Bhaskar Bhattacharya, J. - (1.) THIS appeal under Clause 15 of the Letters Patent is at the instance of a plaintiff and is directed against an order dated January 31, 2011 passed by a learned Single Judge of this Court by which the said learned Judge has dismissed an application for injunction for restraining the respondent from initiating or proceeding with any legal proceeding in any Court in Illinois or any other place in the United States of America or in any forum other than that of the learned Single Judge.
(2.) BEING dissatisfied, the plaintiff has come up with the present appeal. The appellant before us filed in the Original Side of this Court a Civil Suit being No.10 of 2011 thereby praying for the following reliefs: a) "Decree for US$ 12,22,125.00 against the defendant as pleaded in paragraph 22 above; b) In the alternative, an enquiry into the damages suffered by the plaintiff caused by the defendant's breach and appropriate decree for such sum as may be deemed to be found due and payable upon such enquiry; c) Perpetual injunction restraining the defendant, its servants, agents and/or assigns from initiating and/or in any manner proceeding with any legal proceeding before any of the Courts in Illinois or in any other place in the United States of America or any forum other than this Hon'ble Court; d) Receiver; e) Injunction; f) Attachment; g) Costs and; h) Such further and/or other relief or reliefs as this Hon'ble Court may deem fit and proper." The case made out by the plaintiff in the said suit may be summed up thus: 1) At all material times, the plaintiff was and still is engaged, inter alia, in the manufacture, sale and repair of locomotive traction motors, spare parts and other ancillary commodities. The plaintiff has its registered office at 105, Park Street, Kolkata 700 016 within the jurisdiction of this Court and has its workshop and factory at no.1, Oil Installation Road, Kolkata 700 088 where it manufactures and repairs locomotive traction motors, spare parts, etc., as per the requirement of its customers. 2) The defendant is a closely held company incorporated under the laws of the United States of America and is engaged, inter alia, in manufacture, re- conditioning and sale of vertically integrated locomotive products. The defendant has its place of business and carries on business in the State of Illinois in the United States of America outside the aforesaid jurisdiction. 3) In or about the month of April 2008, the plaintiff was approached at its registered office at Kolkata within the aforesaid jurisdiction by one Mr. V. K. Pal, claiming to be the representative of the defendant, along with one Mr. Will Burrows, Vice President, International Operation and Project, and some other officials of the defendant with a view to purchase, inter alia, D- 78 traction motors. In the course of discussions, the aforesaid representatives of the defendant expressed their desire to inspect the plaintiff's workshop and factory at no.1, Oil Installation Road, Kolkata 700 088, outside the aforesaid jurisdiction in order to assess the capacity and capability of the plaintiff to manufacture those items. The plaintiff's Deputy Managing Director, Mr. S. R. Acharyulu, accompanied the said representatives of the defendant and took them around the workshop and the factory of the plaintiff. On inspection of the said factory and workshop, the defendant's said representatives expressed their satisfaction as to the plaintiff's facilities and their intention to have business relationship with the plaintiff. 4) After the defendant was satisfied with the capability of the plaintiff to supply the said required motors, in or about early part of the month of June 2008, the plaintiff made its offer to sell and supply traction motors meant for locomotives as per the necessary general arrangement, drawings and technical specifications prepared by the plaintiff for the said motors. The said offer was made to the defendant through the said Mr. V.K. Pal at the plaintiff's registered office within the aforesaid jurisdiction. The defendant received the said offer, accepted the technical specifications supplied by the plaintiff and never raised any objection with regard to the said drawings prepared and submitted by the plaintiff. 5) Thereafter, between June 2008 and September 2008, protracted negotiations and discussions took place between the plaintiff and the defendant through the respective representatives of the parties, either at the workshop and factory of the plaintiff or at the registered office of the plaintiff. In all such discussions, the said Mr. V. K. Pal, represented the defendant and the Managing Director and/or the Deputy Managing Director of the plaintiff represented the plaintiff. 6) In course of the aforesaid negotiations, there had been exchange of a series of e-mails between the plaintiff and the defendant through the said Mr. V. K. Pal during the period from April 2008 till the finalization of the said Agreement as stated herein below. 