Notes Horlicks v Heinz 3.

Jurisdiction of this Court to entertain the present suits as a part of cause of action arises in Delhi, is not disputed. The defendant, however, submits that this Court should not entertain the present suits on the principle of 'forum non conveniens' and the parties have been extensively heard on the said aspect and on the aspect of grant of ad interim injunction. Suit Before the Calcutta High Court 12. It was the contention of the plaintiff(s) that principle of 'forum non conveniens' is not incorporated and recognized under the Code. If a part of cause of action has arisen within the jurisdiction of this Court, the plaints cannot be rejected and the plaintiff(s) cannot be asked to approach the Bombay High Court. It was stated that cause of action in the present suits are the disparaging advertisements of the defendant, which are not the subject matter of the suit before the Bombay High Court i.e. the alleged disparaging advertisement of the plaintiff(s). Per contra, the defendant argues that principle of 'forum non conveniens' is not alien to Section 20 of the Code and is protected by Section 151 of the Code. It is alleged that the present cases are one of forum shopping and directly a result of the advertisement of the plaintiff(s) herein, which is subject matter of challenge before the Bombay High Court. If the plaintiff(s) can show and advertise comparing the two products and highlight the lower price, the defendant is entitled to protect and advertise that their product is superior and better than the plaintiff(s) product and explain the price difference findings. 14. It is not disputed by both the parties that principle of 'forum non conveniens' is a part of common law or private international law but the question is whether the said principle can be applied even when a party invokes territorial jurisdiction of a Court and satisfies requirements of Section 20(c) of the Code in the sense that a part of cause of action has arisen in Delhi. This question can be answered by examining whether Section 20 of the Code prohibits and oust applicability of the said principle. 16. The question whether Section 20 is exhaustive and, therefore, prohibits applicability of 'forum non conveniens' has not been directly answered in any decision. The said principle was referred to in Kusum Ingots and Alloys v. Union of India, reported in 111 (2004) DLT 48 (SC)=III (2004) BC 56 (SC)=III (2004) SLT 565=(2004) 6 SCC 254, in a case wherein the question of territorial jurisdiction of a High Court to maintain a writ petition was examined. The Supreme Court has observed that a High Court may refuse to exercise discretionary jurisdiction by invoking the principle or doctrine of 'forum non conveniens' even if a small part or fraction of part of cause of action has arisen within the jurisdiction of the High Court. The Supreme Court in the said case quoted with approval decisions of the Calcutta High Court in Bhagat Singh Bugga v. Diwan Jagbir Sawhney, reported in AIR 1941 Calcutta 670 and Madanlal Jalan v. Madanlal, reported in (1945) 49 CWN 357, which were cases not relating to a writ petition under Article 226 of the Constitution Of India, 1950. Reference with approval is an indication that the Supreme Court did not consider principle of 'forum non conveniens' as alien or contrary to Section 20 of the Code.

17. Principle of forum non conveniens has been also referred to by the Supreme Court in Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd., reported in II (2006) BC 515 (SC)=I (2006) CCR 178 (SC)=II (2006) SLT 496=(2006) 3 SCC 658. 18. In Ambica Industries v. Commissioner of Central Excise, reported in (2007) 6 SCC 769 the Supreme Court observed: "38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate Forum based upon the situs of the Tribunal would lead to an anomalous result. For example, 'an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed [See Suresh Desai and Associates v. CIT, 1998 (230) ITR 912 at 915-917 and CCE v. Technological Institute of Textile, in (1998) 76 DLT 862 (DB)]. 40. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action, as what is necessary to be proved, before the petitioner can obtain a decree, is material facts. The expression material facts is also known as integral facts. 41. Keeping in view the expression "cause of action" used in Clause (2) of Article 226 of the Constitution Of India, 1950, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered." However, these cases again are under Articles 226 and 227 of the Constitution Of India, 1950, though reference is made to Section20 of the Code. 19. Principle of 'forum non conveniens' was, referred to by a Single Judge of this Court in Ansal Buildwell Ltd. v. North Eastern Indira Gandhi Institute of Health and Medical Science, reported in 118 (2005) DLT 274=ILR (2005) 1 Del. 751, in a petition dealing with Section 9 of the Arbitration and Conciliation Act, 1996 and Section 20 of the Code in the following words: "25. In the context of forum conveniens it may be noted that in an appropriate case, a Court may refuse to exercise its discretionary jurisdiction by invoking the said doctrine. While invoking the doctrine of forum conveniensa. Court may refuse to exercise its discretionary jurisdiction notwithstanding that some part of cause of action has arisen within the territorial jurisdiction of the Court."

