volume 2 : issue 9 || july 2021 || email: editor
TRANSCRIPT
2
DISCLAIMER
No part of this publication may be reproduced or copied in any form by any means
without prior written permission of Editor-in-chief of White Black Legal – The
Law Journal. The Editorial Team of White Black Legal holds the copyright to all
articles contributed to this publication. The views expressed in this publication are
purely personal opinions of the authors and do not reflect the views of the
Editorial Team of White Black Legal. Though all efforts are made to ensure the
accuracy and correctness of the information published, White Black Legal shall
not be responsible for any errors caused due to oversight or otherwise.
3
EDITORIAL TEAM
EDITOR IN CHIEF
Name - Mr. Varun Agrawal
Consultant || SUMEG FINANCIAL SERVICES PVT.LTD.
Phone - +91-9990670288
Email - [email protected]
EDITOR
Name - Mr. Anand Agrawal
Consultant|| SUMEG FINANCIAL SERVICES PVT.LTD.
EDITOR (HONORARY)
Name - Smt Surbhi Mittal
Manager || PSU
EDITOR(HONORARY)
Name - Mr Praveen Mittal
Consultant || United Health Group MNC
EDITOR
Name - Smt Sweety Jain
Consultant||SUMEG FINANCIAL SERVICES PVT.LTD.
EDITOR
Name - Mr. Siddharth Dhawan
Core Team Member || Legal Education Awareness Foundation
4
ABOUT US
WHITE BLACK LEGAL is an open access, peer-reviewed and refereed
journal provide dedicated to express views on topical legal issues,
thereby generating a cross current of ideas on emerging matters. This
platform shall also ignite the initiative and desire of young law students
to contribute in the field of law. The erudite response of legal luminaries
shall be solicited to enable readers to explore challenges that lie before
law makers, lawyers and the society at large, in the event of the ever
changing social, economic and technological scenario.
With this thought, we hereby present to you
WHITE BLACK LEGAL: THE LAW JOURNAL
5
Problems Associated with Injunctions and Ex – Parte Interim Orders and the plausible
solutions from Canadian Jurisdiction.
By : Pranaya Sahay, 2nd year law student at Jindal Global Law School
Abstract
I’ll begin this paper by explaining what ‘Injunction’ and specifically ‘Ex – parte interim
order’ mean and will locate it in the Indian statute of Civil Procedure Code 1908
(hereinafter CPC, 1908). In the second part of the paper, I’d analyse the concept of Ex –
parte interim orders through the ‘Vodafone BIT Arbitration Case’ and would further
elucidate upon the different problems associated with such orders. Finally, in the last part
of the paper, I’ll attempt to bring forth the plausible solutions from the jurisdiction of
Canada. The major crux of this paper is to find out a way in which Ex – parte interim
orders can be passed without disrupting the status quo or doing injustice to either party.
Interim orders and Injunctions:
Both Interim order and Injunctions are stay orders. An interim order is a temporary order
which is given so as to preserve the rights, assets and status quo of the applying party until
the court reaches its final decision on a particular case.1 An order of injunction on the other
hand is a judicial process whereby a party seeks to refrain someone from doing something or
seeks a direction from a court to direct a person to perform a certain act. 2
1Rachit Garg, Injunctions under CPC and arbitration, https://blog.ipleaders.in/injunctions-under-cpc- and-
arbitration/ (April 28, 2021, 05:23 am)
6
2Hardinge Stanley Giffard Halsbury, Halsbury’s Law of England (4th edn. 2006
7
Temporary Injunctions under Civil Procedure Code, 1908
As per Section 94 of CPC, 1908, Indian Courts have the right to grant temporary
injunction for the pursuance of justice and the courts have to give the relief as per the rules
prescribed under Order 39. Order 39 Rule (1) and (2) talk about the grant of temporary
injunctions and wrt to this, the case M. Gurudas and Ors. Vs. Rasaranjan and Ors.3 laid
down the three ingredients namely – ‘prima facie’, ‘balance of convenience’ and
‘irreparable injury’ that are necessary to grant a temporary
injunctive relief.
What is an Ex – Parte Interim Order?