7) By an e-mail dated May 02, 2008, the plaintiff forwarded to Mr. V. K. Pal the technical details of D78 traction motors, consisting of Technical Specifications, Outline Drawings, General Arrangement and Armature Coil Drawing. By an e-mail dated June 11, 2008, the defendant through Mr. V. K. Pal sent to the plaintiff an order for 50 nos. of D78 motors and informed that the order for 8 nos. of D87 motors will shortly be forwarded. The pricing basis for both, D78 and D87 motors, was also made known to the plaintiff. By the said e-mail dated June 11, 2008, a purchase order without the detailed terms and conditions was forwarded by the defendant and the plaintiff was informed that the other documents attached to the purchased order would be forwarded later. The defendant, subsequently, through Mr. V. K. Pal forwarded various other documents by e-mail dated June 11, 2008. The same included armature coil drawings, general arrangement drawings, technical specifications and general purchase order terms (standard purchase order terms). 8) On the same day, i.e., June 11, 2008 the plaintiff communicated to Mr. V. K. Pal that the terms in the draft Purchase Order were not acceptable. By an e-mail dated July 04, 2008, Mr. V. K. Pal forwarded to the plaintiff a modified Purchase Order no.VSA001 dated May 09, 2008 for 36 D78B traction motors. Again, Mr. V. K. Pal through an e-mail dated July 09, 2008 forwarded a further Purchase Order no.VSA300 dated May 09, 2008 for 14 numbers of D78B traction motors. Subsequently, Purchase Order no.VSA001 was again revised and was forwarded through an e-mail dated August 30, 2008 to the plaintiff at its aforesaid registered office in Kolkata, within the aforesaid jurisdiction. It is stated that at no point in time, the terms and conditions of the draft Purchase Orders were acceptable to the plaintiff. In fact, the agreement ultimately concluded, as more fully stated herein, contained terms and conditions which were materially different from those contained in the draft purchase order and the standard purchase order terms initially forwarded by the defendant were not even considered appropriate or applicable. In fact, various terms and/or conditions and/or stipulations therein were not considered and/or were specifically excluded in arriving at the agreement. 9) The terms and conditions which were ultimately finalized between the parties upon protracted negotiations are contained in an Agreement dated October 01, 2008 in writing made between the plaintiff and the defendant (hereinafter referred to as "the said Agreement"). 10) The said Agreement dated October 01, 2008, was accepted, concluded and signed by the plaintiff at the plaintiff's registered office within the aforesaid jurisdiction. The said agreement, inter alia, stipulated as follows : "16.3 Entire Agreement. This Agreement constitutes the entire agreement and supersede all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter thereof." Accordingly, all the prior agreements and understandings between the parties including the Standard Purchase Order Terms have been superseded, altered, rescinded and novated by the said Agreement. 11) In view of the urgency expressed by the defendant, the plaintiff had already commenced work on preparation of the said motors for type-testing and two motors were checked, inspected and their performance type-tested and approved by Mr. Will Burrows of the defendant at the factory and works of the plaintiff in Kolkata. The same were also found to be in conformity with the plaintiff's drawings which were approved by the defendant. The defendant, through its representative Mr. Will Burrows, witnessed the type testing at the plaintiff's said works and factory in Kolkata outside the aforesaid jurisdiction and was fully satisfied with regard to the merchantable quality and satisfactory performance of the said traction motors as also the manufacturing facility of the plaintiff. 12) Only upon such approval being given by the defendant, the plaintiff undertook manufacture of the balance quantity of the said motors. The goods shipped by the plaintiff, corresponded with the motors which had been tested and approved of by the defendant and were free of defect. 