\/p>\n
41.   We shall now deal with the Appeal filed by the BCCI which<\/p>\n
is FAO(OS) No.154\/2010 and the Cross-Objections filed by ICC<\/p>\n
and ECB in the aforegoing ESPL Appeal. Both the Appeal and<\/p>\n
the Cross-Objections are directed against that part of the Order<\/p>\n
of learned Single Judge wherein the interim injunction qua ICC<\/p>\n
and ECB has been vacated. The reason for vacating the<\/p>\n
injunction sought in favour of ICC and ECB, as recorded by<\/p>\n
learned Single Judge, is that the injunction against ICC and ECB<\/p>\n
\u2015cannot be entertained on the short ground that neither the ICC<\/p>\n
nor ECB is before me. The plaintiff in its suit cannot propound<\/p>\n
the case of a litigant for relief who has not sought relief from<\/p>\n
the Court\u2016.\n<\/p>\n
42.   In the Cross-Objections filed by ICC and ECB, Mr. Ramji<\/p>\n
Srinivasan, learned Senior Counsel for ICC and ECB sought to<\/p>\n
urge that the learned Single Judge erred in vacating the stay<\/p>\n
qua ICC and ECB which was operating since 25.01.2010. His<\/p>\n
argument is that ICC and ECB are Defendants in BCCI Suit and<\/p>\n
thus were undeniably before the learned single Judge. Further,<\/p>\n
it is stated that a confusion was caused by the Order passed on<\/p>\n
fao(os)107.2010 & 154.2010                           Page 60 of 67<\/span>
\n 7.1.2010 in FAO(OS) No.20\/2010 where the Division Bench<\/p>\n
observed that presence of ICC and ECB was not necessary at<\/p>\n
the hearing of the injunction application. Mr. Srinivasan states<\/p>\n
that this was taken to understand that ICC and EBC need not be<\/p>\n
present as necessary party and that the presence of BCCI would<\/p>\n
suffice before the      learned   Single   Judge.   Learned   Senior<\/p>\n
Counsel for ESPL has vehemently refuted the stand of Mr.<\/p>\n
Srinivasan stating that ICC and ECB never submitted to the<\/p>\n
jurisdiction of the Hon’ble Delhi High Court, thus they cannot<\/p>\n
seek any protection from this Court and therefore the learned<\/p>\n
Single Judge was justified in not extending the anti-suit<\/p>\n
Injunction qua them. Secondly, it has been stated that FAO(OS)<\/p>\n
No.2\/2010 was filed by ESPL against the Order dated 7.12.2009<\/p>\n
injuncting ESPL from proceeding in the proposed action in UK.<\/p>\n
The Division Bench, after observing that since Order XXXIX<\/p>\n
Rules 1 and 2 application was still not decided finally, it was not<\/p>\n
appropriate to hear the Appeal until the application is finally<\/p>\n
disposed of.      In view of the urgency, the Division Bench<\/p>\n
preponed the date of hearing and passed a direction that the<\/p>\n
application be disposed of by 30.1.2010 by the learned Single<\/p>\n
Judge. Further, it was also directed in light of the urgency that<\/p>\n
Memorandum of Appeal be treated as Reply to the Order XXXIX<\/p>\n
Rules 1 and 2 application and in that light only, the Court<\/p>\n
fao(os)107.2010 & 154.2010                               Page 61 of 67<\/span>
\n observed that presence of Defendant Nos. 2 and 3, that is, ICC<\/p>\n
and ECB, \u2015shall not be necessary for the purpose of the said<\/p>\n
hearing\u2016. This clarification, as per learned Senior Counsel for<\/p>\n
ESPL, was made so as to enable the learned Single Judge to<\/p>\n
dispose of Order XXXIX Rules 1 and 2 application expeditiously,<\/p>\n
even in the absence for any reason of ICC and ECB. We are in<\/p>\n
no manner of doubt that this did not mean that ICC and ECB<\/p>\n
were totally absolved from entering appearance and making the<\/p>\n
equitable prayers before the learned Single Judge. It is also<\/p>\n
stated that in light of the fact that ICC and ECB had not<\/p>\n
appeared before the learned Single Judge at the time of disposal<\/p>\n
of the application, nor have they submitted to the jurisdiction of<\/p>\n
Delhi High Court, the Cross-Objections filed by them in the<\/p>\n
ESPL Appeal should not be entertained. On the issue of<\/p>\n
maintainability of the Cross-Objections, Mr. Srinivasan has<\/p>\n
argued that both ICC and ECB have been made parties to the<\/p>\n
Suit   filed   by   the   BCCI,   that   both   ICC   and   ECB   have<\/p>\n
unconditionally subjected themselves to the jurisdiction of Delhi<\/p>\n
High Court, which fact has been duly recorded in our Order<\/p>\n
dated 19.07.2010, in FAO(OS) 107\/2010. It is also argued that<\/p>\n