Rule 3 of Order 39 talks about the fact that a notice is to be given to the other party against
whom a stay order is being sought. However, under certain circumstances a notice may not be
granted to the other party and a court can grant an injunction without intimating the other
party. This is called an Ex – parte ad interim order. However, in such circumstances the court
has to give its reason as to why delaying in granting an injunction would defeat the purpose
of justice. Further, the court as per Rule 3A also has to dispose of the application within 30
days from the date on which the injunction was granted, in situations when a notice of
intimation was not sent to the other party. In a way, an ex-parte injunction order is an
exception 4 to the legal maxim ‘audi alteram partem’ which means that an opportunity of
being heard should be given to all.
If in a case proceeding, an Ex – parte interim relief is given, there are certain rules and
practice directions which are important to be carried out. After one gets an Ex – parte
interim order, the applying party has to immediately inform the opposite party that such
an injunction has been granted against that opposite party. The party seeking the relief also
has to supply a copy of the plaint and other documents on record.5 That aside, the
applying party is mandated to file a compliance report under an oath, through an
affidavit.6
3M. Gurudas and Ors. v. Rasaranjan and Ors., AIR 2006 SC 3275
4Niharika Sanadhya, Ex – Parte Interim Orders: Ex – Parte Relief
https://www.mondaq.com/india/reporting-and-compliance/943086/ex-parte-interim-orders-ex- parte-
relief#:~:text=India%3A%20Ex%20Parte%20Interim%20Orders%3A%20Ex%20Parte%20Relief&text=
Order%20XXXIX%20Rule%203A%20%2C%20CPC,the%20statute%20is%2030%20days. (April 30, 2021,
01:19 pm).
5Yash Kapadia, Injunctions under CPC and arbitration, https://blog.ipleaders.in/injunctions-under- cpc-
and-arbitration/ (May 1, 2021, 01:00 pm).
8
6id.
9
Let’s understand the application of an Ex-parte interim order by discussing the Vodafone
BIT Arbitration Case of 2017. In 2017, there was a tax dispute between India and the
Vodafone wherein India secured an Ex –parte ad interim order against the Vodafone
group. The injunction restrained the continuation of one of two Bilateral Investment
Treaty arbitration proceedings initiated against India by the Vodafone group.7
In this case what had happened was in 2014, Vodafone International Holdings B.V.
(Dutch BV) initiated arbitration proceedings (the First Arbitration) under the India-
Netherlands Bilateral Investment Promotion and Protection Agreement (India-
Netherlands BIPA). There arose a dispute as India imposed a tax liability on Dutch BV for
its alleged failure to deduct tax in relation to the indirect acquisition of an Indian
company by the Dutch BV. Subsequently, in January 2017, the Vodafone Entities, as
parent companies of the Dutch BV, initiated separate arbitration proceedings (the second
arbitration) in relation to the same dispute under the India-United Kingdom Bilateral
Investment Promotion and Protection Agreement (India-UK BIPA).
In response, India filed a civil suit against the Vodafone Entities seeking declaratory and
injunctive reliefs in relation to the second arbitration and asserted that the second arbitration
constituted an abuse of law.
The court granted an Ex – parte ad interim injunction restraining the Vodafone Entities from
pursuing the second arbitration. It relied on the case Modi Entertainment Network v. WSG
Cricket Pte. Ltd 8 and concluded that the principles of Indian law applicable to anti-suit
injunctions were also applicable to anti-arbitration injunctions. Thus, an arbitration could be
restrained by an injunction if it was oppressive in nature. The court came to a conclusion that
there was a duplication of parties and reliefs in the two-bit arbitration proceedings and that
India was the natural forum to resolve the disputes raised by the Vodafone Entities. Further,
the Vodafone Entities and the Dutch BV constituted one economic entity with common
management and shareholders and that the filing of two-bit arbitration proceedings in such
circumstances was an abuse of the process of law, since it created a risk of parallel
proceedings and conflicting decisions. Thus, the court held that it was inequitable and unjust
to permit the Vodafone Entities to prosecute the second arbitration.
7Ashutosh Kumar, AnchayilKumar and Anjali Anchayil, India Secures Ex-parte Ad-interim Injunction
Restraining Vodafone BIT Arbitration,
http://arbitrationblog.kluwerarbitration.com/2017/09/20/india-secures-ex-parte-ad-interim- injunction-
restraining-vodafone-bit-arbitration/ (May 4, 2021, 6:30 pm).