13) Thereafter, in terms of the said agreement, the plaintiff made the following shipments FOB Kolkata to the defendant: Sl.No. Invoice No. Bill of Lading/Air Way Bill Quantity of No. & Date motors 1. EXP-032/08-09 ARK/KOL/F/CHI/8115 6 Nos. dt. 19/11/08 dt. 11/12/08 2. EXP-034/08-09 ARK/KOL/F/MEM/8183 4 Nos. dt. 23/12/08 dt. 30/12/08 3. EXP-035/08-09 ARK/KOL/MEM/8239 10 Nos. dt. 31/12/08 dt. 16/01/09 4. EXP-045/08-09 MAWB No. 36553 dt.13/03/09 10 Nos. dt. 27/02/09 5. EXP-047/08-09 MAWB No. 1608736571 10 Nos. dt. 20/03/09 dt. 27/03/09 6. REPL/EXP-11/09-10 MAWB No. 125-4380 4751 6 Nos. dt. 15/5/09 dt. 23/5/09 7. REPL/EXP-12A/09-10 MAWB No. 125-4381 2742 4 Nos. dt.29/5/09 dt.3/6/09 50 Nos. 14) The defendant made the following payments to the plaintiff in respect of the above shipments: Sl.No. Invoice No. Contractual Amount Value in USD Received in USD 1. EXP-032/08-09 dt. 19/11/08 171,000 171,000 2. EXP-034/08-09 dt. 23/12/08 114,000 114,000 3. EXP-035/08-09 dt. 31/12/08 285,000 285,000 4. EXP-045/08-09 dt. 27/02/09 285,000 285,000 5. EXP-047/08-09 dt. 20/03/09 285,000 285,000 6. REPL/EXP-11/09-10 dt. 15/5/09 171,000 171,000 7. REPL/EXP-12A/09-10 dt.29/5/09 1,14,000 60,000 1,425,000 1,371,000 The aforesaid payments were all received by the plaintiff through its bankers, namely, the State Bank of India, Overseas Branch, Samriddhi Bhawan, 1, Strand Road, Kolkata- 700 001 situated within the aforesaid jurisdiction. 15) When the supply of the motors was substantially in progress, the defendant raised a dispute with regard to the acceptability of the Axle Caps attached to the said motors. The said representative of the defendant, Mr. V. K. Pal, alleged that the Axle Caps fitted to the motors having been found to be defective, the same were dismantled from the locomotives and that after removing the old Axle Caps, the locomotives were re-fixed with new locally sourced Axle Caps. It was further alleged that the defendant got the new Axle Caps sourced from local vendors which were being fixed for the purpose of completing the locomotives. In doing so, the defendant unconditionally accepted the said goods. Thereafter, correspondence ensued between the plaintiff and the defendant with regard to rebate/deduction that should be given by the plaintiff to the defendant in respect of the alleged defective Axle Caps. 16) Ultimately, towards the end of April 2009, it was, inter alia, agreed by and between the plaintiff and the defendant that as against the alleged cost of repair, renewal and replacement aggregating USD 2,30,000.00 the defendant would absorb 25 per cent of such cost and that the plaintiff would grant a deduction/rebate of USD 54,000.00 in respect of the last of its invoices referred to hereinabove, namely, REPL/EXP-12A/09-10 dated May 29, 2009 and that a further sum of USD 25,000.00 would also be paid by the plaintiff on behalf of the defendant to Messrs Logistics Plus India Private Limited, the freight agent of the defendant towards compensation for the alleged loss stated to have been suffered by the defendant due to the allegedly defective Axle Caps. Additionally, a sum of USD 1,00,000.00 would be adjusted against future orders to be placed by the defendant at the rate of 10 per cent of each order value. The plaintiff accepted the said proposal from its registered office within the aforesaid jurisdiction and also implemented the same from its said place of business within the aforesaid jurisdiction. 17) In spite of the fact that the representative of the defendant duly inspected the aforesaid goods prior to shipment, the defendant wrongfully and illegally raised alleged disputes in respect of the Axle Caps and Axle Bore in respect of the goods supplied by the plaintiff. However, in view of the fact that the said Agreement was valid for a period of three years and that further orders were contemplated under the said Agreement, the plaintiff in the honest and bona fide belief and with a view to keeping amicable business relations on a continuing basis was induced to giving credit for an approximate sum of USD 79,000.00 towards the alleged repairs and replacements carried out by the defendant outside the jurisdiction aforesaid. The adjustment of USD 79,000.00 was unequivocally and unconditionally accepted by the defendant without any objection and/or demur. In acting as aforesaid, the defendant unequivocally agreed and accepted that no further claim would be made in respect of the said supplies made by the plaintiff, save and except by way of the agreed adjustment against future orders to be placed by the defendant. The defendant had in any event waived its right to claim any compensation of any nature save and except by way of the agreed adjustment against future supplies to be made by the plaintiff against future orders to be placed by the defendant. 18) After having received the aforesaid payments and/or adjustments aggregating to approximately USD 79,000.00, the defendant by letters dated August 25, 2009 and October 2, 2009 respectively sought to raise further disputes as an afterthought and attempted to reopen a closed chapter with a view to avoid its commitments for placing further orders. Various false and untenable allegations were made by the defendant, inter alia, by contending that the plaintiff was in breach of the said agreement. No such claim is tenable in view of the adjustment and/or credit afforded to the defendant by the plaintiff as mentioned hereinbefore. The said letters of the defendant were replied to by the plaintiff on October 12, 2009 denying the allegations made by the defendant. The defendant however continued with its false and untenable allegations by its letter dated December 10, 2009. In any event, the contents of the letters issued for and on behalf of the defendant were false, frivolous and wholly motivated. 