20. Another Single Judge of this Court in Milk Food Limited v. Union Bank of India, reported in 2007 (2) CTLJ 362 (DEL) has accepted that principle of forum non conveniens is not barred or prohibited and can be applied by Courts. The two relevant paragraphs of the said judgment being paragraph 28 and paragraph 41 are quoted below: "28. Learned Counsel for the plaintiffs also sought to contend that the rule of forum conveniens guides the Court in deciding objections relating to territorial jurisdiction. In Lohia Starlinger Limitedand Anr. v. Govt of NCT of Delhi and Ors., (2006) V AD (Del) 732, learned Single Judge of this Court observed that so far as civil litigation is concerned, it has been held that the same can be instituted in any Court where even a part of the cause of action has arisen. However, it has been held by the Apex Court that it is not every fact pleaded by a litigant which gives rise to a cause of action and only such facts as are necessary to adjudicate upon the lis would constitute a cause of action conferring territorial jurisdiction. Even if it was found that a part of the cause of action has arisen within the jurisdiction of the Court, on the principles of forum non conveniens, or otherwise, it may refuse to exercise jurisdiction in the matter. 41. As regards the principle of forum non conveniens, the position is that the plaintiff's choice of Forum is usually not disturbed unless the balance of convenience is strongly in favour of the defendant. In determining whether a more appropriate Forum exists, connecting factors, such as those affecting the convenience of parties, expenses involved and the law governing the relevant transactions are to be looked into. The mere fact that a part of the cause of action has arisen within the jurisdiction of the Court may itself not be considered to be a determinative factor compelling the Court to decide the matter on merits. In determining which of the available Forums is the forum conveniens in a given matter, the convenience of all the parties had to be seen. In this behalf, reference may be made to the recent judgment of this Court in (India TV) Independent News Service Pvt. Limited v. India Broadcast Live LLC and Ors., (I.A Nos. 651 /2007, 1336/2007 and 2611 / 2007) decided on 10.7.2007.In the present case, both the plaintiffs and the defendant have branches /offices at Delhi. The bank guarantees were payable at any place including Delhi. Thus, Delhi cannot be said to be a forum 11011 conveniens in the present matter." 21. In Moser Bear of India Limited v. Koninklijke Philips Electronics NV and Others, reported in 151 (2008) DLT 180, a Single Judge of this Court was deciding an interim application for grant of anti-suit injunction and it was observed that while deciding the said question, appropriate forum or 'forum non conveniens' should be taken into consideration to decide whether the proceedings before the other Court are oppressive or vexatious. However, the Court noticed the distinction between the concepts of 'anti-suit injunction' and 'forum non conveniens' and has observed as under: "7. The concept of anti-suit injunction and forum non conveniens require some examination. An anti-suit injunction is granted by the Court preventing the parties before it from instituting or continuinp, with proceedings in another Court. On the other hand, the doctrine of forum non conveniens is invoked by Court to not entertain a matter presented before it in view of the fact that there

exists a more appropriate Court of competent jurisdiction which would be in a better position to decide the lis between the parties. So, in a sense the principle on which an anti-suit injunction is imposed is just the reverse of the principle on which the doctrine of forum non conveniens is employed. To make it absolutely clear, an example would be appropriate. Assuming that there are two Courts A and B at different places and both having jurisdiction in a particular matter, a party may approach Court A for anti-suit injunction against the other arty preventing them from instituting a suit or other proceeding in Court B. Of course, while considering the grant of an anti-suit injunction, Court A would take into account as to which of the two Courts is the more convenient forum. However, when a party approaches Court A and the defendants takes up the plea that the Court A is forum non conveniens and that the matter ought to be more appropriately dealt with by Court B, then Court A, invoking principles of forum non conveniens, may refuse to entertain the matter presented to it and direct the parties to approach Court B being the more convenient forum. Thus, it is seen that in case for anti-suit injunction, one Court grants an injunction restraining the parties from approaching another Court. Whereas in case of doctrine of forum non conveniens, the Court before whom the matter is presented, itself refuses to entertain the same and directs the parties to approach the other Court being the more appropriate and convenient forum. It must also be kept in mind that the Court granting an anti-suit injunction must otherwise have jurisdiction over the matter. Similarly, the Court rejecting a matter on the principle of forum non conveniens must otherwise also have jurisdiction to entertain the same. This is so because if the Court in either case does not have jurisdiction then, it cannot deal with the matter and consequently, it can neither grant an anti- suit injunction nor pass an order refusing to hear the matter on the plea of forum non conveniens." 23. In view of the above interpretation of Section 20 of the Code, it cannot be said that the principle of 'forum non conveniens' is alien, barred or prohibited by Section 20 the Code. Section 20 of the Code indicates and specifies the Courts which can have jurisdiction. Principle of 'forum non conveniens' does not confer jurisdiction on a Court contrary to Section 20 of the Code but applies when a Court otherwise has jurisdiction but for valid, sound and good reasons does not wish to entertain a suit. Section 20 of the Code, does not prohibit or bar the principle of 'forum non conveniens'. 7. The term 'forum non conveniens' is a general power to stay actions and not entertain litigation on the ground that some other Court or Forum having jurisdiction is the appropriate Forum for trial of the action. It is applied in the interest of both parties and when the ends of justice require that the cause should be tried in a different Forum. The said principle is generally applied in cases of Private International Law. It requires two stage inquiry. In the first stage, we are concerned whether there is an alternative competent Forum, which is more appropriate and second stage requires answer to the question, whether it is in the interest of justice and equity to relegate the parties to the said Forum [See Chesire and North's Private International Law, 13th Edition, Part III, Chapter 13 at Page 336].

