IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  
  
  
  
  CS(OS) 610/2012 and I.A. Nos. 4636-37/2012
  
  
  
  
  
  UNION OF INDIA and ORS. ..... Plaintiff
  
  Through: Mr.A.S.Chandhiok, ASG with Ms.Sapna, Mr.Bhagat Singh and
  Mr.Vidit Gupta, Advs.
  
  
  
  
  
  
versus
  
  
  
  
  
  SHANTI GURUNG and ORS. ..... Defendant
  
  Through: None
  
  
  
  
  
  CORAM:
  
   HON'BLE MR. JUSTICE KAILASH GAMBHIR
  
  
  
   O R D E R
  
   14.03.2012
  
  CS (OS) NO. 610/2012
  
  Issue summons in the Suit, by Ordinary Process, Registered A.D.
  Covers, Speed Post, Courier and by all other legally permissible means
  returnable on 3.5.2012.
  
  IA No. 460/2012 (u/o 39, R-1 and2)
  
  
  By this application filed under Order 39 Rule 1 and 2, the plaintiffs seek issuance of an anti-suit injunction in their favour and against the
  defendants no. 1 to 3 restraining them from pursuing the complaint/claim
  in the case titled Ms. Shanti Gurung Vs. Neena and Jogesh Malhotra Case no.
  10-CIV 5086 (VM) before the Courts in United States of America.
  
  Mr. A S Chandhiok, learned Additional Solicitor General of India,
  arguing for the plaintiff submits that the defendant no.1 was in the
  employment of the Union of India i.e, plaintiff no.1 herein under the
  scheme of IBDA under which the Government of India extends the facility
  of engagement of service staff members to aid the Indian diplomats
  serving abroad in carrying out their duties. Counsel also submits that
  under the said scheme, the Government got prepared the passport of
  defendant no.1 and at the instance of Union of India, an A-3 visa was
  issued to her by the US Embassy and also the travel expenses of defendant
  no.1 were borne by the plaintiff no.1.
  
  Counsel further submits that the allegations of the defendant no.1
  of trafficking and kidnapping are ex-facie false, as the defendant no.1
  had volunteered herself to accompany the plaintiff no.2 as her domestic
  servant to the USA. Counsel also submits that defendant no.1 had visited
  Delhi along with the plaintiff no.2 in the year 2007 and had the
  allegations of ill treatment been true, then at least she would have
  lodged some complaint with the police or at least with the concerned
  office of the Ministry of External Affairs but at no point of time, the
  defendant no.1 made any complaint so as to bring to the notice of the
  plaintiff no.1 about the grievances raised by her in the complaint dated
  10th July, 2010 filed by her before the court at United States. Counsel
  further submits that it is for the first time that the defendant no.1 had
  made such a complaint on 10th July, 2010 and this belated complaint on
  the part of defendant no.1 by itself is a manifestation of her oblique
  motives to prolong her stay in USA as she had been missing since 28 July
  2009. Counsel further submits that it is learnt that defendant no.1 has
  married one boy named Mr. Suraj, who is also the domestic help of another
  officer and this entire conspiracy has been hatched by defendant no.1 to
  continue her stay in USA. Counsel also submits that the defendant no.1
  had sought continuation of her employment with another officer posted in
  USA but while seeking extension of her stay she did not utter a word
  complaining about the conduct of the plaintiff no.2. In the course of
  the arguments, counsel for the plaintiff has also drawn the attention of
  this Court to some of the photographs placed on record in which defendant
  no.1 is along with plaintiff no.2 and is in a cheerful mood.
  
  Counsel further submits that the Courts at the United States of
  America have not followed the proper procedure to serve the Union of
  India in terms of the Hague Service Convention and without taking proper
  steps to serve the Union of India, the United States Court has proceeded
  to pass a default judgment against the plaintiff nos. 2 and 3. Counsel
  also submits that the Union of India had submitted an amicus curiae brief
  raising all the pleas with regard to invalid service of the plaintiffs
  no. 2 and 3 in blatant violation of the Hague Convention and also
  bringing to the notice of the Court the applicability of the domestic
  laws of this Court, but ignoring all the pleas raised by the Union of
  
  India in the said amicus curiae brief, the US Courts went ahead and passed a default judgment in favour of the defendant no.1 vide order
  dated 22.11.2011. Counsel thus submits that the initiation of proceedings
  at the courts at United States are oppressive, vexatious and an abuse of
  the process of law and the ends of justice would suffer and fraud
  perpetrated if an aniti-suit injunction is not granted in favour of the
  plaintiff and against the defendants.
  
