Orchard Capital I Ltd v Ravindra Kumar Jhunjhunwala

Choo Han Teck J:

[1] The respondent is a company registered in the Cayman Islands. The appellant is an Indian national residing in Singapore. He entered into several contracts with the respondent. The appellant failed to discharge his obligations under those contracts. Consequently, the parties entered into a settlement agreement on 28 May 2010 with a view of resolving his breach of the earlier agreements. The appellant contracted thus to pay US$2,500,000 by 28 November 2010. The appellant failed to pay as agreed and by reason of which, the respondent now claims in this suit the full sum of US$6,500,000 (owing under earlier agreement) plus interests amounting to US$261,780.82.

[2] The appellant applied to stay the respondent’s suit on the ground that Singapore is not the proper forum. He relied on the non-exclusive jurisdiction clause in the settlement agreement which provided that —

His application was dismissed and he appealed before me.

[3] Both parties cited Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 (“Spiliada”) in support. It seems clear that the Spiliada requires a court, in an application for a stay of proceedings application on the ground of forum non conveniens, to determine on the balance of all competing factors, which forum would be the more clearly appropriate one. Given that the action to be stayed was commenced here, the allegation that this was not the appropriate forum meant that the burden lies with the applicant to show which was the more appropriate forum.

[4] In this case, the only material factors facing off were the fact that the parties had chosen Hong Kong as the appropriate forum, and the fact that the appellant and his family are resident here, and he appears to have business in Singapore although the respondent had acknowledged that the original contracts were made to further the appellant’s business in “India, China and USA”. The respondent’s counsel conceded that witness testimony in this case was not material as the claim would be essentially a construction of the contract. The original contracts specified Hong Kong to be the exclusive jurisdiction whereas the settlement agreement specified Hong Kong as the non-exclusive jurisdiction. Performance under the settlement agreement was to be made by payment into a Citibank account in America.