State Bank Of India & Ors v Mallya & Ors

INTRODUCTION

The First Defendant (“Dr Mallya”) applies:

By way of elaboration of (i) above, Dr Mallya seeks in the alternative:

There is a degree of overlap in the issues raised by Dr Mallya’s two applications, but for the reasons considered later in this judgment he contends that the WFO should be discharged whether or not the Registration Order is set aside.

OUTLINE FACTUAL BACKGROUND TO THE DRT JUDGMENT

Dr Mallya is a well-known Indian businessman and former member of the Parliament of India, now living in the UK pursuant to indefinite leave to remain which he has possessed since 1992.

Dr Mallya has for many years had a wide range of business interests including the United Breweries Group and the Force India Formula One team. In addition to his commercial interests, from 2002 to 2008 and 2010 to 2016 Dr Mallya was elected to represent the State of Karnataka in India’s Council of States (the upper house of the Parliament of India), frequently visiting India in order to fulfil his parliamentary duties. He has received a number of honours and awards.

In 2003, Dr Mallya launched Kingfisher Airlines Limited (“KFAL”) which grew rapidly. Within its first three years of operating, KFAL’s market share had grown to 25%. The 2008 global financial crisis impacted the Indian airline industry and KFAL’s financial position became precarious. The First Claimant, State Bank of India (“SBI”), provided loan finance to KFAL from 2009.

The Claimants are state-owned Indian banks (apart from the Thirteenth Claimant, which is an asset restructuring company that purchased debt owed to other Indian banks). In an attempt to secure KFAL’s future, the Claimants combined together to negotiate a Master Debt Recast Agreement dated 21 December 2010 (“MDRA”) which subsumed within its terms all of KFAL’s outstanding loan obligations. KFAL’s obligations under the MDRA were secured by, among other things, a personal guarantee from Dr Mallya of the same date (“the Personal Guarantee”) and a guarantee from United Breweries (Holdings) Limited (“UBHL”). Dr Mallya does not accept that he is bound by the Personal Guarantee.

KFAL fared badly, and SBI declared it a non-performing asset in 2012. Also in 2012, the Civil Aviation Authority suspended KFAL’s operating licence and winding up proceedings were commenced by some of its creditors.

On 26 March 2013 Dr Mallya, UBHL and Kingfisher Finvest (India) Ltd (“KFin”) commenced proceedings in the Bombay High Court challenging, among other things, the validity of the Personal Guarantee on the basis of alleged non-compliance with Indian banking rules and coercion. That claim remains to be determined and is further considered below. On 2 April 2013 the Claimants called in their loans under the MDRA. On the same date, applications by UBHL, KFin and Dr Mallya in the Bombay High Court for interim relief were refused, and the court ordered the determination as a preliminary of the question “whether this Court has jurisdiction to try and entertain the present suit”.

On 26 June 2013 the Claimants commenced proceedings in the DRT against KFAL, UBHL, Dr Mallya and others. As set out in more detail below, due to delays in the ordinary court system in India the DRT was established in 1993 as the body with exclusive jurisdiction to hear claims by banks or other financial institutions for the recovery of debts exceeding Rs 1 million (1 million Indian rupees, equivalent to about £10,000).

Dr Mallya and others on 16 July 2013 made an application in the DRT contesting its jurisdiction on the basis that the Claimants had already commenced proceedings in the Karnataka High Court and that Dr Mallya and others had already brought proceedings in the Bombay High Court. The DRT dismissed this challenge on 12 November 2013 and Dr Mallya initiated an appeal to the Debt Recovery Appeal Tribunal (“DRAT”).

Two years later, on 17 July 2015 Dr Mallya applied to withdraw the application for interim relief in the Bombay High Court, seeking at the same time to overturn the court’s decision to determine the question of jurisdiction as a preliminary issue (which would, it appears, mean the question of jurisdiction would have to be dealt with at the final hearing on the merits). Those applications have not yet been disposed of.

On 19 January 2017 the DRT issued the DRT Judgment. Dr Mallya’s appeal to the DRAT from the DRT’s November 2013 dismissal of Dr Mallya’s jurisdiction challenge was dismissed on 16 March 2017. On 10 April 2017 the DRT issued an amended Recovery Certificate providing for recovery under the statutory procedure discussed below of sums due under the DRT Judgment. On 27 July 2017 the Presiding Officer of the DRT issued a letter under seal regarding the DRT’s jurisdiction which is also discussed further below.