ECB and ICC have filed their Written Statements in the Suit and<\/p>\n
that they have a substantial interest in the matter and therefore<\/p>\n
vacation of stay qua them severely works to their detriment.<\/p>\n
fao(os)107.2010 & 154.2010                                  Page 62 of 67<\/span>\n<\/p>\n
 43.     Mr. Srinivasan further contends that the springboard of<\/p>\n
the action before the UK Court is the alleged boycott of ICL by<\/p>\n
BCCI. The cause of action that pertains to ICC and ECB ensued<\/p>\n
subsequent and consequent upon the said boycott.        Since the<\/p>\n
admitted position by ESPL is that the BCCI is at the centre of<\/p>\n
the entire conspiracy hatched against ICL and the same is<\/p>\n
already being adjudicated before the Delhi High Court, it would<\/p>\n
be travesty of justice if ICC and ECB are sued in the U.K. Court<\/p>\n
for the said dispute which essentially is between ESPL and<\/p>\n
BCCI.     ICC and ECB have now filed their respective Written<\/p>\n
Statements in which they have stated that the Indian Court may<\/p>\n
not have the territorial jurisdiction to adjudicate the allegations<\/p>\n
based on the events that occurred outside India, but since the<\/p>\n
entire grievance can be decided in the Indian Suit; therefore,<\/p>\n
ESPL may be injuncted from prosecuting its action also against<\/p>\n
ICC and ECB. Once the same is decided, and the Indian Court<\/p>\n
pronounces on the allegations of anti-competitive practices<\/p>\n
levied against the BCCI, ESPL can then based on that decision<\/p>\n
pursue its remedies, if any, against ICC and ECB in the U.K.<\/p>\n
Court. Mr. Srinivasan has drawn our attention to various<\/p>\n
portions of the impugned Order where it has been observed that<\/p>\n
the cause of action and issues in the two claims are overlapping<\/p>\n
and that adjudication of the Indian Suit would substantially<\/p>\n
fao(os)107.2010 & 154.2010                              Page 63 of 67<\/span>
\n render the cause in UK otiose. (These observations, however,<\/p>\n
are made in the context of the BCCI and not as regards ICC and<\/p>\n
ECB.)<\/p>\n
44.     Mr. Sundaram, in the Cross Appeal numbered FAO(OS)<\/p>\n
154\/2010 filed by the BCCI against the impugned Judgment, has<\/p>\n
pointed out that the mischief that is caused by excluding ECB<\/p>\n
and ICC from the protection of anti-suit injunction is that ESPL<\/p>\n
is proceeding with its proposed suit by dropping BCCI from the<\/p>\n
action    initiated in   the U.K., though it has   retained all the<\/p>\n
allegations against BCCI. This, according to Mr. Sundaram, has<\/p>\n
caused a piquant situation where despite the BCCI not being a<\/p>\n
party to the action as a Defendant, all the allegations against<\/p>\n
the BCCI still survive and would require adjudication by the<\/p>\n
U.K. Court. Therefore, the purpose of the anti-suit injunction<\/p>\n
qua the BCCI also stands defeated in effect. It is, therefore,<\/p>\n
urged that the entire action based on the alleged boycott by the<\/p>\n
BCCI of ICL and its consequential events be injuncted in toto as<\/p>\n
it contains the same factual allegations which have been<\/p>\n
narrated in the Indian Suit.\n<\/p>\n
45.     Mr. Vaidyanathan, learned Senior Counsel controverts<\/p>\n
these arguments on the basis that ICC and ECB have<\/p>\n
throughout shown reluctance to appear before the Indian Court<\/p>\n
and have not subjected themselves to the jurisdiction of this<\/p>\n
fao(os)107.2010 & 154.2010                              Page 64 of 67<\/span>
\n Court. It is further contended that the events on which the U.K.<\/p>\n
action is predicated are beyond the jurisdictional sway of this<\/p>\n
Court, and this fact has also been admitted by ICC and ECB in<\/p>\n
their Written Statements. Further, it is submitted by him that<\/p>\n
the Delhi High Court is not the appropriate or natural forum to<\/p>\n
entertain the English action. Thus, in the entire conspectus, an<\/p>\n
anti-suit injunction qua ICC and ECB cannot be granted.<\/p>\n
Learned Senior Counsel has placed reliance on Mitchell -vs-<\/p>\n
Carter, (1997 BCC 907) and Barclays Bank PLC -vs- Homan,<\/p>\n
(1992 BCC 757).\n<\/p>\n
46.   We shall now compare the asseverations in the proposed<\/p>\n
action sent along with the Notice issued initially by the<\/p>\n
Solicitors of the Appellant, and the U.K. action now pending in<\/p>\n
