Union of India & Ors. v. Shanti Gurung & Ors.

1. The plaintiffs Union of India, Ms. Neena Malhotra & Mr. Jogesh Malhotra have instituted this suit pleading:- (i). that the plaintiff Ms. Neena Malhotra was in the years 2006-09 posted as Counsellor/Consul at the Indian Consulate in New York, United States; 2013:DHC:2678 (ii). the plaintiff Mr. Jogesh Malhotra is the husband of the plaintiff Ms. Neena Malhotra; (iii). that the plaintiff Ms. Neena Malhotra was entitled while so posted abroad, to the facility of a domestic assistant and whose employment was enabled and subsidized by the plaintiff Union of India; (iv). the plaintiff Ms. Neena Malhotra accordingly engaged the services of the defendant no.1 Ms. Shanti Gurung and who accompanied the plaintiff Ms. Neena Malhotra to New York on 30th March, 2006 and remained with her till July, 2009 and during the said time also made a visit to India in the year 2007; (v). that the plaintiff Ms. Neena Malhotra was scheduled to complete her tenure in USA and scheduled to return to New Delhi on 29th July, 2009 and though the defendant no.1 was scheduled to return with her but expressed a desire to seek placement with another Indian Diplomat working at the Permanent Mission of India to the United Nations; (vi). that the defendant no.1 suddenly disappeared from the apartment of the plaintiff Ms. Neena Malhotra on 28th July, 2009 and there was no sign of her for about a year; (vii). that the defendant no.1 in July, 2010 filed a complaint against the plaintiff Ms. Neena Malhotra and her husband in the United States District Court, Southern District, New York claiming damages inter alia on the ground that in March, 2006 she was trafficked by the plaintiffs to the United States and kept imprisoned and subjected to involuntary servitude and maltreatment; (viii). that the defendant no.2 M/s. Gibson, Dunn & Crutcher LLP, a firm of solicitors representing the defendant no.1 in the said complaint and working on a contingency basis has aided and abetted the defendant no.1 in her illegal attempts to coerce the plaintiffs to succumb to their demands; (ix). that a default judgment (preliminary) dated 22nd November, 2011 has been entered by the United States District Court, Southern District, New York against the plaintiffs for payment of damages to the defendant no.1 with costs. (x). that by subsequent order dated 22nd February, 2012, damages have been assessed. and claiming the following reliefs: (a). for declaration that the proceedings initiated by the defendants against the plaintiffs are vexatious, oppressive and nullis juris and the decision or order dated 22nd November, 2011 passed by the United States of America District Courts, South District of New York in No.10- CIV 5086(VM) and the order of Hon’ble Mr. Frank Maas, Magistrate, of 22nd February, 2012 or any other order that may/would be passed is nullis juris and not binding on the plaintiffs; (b). for permanent injunction restraining the defendants from pursuing the claim or any proceedings and relying upon the order dated 22nd February, 2012 or from taking any steps whatsoever to get a final judgment or from proceeding further to enforce the said order or judgment; (c). for a decree directing the defendants to withdraw the complaint aforesaid; (d). for permanent injunction restraining the defendants from notifying, publishing or issuing any press release or media notice or taking any steps either in the United States of America or elsewhere in relation thereto or relying on the aforesaid orders/judgment.

2. Summons of the suit and notice of the application for interim relief were issued and vide ex parte order dated 14th March, 2012 the defendants were restrained from pursing the complaint/claim titled Ms. Shanti Gurung Vs. Ms. Neena & Jogesh Malhotra or from relying upon the orders dated 22nd November, 2011 and 22nd February, 2012 passed by the Magistrate of the Southern District Court, New York to get a final judgment or proceed to enforce the same.

3. These voluminous applications have been filed by the defendant no.2 M/s. Gibson, Dunn & Crutcher LLP for deletion of the defendant no.2 from the array of parties and/or rejection of the suit against the defendant no.2 and for vacation of the interim order in so far as against the defendant no.2. Though the applications deal with the merits of the claim of the plaintiffs in this suit but need is not felt to elaborate thereon in as much as on 11th April, 2013 when these applications came up for consideration, the senior counsel for the defendant no.2 argued, a) that the proceedings in the United States District Court qua which the suit has been filed are at the instance of the defendant no.1; b) the monetary relief awarded in the said proceedings is also in favour of the defendant no.1 and against the plaintiffs no.2&3 herein, together with costs; c) that the monetary relief so decreed, together with costs is recoverable by the defendant no.1 and out of which, as per law and practice prevalent in that jurisdiction, the defendant no.2 would be entitled to the amount towards costs/legal fees even though has acted pro bono in the said proceedings for the defendant no.1; d) that the entire basis on which the defendant no.2 has been impleaded in this suit is that it has an independent financial/pecuniary interest in the decree of the New York Court; e) however the decree of the New York Court enures only to the benefit of the defendant no.1 and can only be executed by her and the decree cannot be executed independently by the defendant no.2 and the defendant no.2 cannot execute independently even that part of the decree which awards legal fees and expenses to the defendant no.1; f) that as per the engagement letter of the defendant no.2, only when the defendant no.1 successfully executes the decree in her favour, that part of the decree which awards her legal fees and expenses will stand assigned to the defendant no.2 and the assignment does not allow the defendant no.2 to independently execute the decree (or any part of it) which is in favour of the defendant no.1 alone.