  I have heard learned senior counsel for the plaintiff at
  considerable length and gone through the documents placed on record.
  
  A brief conspectus of facts of the present case is necessary to
  decide the present application under consideration. The case of the
  plaintiffs is that the plaintiff no.2 is a career diplomat and a full
  time employee of plaintiff no.1 who was posted on an official assignment
  in the United States from 2006 to 2009 whereas the defendant no. 1 was
  engaged as a service staff member under the IBDA (Indian Based Domestic
  Assistant) facility provided by the Government of India to the diplomats
  serving abroad to aid them in carrying out their official duties. As per
  the plaintiff, the defendant no.1 was issued an official passport by the
  plaintiff no.1 and an A-3 visa was issued to her by the US Embassy for
  traveling with the plaintiff no.2 for the period of her assignment. The
  plaintiff no.2 along with defendant no.1 left India on 29th March, 2006
  whereafter the defendant no.1 stayed with the plaintiff no. 2 and 3 in
  the official residence of the plaintiff no. 2. The defendant no.1 along
  with the plaintiff no.2 came back to India on 18th January, 2007 for a
  vacation and then, returned back to the United States to resume duties.
  It is the case of the plaintiffs that the defendant no.1 suddenly
  disappeared from the apartment of plaintiff no.2 on 28th July, 2009
  whereafter an official notification regarding her disappearance was made
  to the United States Authorities on 29th July, 2009 and consequently her
  official passport was revoked by plaintiff no.1. Thereafter, in July,
  2010, the defendant no.1 filed a complaint against plaintiff no. 2 and 3
  in United States District Court, Southern district, New York, claiming
  damages inter alia on the ground that in March, 2006, she was trafficked
  to the United States by plaintiff nos. 2 and 3 and also leveled charges
  of kidnapping, involuntary servitude, forced labour, maltreatment,
  failure to pay earned wages, assault, false imprisonment, infliction of
  emotional distress, etc. The notice of the said complaint was sent to
  the plaintiff no.1 by Crown Foreign Services for onward service of
  plaintiff no. 2 and 3 which was rejected by plaintiff no.1 vide letter
  dated 10th February, 2011 relying upon the reservations provided under
  Article 13 of the Hague Service Convention. Thereafter, as per the order
  dated 8th August, 2011 of the Court of the United States of America, an
  amicus curiae brief was submitted by the plaintiff no.1 raising pleas of
  the invalid service and that the objection to the jurisdiction of the US
  court to try the said matter which was objected to by the defendants and
  the said Court vide order dated 22nd November, 2011 allowed the motion
  for default judgment in favour of the defendant no.1 and against the
  plaintiff nos. 2 and 3. Further vide order dated 22nd February, 2012, the
  United States Court awarded damages of $1,458,335 in favour of the
  defendant no.1 and a time frame of 14 days from the service of the order
  
  was given to file objections against the said order. The plaintiffs herein have now approached this Court to restrain the defendants from
  pursuing further the said proceedings before the United States Court.
  
  The main grievance raised by the learned Additional Solicitor
  General is that the plaintiff no.2 and the defendant no.1 are both
  citizens of India and are in the employment of plaintiff no. 1 i.e, Union
  of India and hence are governed by the domestic laws of this country.
  Learned senior counsel has further contended that the Courts at United
  States have no jurisdiction to pass an order against the plaintiff no. 2
  as she is a diplomat of this country posted officially for an assignment
  in the United States and thus enjoys the privilege of sovereign immunity.
  In support of his argument, counsel has placed reliance on the Hague
  Service Convention and the Vienna Convention on Consular Relations. The
  counsel further submits that great injustice would be caused to the
  plaintiff nos. 2 and 3 if an anti-suit injunction is not issued in their
  favour and against the defendants as that would lead to finally decreeing
  the order dated 22nd February, 2012 awarding damages to the defendant no.
  1. Counsel further argued that both the orders dated 22.11.2011 and
  22.2.2012 passed by the courts at United States seriously interfere with
  judicial sovereignty of India besides the same being in violation of the
  Vienna Convention, The Hague Convention and the Foreign Sovereign
  Immunity Act, 1976. In support of his argument, counsel for the
  plaintiff has placed reliance on the recent judgment of this Court in the
  case of Union of India Vs. Videocon Industries dated 5th March, 2012.
  
