Sunday, 6 September 2020

Whether principle of forum non conveniens is applicable to civil proceeding filed in India?

During the course of arguments, Mr. Sai Deepak also invokes the principle of forum non conveniens. In his submission, as the defendant, i.e. his client, was based in Hyderabad, and had filed OS 867/2019 prior, in point of time, to the filing of the present suit by the plaintiffs, applying the principle of forum non conveniens, the present suit ought to have been filed in Hyderabad.

43. This submission, of Mr. Sai Deepak, merits rejection, straightaway, as it stands covered by the decision, of a Division Bench of this Court, authored by Sanjay Kishan Kaul, J. (as he then was) in Horlicks Ltd. v. Heinz India (Pvt.) Ltd. MANU/DE/2721/2009 : (2009) 164 DLT 539 (DB) which, after an incisive study of the evaluation of the forum non conveniens doctrine, with all its inflexions, held, authoritatively, that the principle had no application to domestic suits. Paras 78, 86, 88 and 90 of the decision merit reproduction, in extenso, thus:

"78. The aforesaid exposition thus shows that principles while exercising the discretionary jurisdiction under Article 226 of the Constitution of India cannot ipso facto be applied to a civil proceeding governed by the said Code. Not only that, the principle of forum non conveniens emerged as a principle of admiralty law applicable primarily to foreign forums. It finds no place in a domestic forum in India. The plaintiff is always the dominus litis and so long as the Court has jurisdiction to try a suit, a party cannot be non-suited. A suit has to be governed by the provisions of the said Code. In this context, we may refer to the observations made in Abdul Gafur v. State of Uttarakhand, MANU/SC/3415/2008 : (2008) 10 SCC 97, where the Supreme Court held that since Section 9 of the said Code provides that a civil Court shall have jurisdiction to try all suits of civil nature excepting the suits of which their cognizance is either expressly or impliedly barred, the civil Courts have inherent jurisdiction unless a part of that jurisdiction is carved out. Thus, the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute. It was further observed that a plaint can only be rejected in terms of Order 7 Rule 11 of the said Code and similarly a plea of bar to jurisdiction of a civil Court can be examined.
90. We thus hold that the principle of forum non conveniens has no application to domestic forums in India which are governed by the said Code."

(Emphasis supplied).

IN THE HIGH COURT OF DELHI

I.As. 2594, 2595, 2596, 4274 and 5209/2020 in CS (COMM.) 611/2019

Decided On: 15.07.2020

FMC Corporation  Vs. NATCO Pharma Limited

Hon'ble Judges/Coram:
C. Hari Shankar, J.


Citation: MANU/DE/1380/2020.
Read full Judgment here: Click here
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