the High Court of Justice, Chancery Division after the grant of<\/p>\n
anti-suit injunction by the learned Single Judge in favour of<\/p>\n
BCCI. The averments qua the BCCI in the draft accompanying<\/p>\n
Notice as well as the action pending in the Chancery Division<\/p>\n
have already been reproduced above and it is noted that only<\/p>\n
cosmetic changes are made and there is no substantial<\/p>\n
difference in the two actions.\n<\/p>\n
47.   While upholding the injunction as regards BCCI, we have<\/p>\n
expressed the opinion that the English action substantially<\/p>\n
encompasses allegations that are also the subject matter of<\/p>\n
fao(os)107.2010 & 154.2010                           Page 65 of 67<\/span>
\n Indian Suit which must properly be tried by Indian Court only.<\/p>\n
Having decided       so,     we have to agree with Mr. Sundaram,<\/p>\n
learned Senior Counsel for the BCCI that if the allegations as<\/p>\n
regards the role of the BCCI are allowed to be adjudicated in<\/p>\n
the U.K. action in the absence of BCCI, the temporary anti-suit<\/p>\n
injunction granted in its favour would prove to be a pyrrhic<\/p>\n
victory. As we have injuncted ESPL from proceeding against the<\/p>\n
BCCI on the ground that the proposed UK action overlaps with<\/p>\n
the Indian Suit, the lis ought not to be allowed to proceed.<\/p>\n
Therefore, in the interest of justice, and to prevent the mischief<\/p>\n
that is caused by a partial stay it is expeditious and necessary<\/p>\n
that the action which ESPL has now initiated which relies<\/p>\n
essentially on the allegations against the BCCI be also stayed.<\/p>\n
This position would obtain regardless of whether or not BCCI is<\/p>\n
a party to the U.K. litigation. It seems to us that if the Indian<\/p>\n
Suit is decided in favour of ESPL, the UK claim against ICC and<\/p>\n
ECB would become redundant in view of the nature of<\/p>\n
declaration and injunction claimed in the Indian Suit. It is the<\/p>\n
case of ESPL that the amendments in the Rules of ICC and the<\/p>\n
refusal to grant the status of an approved unofficial tournament<\/p>\n
was on the instance of the BCCI. The refusal to release players<\/p>\n
by ECB was allegedly is because of the pressure exerted by the<\/p>\n
BCCI and the provisions of ICC. If ESPL is able to prove anti-<\/p>\n
fao(os)107.2010 & 154.2010                             Page 66 of 67<\/span>
\n competitive practices on the part of the BCCI and obtain a<\/p>\n
mandatory injunction against all such actions, all its grievances<\/p>\n
can be met by a decree in the Indian Suit itself.<\/p>\n
48.   In this analysis, BCCI has been able to establish the<\/p>\n
vexatious and oppressive nature of the U.K. action which ESPL<\/p>\n
is currently pursuing against ICC and ECB. We think it<\/p>\n
appropriate and in the interest of justice to pass an interim<\/p>\n
injunction against ESPL from proceeding with the action against<\/p>\n
ICC and ECB pending in the Chancery Division, London in so far<\/p>\n
as that action contains allegations against BCCI or in the event<\/p>\n
that the adjudication of that action overlaps with the pending<\/p>\n
Indian Suit, viz. CS(OS) No.1566\/2007.\n<\/p>\n
49.   The Appeal of BCCI as well as        the      Cross-Objections<\/p>\n
filed by ICC and ECB are allowed in the above                 terms.<\/p>\n
CM No.4243\/2010 stands disposed off. There shall be no order<\/p>\n
as to costs.\n<\/p>\n
50.   Trial Court record be sent back forthwith.<\/p>\n
                                    ( VIKRAMAJIT SEN )
\n                                          JUDGE<\/p>\n
                                    ( MUKTA GUPTA )
\n                                         JUDGE
\nMarch 31, 2011<\/p>\n
fao(os)107.2010 & 154.2010                                Page 67 of 67<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Essel Sports Pvt. Ltd.(Indian … vs Board Of Control For Cricket In … on 31 March, 2011 Author: Vikramajit Sen * IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) No.107\/2010 & CM Nos. 2517\/10, 2520\/10, 6557- 58\/10 & 6561-62\/10 Essel Sports Pvt. Ltd. …Appellant through (Indian Cricket League) Mr. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-146207","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nEssel Sports Pvt. 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