8 Modi Entertainment Network v. WSG Cricket Pte. Ltd., (2003) 4 SCC 341)
10
Analysis of the case from CPC’s point of view:
The court recognised the overlap between the two-BIT arbitration proceedings and
granted an injunction as otherwise this would have resulted in abuse of the process of law.
However, the decision has certain procedural and analytical gap.
First is the lack of urgency in justifying the ex – parte order:
CPC, 1908 clearly states that recourse to an ex - parte injunction is permissible only “where it
appears that the object of granting the injunction would be defeated by delay”.9 That apart, as
noted before, a court granting an ex - parte injunction has to record the reasons for granting
the same. But from a reading of the decision in this case, it appears that no circumstances
were cited by India to satisfy the above condition and the court did not mention any reasons
while giving the injunction. Moreover, the Second Arbitration did not progress beyond the
appointment of arbitrators and thus there was no real urgency to grant an ex – parte order.
Second problem is that appropriate forum for seeking relief:
I feel the appropriate forum for relief wrt the BIT arbitration would be an arbitral tribunal.
That apart, by permitting the arbitral tribunal to decide this issue, the court would have given
due consideration to the principle of kompetenz-kompetenz. Accordingly, before granting an
Ex-parte ad interim injunction, the court should have considered whether India should be
directed to move an application before the arbitral tribunal in the second arbitration to seek
an appropriate order declining jurisdiction. However, the decision of the court shows that
this issue was not given any regard. In my opinion, while the jurisdiction of the court to
grant an injunction is not under question, the court disregarded the more appropriate forum
for relief and the kompetenz-kompetenz principle. Therefore, there exists an analytical
lacuna.
Third problem is the incorrect reliance of the application of principles applicable to anti-suit
injunctions
The court granted an Ex – parte ad interim injunction by relying on the case Modi
Entertainment Network v. WSG Cricket Pte. Ltd. 10 and applied the principle of Indian law
applicable to anti-suit injunctions. However, the application of this principle in the
context of anti-arbitration injunctions was rejected in McDonald’s India Private
9Civil Procedure Code, 1908 , Order 39, Rule 3
11
10Modi Entertainment Network v. WSG Cricket Pte. Ltd., (2003) 4 SCC 341)
12
Limited v. Vikram Bakshi,11 which is binding precedent for the court. Therefore, the court
applied an incorrect principle to decide the grant of the ex – parte ad interim injunction.
Thus, while concluding this, I’d like to say that though, the ex - parte ad interim
injunction was beneficial to India, it suffers from major procedural lacunae and is
susceptible to being challenged.
Problem associated with Ex parte ad interim order
I. Gross injustice faced by the opposite party:
It is very well - noted that a defendant has to face many roadblocks in order to get
an Ex parte injunction vacated. One major problem with the lack of vacation of an Ex
– parte interim injunction is that often the plaintiff party tend to employ delaying
tactics, thereby paralyzing the defendants and eventually leading them to succumb
to inequitable negotiations.12
There have been numerous cases wherein ex parte interim orders have been granted
for indefinite periods without restricting 13 it to a time-limit. The Apex Court in
Ramrameshwari Devi & Ors v. Nirmala Devi & Ors 14 advised to limit the life of the
ex parte order to 7 days instead of 30, so as to nullify the possibility of plaintiffs
benefitting from the continuation of ex parte orders beyond their sell-by date. 15
Unfortunately, the same has never been followed or even referenced in most ex
parte injunction cases.16
II. Lack of notice:
The Apex Court has opined that a notice should be provided to the other party
before granting an ex –parte ad interim order. In the case of Morgan Stanley v.
Kartick Das 17 the Apex Court framed certain guidelines and was of the view
11McDonald’s India Private Limited v. Vikram Bakshi, (2016) SCC OnLine Del 3949
12Niharika Sanadhya, Ex Parte Interim Orders: Ex Parte Relief,
https://www.mondaq.com/india/reporting-and-compliance/943086/ex-parte-interim-orders-ex- parte-
relief#:~:text=India%3A%20Ex%20Parte%20Interim%20Orders%3A%20Ex%20Parte%20Relief&text=
Order%20XXXIX%20Rule%203A%20%2C%20CPC,the%20statute%20is%2030%20days (April 30, 2021,
06:30 pm).
13id.
14Ramrameshwari Devi & Ors v. Nirmala Devi & Ors, (2011) 8 SCC 249
15id at 11.
13
16id at 11.