28. The second requirement indicates the discretionary character of the said principle. The principle can be only invoked when the alternative Forum is clearly and distinctly more appropriate than the Forum of which jurisdiction is invoked. The principle has to be rarely invoked and when Court is fully satisfied that the discretion should be exercised. 29. Multiplicity of proceedings and desire to avoid conflicting or confusing judgments is a part of the principle of 'forum non conveniens'. This alone may not be sufficient. The power should not be exercised unless the Court comes to a conclusion that the case can be tried most suitably in the alternative Forum and it is in the interest of all parties, in the ends of justice and there are grounds not to entertain a party. Each case has to be decided on its own circumstances keeping several factors in mind including economic strength of the parties, cost involved, availability of evidence and witnesses, etc. The principle can be applied rarely and with caution, when advantages and interest of justice clearly outweigh proceedings before a Court which in law has jurisdiction but another Court having concurrent jurisdiction is the more 'natural' and the plaintiff has deliberately avoided the said Forum. There should be a clear, real and a distinct disadvantage, to negate right of the plaintiff to decide the Forum or the Court where he wants to institute a suit. No fixed or strait-jacket principle can be laid down but the general objective is to prevent a party from deliberately creating a situation which will cause confusion or conflicting judgments, while keeping in mind that the Court should not lightly change the Forum and compel the plaintiff to go to another Court and increase his inconvenience and expense. Balance of convenience is a material consideration, albeit not always a sole criteria justifying application of the principle of 'forum non conveniens'. However, when the plaintiff abuses his position as arbiter litis to deliberately choose a Forum to defeat ends of justice, then in exceptional circumstances, the Court can exercise the power to ex debito jnstitiae to prevent a proceeding from becoming vexatious or oppressive. 36. The present case, therefore, falls within one of those rare cases where a party has deliberately and intentionally invoked jurisdiction of a Court, which has jurisdiction to entertain a suit under Section 20 of the Code but the interest of justice and equity requires that the plaintiff(s) should be asked to approach the Court where parties are already litigating. The twin conditions for applying the principle of 'forum non conveniens' are satisfied in the present case. Any decision on the advertisement of the defendant will necessarily call for examination and comments on the advertisement of the plaintiff(s), which is subject matter before the Bombay High Court. Any comment or observation in the orders passed by the Delhi High Court will cause confusion, possibility of conflicting decisions, which will cause prejudice to the parties. Interim application for injunction is still pending before Bombay High Court. The present case, therefore, is an exceptional case wherein principle of forum non conveniens should be applied. The plaintiff(s) were aware and have consciously and deliberately invoked jurisdiction of this Court, in view of the litigation and issues pending before the Bombay High Court. 37. It is appropriate to repeat that principle of 'forum non conveniens' can be applied rarely when there are overwhelming facts and interest of justice

requires that a Court that has jurisdiction should not adjudicate the suit/legal proceedings. The said principle is not to be applied liberally but with great caution and care and only when failure to do so, shall result in abuse of process of Court and cause grave injustice. Dr. V. Ravi Chandran v Union of India and Others, R. M. Lodha, Tarun Chatterjee, B. S. Chauhan, 2010 (1) SCC 174 Mayar (H.K.) Limited and Others v Owners and Parties, Vessel M.V. Fortune Express and Others, P. P. Naolekar, RUMA PAL, 2006 (3) SCC 100 Jindal Vijayanagar Steel (JSW Steel Limited ) v Jindal Praxair Oxygen Company Limited, A. R. LAKSHMANAN, L. S. Panta, 2006 (11) SCC 521 Liverpool and London S. P. and I Association v M. V. Sea Success I and Another, S. B. Sinha, V. N. Khare, 2004 (9) SCC 512 Union Carbide Corporation and Others v Union of India and Others, Ranganath Misra, A. M. Ahmadi, M. N. Venkatachaliah, 1991 (4) SCC 584 Nasiruddin v State Transport Appellate Tribunal, A. N. Ray, K. K. Mathew, V. R. Krishna Iyer, Syed M. Fazal Ali, 1975 (2) SCC 671