Prima facie, I am in agreement with the above observations. A party having funded the litigation for a gain in the result thereof, cannot escape its liability in case the result is contrary to its expectation. A balance would have to be struck between a need to ensure the access to justice through this funding arrangement and the cost that the defendant would bear in case such litigation fails and is found to be completely meritless, as in the present case. The defendant cannot be left high and dry and be made to bear its own cost for the purposes of defending a litigation, which was found without any merit and which may not have been initiated against such party but for the funding by the third party. In fact, prima facie, the costs which have been levied by the Arbitral Award would become the cost which will
be covered by the Bespoke Agreement itself, as these are costs of
litigation of respondent nos.1 to 4 herein. {Para 17}
18. The fact that the Bespoke Agreement states that it shall stand
terminated in case the claim is not successful, can also, prima facie,
not affect the right of the petitioner inasmuch as the said agreement
would continue till the passing of the Arbitral Award and the costs arepart of the Arbitral Award. Thereafter, the petitioner is only seeking to enforce the Arbitral Award in terms of the Bespoke Agreement.
IN THE HIGH COURT OF DELHI AT NEW DELHI
O.M.P.(I) (COMM.) 71/2023
SBS HOLDING INC Vs ANANT KUMAR CHOUDHARY & ORS.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
Dated: 07.03.2023
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