  It is evident from the passport of the defendant no.1 placed on
  record that the same was issued to her to accompany the plaintiff no.2 as
  the service staff member to help her in carrying out her duties. It is
  further manifest that she was granted an A3 visa by the United States
  Embassy at India at the instance of plaintiff no.1 and the tickets placed
  on record also show that the travel expenses of the defendant no.1 were
  borne by the plaintiff no.1. From the certificate issued by the Syndicate
  Bank, New Delhi, it is apparent that the payment on various dates was
  made by the plaintiff no.2 to the account of defendant no.1. In the face
  of the aforesaid facts, it cannot be conceived prima facie that the
  defendant no.1 was trafficked or kidnapped by the plaintiff no.2 from
  India in 2006.
  
  On a bare perusal of the complaint dated 10 July, 2010 filed by the
  defendant no.1 before the court at United States, it is palpable that the
  allegations leveled by the defendant no.1 are of serious nature ranging
  from kidnapping, trafficking, involuntary servitude to maltreatment,
  malnourishment, assault, etc. Without expressing any view on the
  truthfulness of the allegations leveled by defendant no.1 which has led
  to the passing of the order dated 22.11.2011 and 22.2.2012, this court
  would like to observe that it is not uncommon for the ones in positions
  of power to sometimes treat the lower class with disdain and take
  advantage of their position and power to treat them according to their
  own whims and fancies as many such instances have surfaced in the past.
  Nobody can be allowed to get away with such conduct and the country
  cannot in any circumstance concede to any feudal tendencies. The foreign
  diplomats being the top brass have more responsibility on their shoulders
  
  as they are not only the ambassadors of India?s honour and dignity but also of our culture and hence have to treat their subordinates more
  humanely. On the other hand there may be cases where the domestic
  servants knowing that the image and career of the diplomat will take a
  beating if anything is said against them, may also hatch an iniquitous
  conspiracy for fulfilling their nefarious designs. In any case event of
  the matter, in the case at hand at this stage the truth of the
  allegations cannot be bared. Having said that, it is also
  incomprehensible that the defendant no.1, who was meted such inhuman
  treatment as alleged, did not take any steps to complain against the
  plaintiff no.2 and 3 to any of the officers residing in the same building
  or even file a complaint during the stay of the plaintiff no.2 there as
  she consequently did in July, 2010. It is also quite baffling that the
  defendant no.1 visited India alongwith the plaintiff no.2 in January 2007
  for vacation and did not bring to the notice of any officer of plaintiff
  no.1 or even lodge a police complaint against the plaintiff no.2 for the
  alleged cruel treatment inflicted on her and returned back alongwith the
  plaintiff no.2 to the USA. The photographs placed on record by the
  plaintiff confute the allegations of the defendant no.1 alleging false
  imprisonment and confinement as there is no apparent fear or any hostile
  atmosphere discernable from them and instead she seems to be in a happy
  disposition.
  
  I also find force in the contention of the learned senior counsel
  for the plaintiffs that the plaintiff no.2 is a diplomat in the services
  of the plaintiff no.1 and was sent in official capacity to the United
  States and thus enjoys Sovereign immunity and any order passed by the
  court of United States would tantamount to interfering in the right of
  the Government of India to determine the terms and conditions of the
  employment of its diplomatic officers posted abroad , including the terms
  by and under which assistants are provided to such officers. Article
  53(4) of The Vienna Convention on Consular Relations, 1963 to which both
  India and the United States Of America are a party states that with
  respect to acts performed by a consular officer or a consular employee in
  the exercise of his functions, immunity from jurisdiction shall continue
  to subsist without limitation of time. The defendant no.1 herein was
  assisting the plaintiff no.2 in carrying out her duties in USA. The
  defendant no.1 was an employee of the Government of India and so was the
  plaintiff no.2 and both were Indian Citizens sent abroad by the plaintiff
  no.1 for carrying out their respective duties. The treatment whatever
  alleged by the defendant no.1 has happened within the official residence
  of the plaintiff no.2 which is in occupation and belongs to the
  Government of India and only the Indian laws would and not the laws of
  the United States. Hence, in such a scenario during the tenure of the
  plaintiff no.2 in USA, if the defendant was treated mercilessly as
  alleged, the courts in the United States would not have jurisdiction to
  pass an order against the plaintiff no.2, she being not amenable to the
  jurisdiction of that court. However, even if the allegations are assumed
  to be true, then also the remedy of the defendant no.1 lies before the
  courts at India and not before the United States Courts.
  