19) Though the defendant was acting wrongfully and in violation of its commitments, the plaintiff with a view to continuing the business relationship, sought to accommodate the defendant and prolonged discussions were held between January, 2010 and June, 2010. However, such negotiations did not result in any mutually acceptable solution as the defendant, inter alia, sought to change the very basis of the said Agreement by insisting on 100 per cent compliance with OEM D-78. Significantly, as will be evident from an e-mail dated March 18, 2010, the defendant deliberately, intentionally and fraudulently denied the plaintiff any access to the motors for the purposes of inspection. 20) By a notice dated October 28, 2010 issued for and on behalf of the defendant, the defendant wrongfully, illegally and fraudulently terminated the said Agreement dated October 15, 2008 and threatened the plaintiff with legal action. The plaintiff was compelled to accept the said breach and treat the said Agreement as repudiated. The claims made in the said letter dated October 28, 2010 including those on account of alleged defects and breach of warranty are wrongful, illegal, misconceived, fraudulent, null and void. In any event, the same became voidable at the instance of the plaintiff and the plaintiff has duly avoided and/or hereby avoids the same. 21) By letters dated November 20, 2010 and December 21, 2010, the plaintiff through its Advocates duly replied to the notice dated October 28, 2010 and refuted and categorically denied the allegations contained therein. 22) In acting as aforesaid, the defendant in connivance with various other persons and/or its agents intentionally made misrepresentations to the plaintiff and induced the plaintiff to enter into the said Agreement and thereby acted wrongfully, illegally and fraudulently particulars whereof are set out herein below: a) The defendant at all material times was fully aware of the fact that the plaintiff is not an Original Equipment Manufacturer ("OEM") and that the motors supplied by the plaintiff were based on the drawings which had been duly examined, approved, concurred to and accepted by the defendant. Accordingly, the subsequent demands by the defendant for OEM compliance were not only contrary to the said Agreement but also ex facie, unlawful and illegal. b) The defendant having wrongfully induced the plaintiff to agree to its proposal mentioned hereinbefore and to make payment of USD 79,000.00 approximately on account of rectification of alleged defaults was not entitled to turn around and make the same the basis of the termination, particularly when the motors had been admittedly opened and damaged by the defendant itself in trying to bring the same to OEM/EMD standards which was never agreed upon between the parties herein. Significantly, the warranty obligations of the plaintiff under the said Agreement had also lapsed in these circumstances. c) The defendant made suggestions that it would place further orders in excess of US 1 million dollars not believing the same to be true so as to induce the plaintiff to enter into the contract more fully mentioned hereinabove. d) The defendant with the intent to deceive and/or defraud the plaintiff made suggestions and/or representations which were not true and not believed by it to be true. In fact, it will be evident from the letter dated October 28, 2010 that the sole and mala fide intention of the defendant was to defraud and deceive the plaintiff. e) The purposed letter of termination dated October 28, 2010 issued for and on behalf of the defendant is in breach of the said Agreement and in violation of the terms thereof. f) The purposed letter of termination dated October 28, 2010 is ex facie in breach of the said Agreement and in violation of the terms and conditions thereof. The defendant wrongfully caused the said letter to be issued in order to conceal its acts of repudiation of the said Agreement, and in order to shift the burden of its obligations on the plaintiff. g) The purported letter of termination dated October 28, 2010 is fraudulent inasmuch as it is silent on the fact of the defendant having received USD 79,000.00 and/or having adjusted the same. h) The defendant has acted in breach of its obligations to the plaintiff by misleading and/or prejudicing the rights of the plaintiff. i) The unlawful and illegal threats by the defendant to initiate proceedings before the Courts at Illinois or any other Court in the USA as contained, inter alia, in the said letter dated October 28, 2010, is ex facie unlawful, mala fide and fraudulent, illegal, null and void. j) The defendant has committed diverse other acts fitted to deceive the plaintiff and has otherwise acted fraudulently. k) The defendant actively concealed the fact that it had no intention of purchasing further motors from the plaintiff. l) The defendant made promises of settling the matter on various adjustments being made without any intention of performing the same. The plaintiff is unable to give fuller and further particulars of fraud until full disclosure is made by the respondent. All such wrongful acts have been perpetrated by the defendant both within the outside the jurisdiction aforesaid. The aforesaid wrongful and fraudulent acts of the defendant are actionable both under the laws of India as also that of Illinois. 