17Morgan Stanley v. Kartick Das, 1994 SCC (4) 225
14
that a court should refrain from giving an ex parte ad interim relief without
notifying the party. Only in exceptional circumstances, where non grant of
injunctions would cause serious injustice and irretrievable harm, only then such
action must be taken.18
Specifically saying, Intellectual Property law cases are especially plagued by this
problem of lack of notification. Being property rights, the plaintiffs find carrying
out of raids necessary, so as to seize the allegedly infringing subject matter, and
thus demand an ex parte order to conduct a raid without notifying the other party.
This eventually affects the business of the defendant party. An ex – parte ad interim
order is to be disposed of, statutorily, within 30 days, but in real life, it goes beyond
the 30-day duration which is specified in Rule 3A of Order 39.
III. Insufficient relief for vacation of interim order u/s 226(3) of Indian Constitution:
To provide for some relief to a defendant party, it was observed in the case of
Vinayakrao S. Desai v. Interlink Petroleum Ltd. And Ors.,19 that under Article 226(3)
of the Indian Constitution, the opposite party can file a writ application to the High
Court, at any time for vacating interim orders and this can be done in cases where
the courts have not issued a notification to the opposite party.
However, the major problem which lies here is that the application of vacating an
interim order is quite controversial. Section 226(3) of the Indian Constitution has
been interpreted differently by different High courts. Some say that the automatic
vacation of an interim order is mandatory while other high courts deem it
directory.
The case of Vinayakrao S. Desai v. Interlink Petroleum Ltd. And Ors., 20 established
that the application of vacating an interim order should be disposed of within a period
of 2 weeks from the date on which it was received or from the date on which the
copy of such application was so furnished. If the application is not disposed of after
the said duration, then the interim order stands vacated, thereby denoting that vacation
after two weeks becomes mandatory. 21
18id At 11.
19Vinayakrao S. Desai v. Interlink Petroleum Ltd. And Ors., (2001) 3 GLR 2649
20Vinayakrao S. Desai v. Interlink Petroleum Ltd. And Ors., (2001) 3 GLR 2649
21South East Bus Association and Ors. v. The State of Assam, 1981 (1) GLR 305
15
However, the High court of Madras in the judgment of T. Gnanasambanthan (Dr.) v.
Board of Governors, 22 expressed a contrary view and observed that “if the
application could not be disposed of by the court within 2 weeks because of reasons
attributable to the Court, no party should be made to suffer and hence there would not
be an automatic vacation of the interim order.” 23 Thus, in this case the court made
the vacation of an interim order directory.
Therefore, there exists a dichotomy. High Courts having different decisions on the
same matter is not uncommon. But for the proper assurance of justice, there should be
a standard law which is applicable throughout the country. Specifically taking
about ex – parte ad - interim orders, it is necessary to have a uniform law. One High
court allowing the vacation of interim orders only after the court’s direction and the
other High court allowing mandatory vacation of interim orders can seriously
plague the status – quo and burden the opposite party. Thus, setting different
precedents for procedural matters overcomplicates judicial proceedings.
Solution to the problems of Ex – Parte Interim Orders from Canadian Judicial
System
Obliteration of the concept of an Ex – parte – ad interim order in totality is not a good
solution as there are cases where such an order is actually used to minimise the abuse in
matrimonial cases. Thus, a major solution that I could come up with was to weigh in each
case before granting an Ex – parte – ad interim order. Since civil cases are of less serious
matters as compared to criminal cases, granting of Ex – parte ad – interim orders in civil
cases such as IPR or in arbitration proceedings can be done away with.
Therefore, intimating the defendant party via a notice for cases which are commercial in
nature, isn’t a bad idea and the same has been suggested by the Criminal and Civil courts
of Canada as well. As understood from my paper so far, lack of notification puts a lot of
pressure on the defendant party and gives complete freeway to the applying party.
It is understood that an Ex – parte injunction is limited to a few days and then the
Defendant has the opportunity of saying what he has to say against the continuation of the
Injunction until trial. 24 However in reality, an injunction is not limited to just a few days
and it could only be set aside if the Defendant has succeeded in getting the order set aside
by the court. In Alberta, Canada, Rule 287 clause (2) of the Alberta Rules of Court
provides that an Ex-Parte Order may be varied or discharged by any
22T. Gnanasambanthan (Dr.) v. Board of Governors,W.P.No.18450 of 2010
23T. Gnanasambanthan (Dr.) v. Board of Governors,W.P.No.18450 of 2010
16
24F.W. Maitland, Equity: A course of Lectures (A. H. Chaytor and W. J. Whittaker, 1968).