  It is important to state that the plaintiff no.2 entered into a
  contract with the defendant no.1 before proceeding to the United States
  
  in 2006 and that contract placed on record is the standard agreement prescribed by the Embassy of United States in India for regulating the
  relationship between diplomatic agents and their domestic assistants.
  However it is important to state that the plaintiff no.1 has failed to
  place on record any contract governed by the plaintiff no.1 for her to be
  attached to plaintiff no.2 under the IBDA scheme or as to what are the
  terms under the IBDA with regards to wages and accommodation, etc.
  
  For the grant of an anti-suit injunction, the court has to
  determine that whether the defendant is amenable to the personal
  jurisdiction of this court and that the ends of justice would be defeated
  if the injunction is declined. It would be apt to reiterate the
  observation of the learned judge in the case of Videocon
  Industries(supra) on which reliance has been placed by the counsel for
  the plaintiff as follows:
  
  
  
  ?97. Further, as regards the contention of the defendant that an order of
  anti-suit injunction ought not to be granted as it would transgress the
  norms of judicial comity, indubitably the settled position in law is that
  an anti-suit injunction should be granted only if there is an impending
  risk of conflicting judgments and, if and only if the proceedings in the
  Court of foreign jurisdiction would perpetuate injustice. This Court is
  not oblivious to the fact that while granting anti-suit injunction it
  must tread cautiously having regard to all the facts and circumstances of
  the case, but this Court is also mindful of the fact that an anti-suit
  injunction operates against the party concerned and not against the court
  of foreign jurisdiction. Moreover, this Court cannot turn a blind eye to
  the vexation and oppression which would be caused to the plaintiff by
  compelling it to re-litigate on an issue upon which the Supreme Court has
  given its final and conclusive determination. To compel it to do so would
  constitute the worst imaginable case of abuse of the process of the
  Court, besides giving a complete go-by to the principle of res judicata
  and issue estoppel which govern the public policy of India.?
  
  
  
  Hence, in the light of the above, in the present case if the
  foreign courts are allowed to decide the issue finally, then the whole
  concept of anti-suit injunction would be defeated. Hence, applying the
  tri-partite test of prima facie case, balance of convenience and
  irreparable loss and injury, this court deems it appropriate to grant an
  ex parte anti-suit injunction in favour of the plaintiffs and against the
  defendants restraining them from pursuing the complaint/claim titled
  Ms.Shanti Gurung vs. Ms.Neena and Jogesh Malhotra or rely upon the order
  dated 22.11.2011 and 22.2.2012 passed by the Magistrate of the Southern
  District Court, New York to get a final judgment or proceed to enforce
  the same till the next date.
  
  This court is also mindful of the fact that the plaintiff no.1 is
  not a witness to what has happened within the four walls of the residence
  of the plaintiff no.2 on foreign soil and if the defendant no.1 has been
  
  a victim of any barbaric conduct, as held by the United States court, at the hands of the plaintiff no.2, then the plaintiff no.1 has the prime
  responsibility of taking care of her rights as well, she also being an
  Indian citizen. This court therefore directs the plaintiff no.1 to
  establish personal contact with the defendant no.1 through its diplomatic
  channels to ascertain the veracity of the allegations made by her before
  the next date.
  
  No observations made herein above would however tantamount to an
  expression on the merits of the case.
  
  Renotify on 3.5.2012
  
  DASTI
  
  KAILASH GAMBHIR, J
  
  MARCH 14, 2012