23) In the light of the wrongful, illegal and fraudulent actions on the part of the defendant as detailed hereinabove, the plaintiff has suffered loss and damages at its registered office within the jurisdiction aforesaid, particulars whereof are given herein below: Sl. Particulars Amount Amount (USD) No (USD) . (i) Cost of preparation of drawings; developing special purpose equipment; manufacturing tools, inspection, Quality Assurance Programme, jigs and fixtures as per the following details : Manufacturing information, component drawings, sub-assembly drawings and 38,325.00 assembly drawings Preparation of special purpose jigs, fixtures, gauges, etc. 1,11,500.00 9,600.00 Preparation of Technical Specifications Preparation of Quality Assurance 4,800.00 Programme 7,200.00 Preparation of Shop Floor Inspection Special purpose equipment installed exclusively for D78/D87 project of the 2,00,000.00 defendant. Cost incurred because of the failure of the defendant to furnish technical information, drawing, sample, critical items dimension and drawings from different sources for which the plaintiff 5,200.00 had to make payments. Shop floor rearrangement done exclusively for the manufacture of 75,500.00 4,52,125.00 D78/D87 project of the defendant. (ii) Compensation for failure of the defendant to place additional orders of D-78 and D- 87B traction motors as contemplated and 4,90,000.00 projected in the aforesaid Agreement. (iii) Compensation for failure to place orders 2,10,000.00 for D31 traction motors. Loss of business opportunities relating to (iv) North and South America (excepting Argentina) arising out of the exclusivity 70,000.00 clause in the said agreement. Total 12,22,125.00 24) The plaintiff has now come to learn that the said Mr. V. K. Pal who had at all material times been acting as a representative of the defendant, has recently been permanently employed by the defendant. In any event, the defendant has a significant presence in India which would be evidenced inter alia from the fact that the defendant has an Indian subsidiary namely NREC Railway Equipment India Private Limited having its registered office and carrying on business in New Delhi, India. The plaintiff has come to learn that the said Mr. V. K. Pal, who all throughout acted as the representative of the defendant, has now been appointed as one of the directors of the said Indian subsidiary of the defendant and is at present posted in India and is looking after the defendant's business in India. 25) The defendant is wrongfully and illegally threatening and intends to initiate proceedings against the plaintiff before the appropriate Courts of Illinois, USA. Accordingly, there is every possibility of the defendant indulging in multiplicity of proceedings and in abuse of process. The initiation of any such proceedings by the defendant would be vexatious, harassing, oppressive, fraudulent and mala fide. 26) The plaintiff has no office outside India and has no representation whatsoever in the United States of America. This fact is well known to the defendant. The defendant on the other hand is carrying on business both within the United States of America and in India. It is well known that this Hon'ble Court would be pleased to take judicial notice of the fact that it would be inequitable, extremely inconvenient and prohibitively expensive for the plaintiff to conduct litigation in the United States of America particularly in the facts and circumstances of the case and also be a drain on the foreign exchange reserves of the country. 27) The plaintiff apprehends that the sole and mala fide intention of the defendant is to cause harassment and financial loss to the plaintiff. Any proceeding initiated by the defendant in the State or Federal Courts in USA or in the State of Illinois, USA or elsewhere in USA, would be highly vexatious and exorbitantly costly. In fact, counsel fees itself would be approximately USD 450.00 to 600.00 (approximately Rs.20,000/- to Rs.27,000/-) per hour. Apart from this, all the plaintiff's witnesses and evidence are all situated in Kolkata within the jurisdiction of this Hon'ble Court and this Hon'ble Court is the natural forum to maintain the instant suit. The balance of convenience warrants adjudication of disputes between the parties in India. Both the plaintiff and the defendant can be