4. The only contention thus urged on behalf of the defendant no.2 is that the defendant no.2 has been wrongly impleaded and there is no cause of action against the defendant no.2. The senior counsel for the defendant no.2 during the hearing on 11th April, 2013, under instructions further stated that the defendant no.2 shall not independently execute the decree or order aforesaid or be able to do any other thing in the proceedings in the United States as long as the anti-suit injunction against the defendant no.1 continues. It was yet further argued that this Court has no jurisdiction against the defendant no.2 and the arguments aforesaid are without prejudice to the said last argument.

5. In view of the statement aforesaid on behalf of the defendant no.2 it was on 11th April, 2013 enquired from the learned ASG appearing for the plaintiffs as to what is the necessity to continue with the defendant no.2 in as much as, the plaintiffs if not successful against the defendant no.1, cannot be successful against the defendant no.2 and if the plaintiffs are successful against the defendant no.1, the defendant no.2, as aforesaid would be equally bound.

6. The learned ASG on behalf of the plaintiffs has contended, a) that the defendant no.2 has interest in the litigation; b) that the entire evidence and documents are with the defendant no.2; c) that the defendant no.2 has an economic interest in the litigation qua which anti-suit injunction is claimed in this suit; d) that the defendant no.2 has abetted, conspired and acted contrary to the legal principles. It is further argued that the defendant no.1 at the behest of the defendant no.2 made allegations and took pleas in the proceedings in the Foreign Court which have no sanctity in law and which are in contravention of Vienna Convention and were scandalous and were eventually given up or not pressed. Attention is invited to Section 17 of The Indian Contract Act and it is contended that if a lawyer has a financial interest, he is liable to costs.

7. The senior counsel for the defendant no.2 has rejoined that though the defendant no.2 had acted pro bono for the defendant no.1 but as per its engagement terms, the legal costs if any awarded to the defendant no.1 by the Court were to stand assigned to the defendant no.2 - this is in accordance with the laws of that jurisdiction.

8. Though the senior counsel for the defendant no.2 has also argued on the principles governing the grant of anti-suit injunction but in the light of the statement aforesaid made by the senior counsel for the defendant no.2, need is not felt to deal with the same.

9. Significantly, the plaintiffs in the present suit have not made any claim for damages against the defendants. The only claim is for declaration of the proceedings in the United States District Court as nullis juris and for an injunction, restraining the defendants from proceedings therewith or from enforcing the orders passed therein.

10. As far as the relief claimed of injunction is concerned, the defendant no.2 has already as aforesaid made a statement that as long as the injunction against the defendant no.1 continues, the defendant no.2 cannot independently execute the decree or order, even to the extent of legal costs. The defendant no.2 having made this statement in this Court cannot renege therefrom and will be bound thereby and in the light of the said statement, need is not felt to proceed further with the claim for injunction against the defendant no.2 in as much as the purpose sought to be served by the plaintiffs by claiming the said injunction stands served by the said statement of the counsel for the defendant no.2.

11. That leaves only the aspect of the relief of declaration. The defendant no.2 admittedly acted as the agent of the defendant no.1. I do not see the need for adjudicating the claim of the plaintiffs for declaration against the defendant no.2 in as much as the defendant no.2 does not have or claim any right independent from the defendant no.1 in the said proceedings and if the proceedings by the defendant no.1 are held to be nullis juris, there is no need for the defendant no.2 to be a party to said relief of declaration.

12. I am therefore of the view that in view of the developments aforesaid, no case for proceeding against the defendant no.2 is made out.

13. Accordingly, binding the defendant no.2 to its statement not to independently execute the orders dated 22nd November, 2011 and 22nd February, 2012 or doing anything in the complaint proceedings by the defendant no.1 in the United States District Court as long as the interim order in this suit against the defendant no.1 continues, the name of the defendant no.2 is ordered to be deleted from the array of defendants in the suit.

14. The applications are disposed of. CS(OS) 610/2012, IAs No.4637/2012 (u/O 39 R-1 & 2 CPC), 16904/2012 (for directions), 16905/2012 (u/O 8 R-10 CPC), 20039/2012 (of the defendant no.1 u/O 7 R-10 & 11 CPC), 20042/2012 (of the defendant no.1 u/O 39 R-4 CPC) & 20043/2012 (for exemption).

15. List for further consideration on 26th November, 2013. Needless to state, the interim order against the defendant no.1 to continue till further orders.