17
judge on motion. 25 However, several incidents denote that in reality judges tend to
hesitate to hear applications which requires them to discharge 26 ex – parte injunction orders
made by other judges. Moreover, the fact that a person is being punished without being
given a full opportunity to be heard in their own defence 27 or passing an order behind
their back in such a way that the onus is cast on them to show cause against it, seems
unfair. Thus, even the judges of courts in Alberta seek either redressal or a want to exercise
the right of giving ex – parte interim orders with great caution.
For identifying plausible solutions, I’ll be delving into Labours laws prevalent in Canada
and see the improvements they have suggested while giving Ex – parte interim
injunctions.
It is often noted that employers use ex – parte interim injunctions to stop labour strikes. A
reasonable approach to labour matters was enunciated in the editorial note to the Quebec
case of Shane v. Lupovich, 28 which stated: “The use of the injunction in labour disputes
very often falls little short of being an abuse of legal process. The purposes of an injunction
is lost when, in advance of a decision on the merits, union activity is enjoined while an
employer is left free to pursue anti-union policies...Such acts aside, Courts are hardly able to
justify a greater regard for the rights of employers than for those of employees. To clothe such
regard in terms of nuisance or intimidation or conspiracy to injure does not alter the fact that
social as well as legal principle is invoked if an injunction is granted.” 29
Thus, to stop the damages caused by Ex – parte injunctions (in this case, an employer causing
harm to the labour union because of the Ex – parte interim order), it is suggested that no
injunction should be granted without notice to the other party. In Canada, it is seen that,
employers very often make representations of fact which are one-sided, inconsistent and do
not truly represent the situation. 30 It is also noted that in New Brunswick, Canada, judges
tend to grant injunctions far in excess of what is required principally because there is no one
present 31 at the initial application to make representation for the other party as to what
would be fair and reasonable. This has led to the modification of injunctions, at subsequent
hearings. 32 Thus, rather than entangling judicial matters even more and causing more harm
to defendant party, it is suggested by the Canadian courts that a notice should always be
given to the defendant party, thereby doing away with the concept of Ex – parte interim
orders in civil proceedings at least.
25Alberta Rules of Court, Rule 287(2)
26D. P. MaGuire, The Ex-Parte Injunction in Matrimonial Cases, 8 ALTA. L. REV. 151, 152 (1970)
27D. P. MaGuire, The Ex-Parte Injunction in Matrimonial Cases, 8 ALTA. L. REV. 151, 153 (1970)
28Shane v. Lupovich, [19421 40.L.R. 390 (Que., C.A.).
29Shane v. Lupovich, [19421 40.L.R. 390 (Que., C.A.).
18
30Eric L. Teed, The Ex Parte Injunction - Use and Abuse, 18 U.N.B.L.J. 118, 121 (1968)
31Eric L. Teed, The Ex Parte Injunction - Use and Abuse, 18 U.N.B.L.J. 118, 121 (1968)
32Eric L. Teed, The Ex Parte Injunction - Use and Abuse, 18 U.N.B.L.J. 118, 121 (196
www.whiteblacklegal.co.in ISSN: 2581-8503
19
Conclusion
While concluding this paper, I’d like to say that though Injunctions and Ex – parte
interim orders are incorporated in CPC, 1908 for the greater good of the society and are
largely helpful in matrimonial cases, cases of domestic violence as well as those of child’s
custody. We, however, cannot rule out the possibility that Ex – parte interim order can be
disadvantageous to the defendant party as they are not present to dispute the matters of fact
and make themselves heard, when such an application is being filed by the applying party.
Hence, as even seen in Canadian jurisprudence, an Ex – parte interim order of injunction
should be exercised with great caution. Further, grant of ex – parte order of injunction
should be done by analysing each case. If one case genuinely requires an ex – parte
order of injunction (for ex. - a case involving cruelty or domestic violence), then the
same should be given. However, if there is a less grievous case, let’s say a commercial
issue related to Arbitration or IPR, then serving a notice to the other party wouldn’t hurt.
Therefore, a better practice is to apply this relief on a case by case basis, rather than
obliterating the practice completely