Bombay High Court: A suit was filed in the nature of an anti-enforcement action seeking an injunction to restrain the defendants from enforcing an anti-suit permanent injunction order passed by the High Court of Singapore restraining the plaintiff from proceeding with his petition filed against the defendants before the National Company Law Tribunal (NCLT), Mumbai, raising disputes pertaining to oppression and mismanagement. Manish Pitale J., granted the temporary injunction restraining enforcement of the anti-suit permanent injunction order as the plaintiff has made out all the three parameters of prime facie case, grave and irreparable loss and balance of convenience, for grant of temporary injunction to resist enforcement.
The plaintiff is seeking a declaration that the NCLT is the only appropriate and competent forum to decide the disputes and grievances raised by the plaintiff, pertaining to oppression and mismanagement against the defendants. It is the case of the plaintiff that since disputes pertaining to oppression and mismanagement under Indian law are non-arbitrable, it would be futile for him to raise the same in an arbitration proceeding initiated by defendant 2 at Singapore, particularly because an award passed in pursuance of such arbitral proceeding would not be enforceable in India. It is claimed that, in this backdrop, unless a temporary injunction order restraining the defendants from enforcing the anti-suit permanent injunction order is granted, the plaintiff will not be able to enforce the only remedy available to him in law, thereby rendering him remediless.
On the aspect of whether the grant of an anti-enforcement order during the pendency of the suit, being in the nature of a temporary injunction to resist an anti-suit injunction, requires the applicant/plaintiff to satisfy the three-pronged test, the Court noted that while deciding the present application, whereby the plaintiff seeks temporary injunction to restrain defendant 2 from enforcing the anti-suit permanent injunction order dated 26-10-2021 passed by the High Court of Singapore, the well-established three-pronged test of prima facie case, grave and irreparable loss being suffered in the absence of temporary injunction and balance of convenience, will have to be examined. This is because a prayer for the grant of such temporary injunction amounting to an anti-enforcement action is nothing but a species of injunction since such a relief is an equitable relief.
The Court further noted that the disputes pertaining to oppression and mismanagement under Indian law, are not arbitrable and only the NCLT has exclusive jurisdiction to decide such disputes. On the submission by the defendants that since the plaintiff himself agreed to the resolution of all disputes with the defendants through arbitration and the place of arbitration was chosen as Singapore, the law of Singapore would apply to the disputes between the parties, and remedy available is before the NCLT only, the Court observed that a perusal of the clauses in SHA showed that the agreed seat of arbitration is Singapore but, clause 20.3, specifically stipulated that the enforcement of award of the arbitral tribunal constituted under the said arbitration clause, shall be subject to provisions of the Indian Arbitration Act. Thus, it becomes abundantly clear that when the subject matter of dispute, as in this case pertaining to oppression and mismanagement, is incapable of settlement through arbitration under the law of India, the Court cannot have any discretion in such matters and enforcement of such a foreign award becomes an impossibility. Thus, the plaintiff, can seek redressal of his grievance on the aspect of oppression and mismanagement, only in his petition filed before the NCLT.
The Court opined that the principle of comity of Courts is well recognized, but the said principle cannot override the aforesaid valuable right of a litigant to access of justice, particularly when an injunction, as in this case, an anti-suit injunction, is issued by a foreign Court having the effect of interference with or preventing the plaintiff from pursuing the only legal remedy available in the facts and circumstances of the case. If such an injunction of the foreign Court is offensive to the domestic public policy, enforcement of the same can be resisted and the principle of comity of Courts cannot be used as a weapon to leave a litigant completely remediless. Thus, the plaintiff has been able to make out a strong prima facie case for issuance of an anti-enforcement temporary injunction during the pendency of the suit. However, the Court must cautiously tread on such a path, lest it trenches upon the jurisdiction of the NCLT, which is the only forum of exclusive jurisdiction to render findings on the aspect of oppression and mismanagement. If this Court travels beyond a point on such a path, upon which the defendants invite this Court to travel, it will amount to pre-empting the exercise of exclusive jurisdiction by the NCLT and it would have the tendency of hurting the interests of either party to the present proceedings or all of them.
On applying the well-established three-pronged test for considering whether temporary injunction, as claimed in the present application, can be granted, the Court concluded that it cannot be countenanced that the plaintiff would stand restrained from pursuing the only remedy available to him before the NCLT, while the arbitration at Singapore would continue and the award that may be rendered therein would be unenforceable in India. Therefore, on the aspect of grave and irreparable loss also, the plaintiff has made out a case in his favour. As regards the balance of convenience, if the temporary injunction sought by the plaintiff is not granted, the plaintiff shall stand restrained from pursuing the only remedy available to him as regards the disputes of oppression and mismanagement, while if such temporary injunction is granted, the plaintiff would be able to pursue such a remedy. Thus, the plaintiff has made out all the three parameters for grant of temporary injunction to resist enforcement.
The Court issued an order of temporary injunction restraining defendant 2 and/or its agents, directors, employees, servants and/or any person claiming through or under it from, in any manner, whether directly or indirectly, enforcing the anti-suit permanent injunction order dated 26-10-2021 passed by the High Court of the Republic of Singapore; and an appeal court order dated 06-01-2023 passed by the Court of Appeal of the Republic of Singapore.
[Anupam Mittal v People Interactive Pvt Ltd., Interim Application No.1010 of 2021 in Suit No. 95 of 2021]
Advocates who appeared in this case :
Mr. Darius Khambata, Senior Advocate a/w. Mr. Sharan Jagtiani, Senior Advocate, Mr. Kunal Dwarkadas, Mr. Rahul Dwarkadas, Mr. Abhijit Joshi, Mr.Areez Gazdar, Mr. Nutash Kotwal, Ms. Shireen Mistri, Mr. Karan Rukhana and Mr. Ammar Faizullabhoy i/b. Veritas Legal for Applicant / Plaintiff.
Mr. Janak Dwarkadas, Senior Advocate a/w. Mr. Nikhil Sakhardande, Senior Advocate a/w. Mr. Rajendra Barot, Ms. Anusha Jacob, Ms. Richa Borthakur and Ms. Mrudula Dixit i/b. AZB & Partners for Respondent No.2.
Mr. Nikhil Sakhardande, Senior Advocate a/w. Mr. Rajendra Barot, Ms. Anusha Jacob, Ms. Richa Borthakur and Ms. Mrudula Dixit i/b. AZB & Partners for Defendant No.3.
Ms. Rishika Harish a/w. Ms. Shivani Prasad i/b. TRD Associates for Defendant Nos.4 and 5