represented before this Hon'ble Court. The dealings and transactions between the parties took place primarily at Kolkata at and from the registered office of the plaintiff situated within the jurisdiction aforesaid as also from the plaintiff's works and factory at 1, Oil Installation Road also at Kolkata outside the jurisdiction aforesaid. In the course of negotiations, discussions and transactions between the parties concerning the said Agreement, the representatives of the defendant including the said Mr. V. K. Pal and Mr. Will Burrows had visited Kolkata, in particular the registered office and the works and factory of the plaintiff on numerous occasions. As against the aforesaid, none of the plaintiff's employees and/or directors and/or agents had ever visited Illinois in connection with the contract during its formation or its implementation, except on one occasion for reconciliation attempts after these disputes had arisen. All correspondence relating to the said Agreement was by and between the plaintiff and the defendant at the plaintiff's registered office at Kolkata situated within the aforesaid jurisdiction or its factory and works at Kolkata outside the jurisdiction aforesaid. 28) There is no clause in the said Agreement by which the parties conferred exclusive or non-exclusive jurisdiction on Courts in any particular country, whether in India or Illinois in the USA. Significantly, the clause with regard to the choice of forum mentioned in the standard terms and conditions initially forwarded by the defendant purporting to confer jurisdiction on Courts in Illinois to hear, mediate or litigate the disputes has been consciously and expressly excluded from the said Agreement, wherein the parties have only agreed that the same shall be construed and interpreted in accordance with the laws of the State of Illinois. In any event, there would also be no issue with this Hon'ble Court applying the laws of Illinois in respect of the subject matter of the dispute. 29) This Court is the natural forum for deciding the disputes between the parties particularly because Kolkata, having more than substantial connection with the cause of action in this suit, it would be more convenient for this Hon'ble Court to adjudicate the instant suit. This Hon'ble Court is the convenient forum considering all relevant factors and the interest of the parties both under Indian law as well as the laws of Illinois. 30) The defendant is invading and/or threatening to invade the valuable rights of the plaintiff by initiating and/or threatening to initiate proceedings in the United States of America. The invasion is such that compensation in money will not afford adequate relief. Such invasion has in any event taken place at the plaintiff's registered office within the aforesaid jurisdiction. 31) Inasmuch as a part of the cause of action has arisen within the jurisdiction of this Hon'ble Court and a part of the cause of action has arisen outside the jurisdiction of this Hon'ble Court, the plaintiff is entitled to get leave under Clause 12 of the Letters Patent to entertain, try and determine the present suit. After filing of the aforesaid suit, on the basis of the aforesaid allegations made in the plaint, the plaintiff came up with an application for injunction praying for restraining the defendant, its servants, agents and/or assigns from initiating and/or in any manner proceeding with any legal proceeding before any of the Courts in Illinois or in any other place in the United States of America or in any forum other than the learned Trial Judge.
(3.) THE learned Single Judge, by the order impugned in this appeal, dismissed the said application even without issuing any notice upon the respondent and thereby holding that 1) the primary requirement of obtaining an order of anti-suit injunction has not been proved by the plaintiff; 2) the parties having agreed to be governed by the laws of Illinois, even though there may not be any forum selection clause, having regard to the rule of comity, the court was not inclined to grant a blanket order of injunction for such an order would in effect "amount to interference under exercise of jurisdiction by a foreign court"; 3) when two parties to a contract belong to two different countries and proceedings are initiated in the country of origin of one of the parties to the contract, it could not be said the proceedings were initiated in a forum of non-convenience, if the forum is otherwise competent; 4) at any rate, anti-suit injunction should be granted in very rare and exceptional cases and not for the mere asking; 5) the refusal of injunction as prayed for would not defeat the ends of justice or perpetrate injustice; on the other hand, the grant of injunction would violate the rule comity. The learned Single Jude, however, observed that the said order would not prevent the plaintiff from filing an application in future should any suit be filed by the defendant.;