On 4 October 2017, 212 days out of time, Dr Mallya and UBHL lodged appeals with the DRAT from the DRT Judgment along with applications to condone delay. The appeal documents contained errors which the DRAT required to be corrected. It appears those errors were not corrected and on 2 January 2018 the appeal of Dr Mallya was dismissed for non-compliance and non-attendance by counsel at the hearing.

A DRT Order of Attachment was made on 19 January 2018 in respect of shares in United Breweries Ltd said to be worth £385.9 million.

On 1 February 2018 the DRAT dismissed UBHL’s appeal from the DRT Judgment stating that “no good ground is made out for extension of time”. Dr Mallya makes the point that this was in fact not a substantive ruling on UBHL’s application to condone delay, and in any event that his circumstances are different from those of UBHL.

On 5 March 2018 Dr Mallya issued applications to restore his appeal and for condonation of the delay in issuing that restoration application, it having been filed 27 days beyond the 30-day period allowed for such an application.

On 28 March 2018 the DRAT made an interim order directing Dr Mallya to deposit Rs. 3,101 crores (being 50% of the principal included within the DRT Judgment sum) with the DRAT before 25 April 2018 as a pre-condition to the DRAT considering his applications to restore the appeal and for condonation of the delay in filing the appeal. A crore is Rs. 10 million. Dr Mallya on 13 April 2018 issued an application in the Karnataka High Court challenging the DRAT’s order.

In parallel with these civil proceedings, Dr Mallya is the subject of criminal proceedings in India arising out of loan arrangements with the Fifth Claimant, which have led the Indian Government to request his extradition from England. He is contesting those extradition proceedings on the basis that the criminal charges are without substance and are politically motivated.

APPLICATIONS TO SET ASIDE THE REGISTRATION ORDER OR STAY ENFORCEMENT

The Registration Order was made under the 1933 Act as amended by the Civil Jurisdiction and Judgments Act 1982. The 1933 Act applies to India by virtue of the Reciprocal Enforcement of Judgments (India) Order 1958 (the “1958 Order in Council”).

Section 1(1) and (3) and of the 1933 Act provide that:

“1(1) If, in the case of any foreign country, Her Majesty is satisfied that, in the event of the benefits conferred by this Part of this Act being extended to, or to any particular class of, judgments given in the courts of that country or in any particular class of those courts, substantial reciprocity of treatment will be assured as regards the enforcement in that country of similar judgments given in similar courts of the United Kingdom, She may by order in Council direct

(a)

that this Part of this Act shall extend to that country;

(b)

that such courts of that country as are specified in the Order shall be recognised courts of that country for the purposes of this Part of this Act; and

(c)

that judgments of any such recognised court, or such judgments of any class so specified, shall, if within subsection (2) of this section, be judgments to which this Part of this Act applies.”

“1(3) For the purposes of this section, a judgment shall be deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.”

Section 2(1) and (2) include the following provisions:

“2(1) A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the High Court at any time within six years after the date of the judgment, or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High Court, and on any such application the court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered:

Provided that a judgment shall not be registered if at the date of the application—

(a)

it has been wholly satisfied; or

(b)

it could not be enforced by execution in the country of the original court.”

“2(2) Subject to the provisions of this Act with respect to the setting aside of registration –

(a)

a registered judgment shall, for the purposes of execution, be of the same force and effect;…

as if the judgment had been a judgment originally given in the registering court and entered on the date of registration

Provided that execution shall not issue on the judgment so long as, under this Part of this Act and the Rules of Court made thereunder, it is competent for any party to make an application to have the registration of the judgment set aside, or, where such an application is made, until after the application has been finally determined.”

Section 11(1) provides, inter alia, that “court” for these purposes includes a tribunal. “Judgment” is defined as “a judgment or order given or made by a court in any civil proceedings, or a judgment or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party”.

Paragraph 4 of the 1958 Order in Council states:

“4.

The following Courts of the said territories shall be deemed Superior Courts of the said territories for the purposes of Part 1 of the said Act [the 1933 Act], that is to say:-

(a)

The Supreme Court.

(b)

All High Courts and Judicial Commissioners’ Courts.

(c)

All District Courts.

(d)

All other Courts whose civil jurisdiction is subject to no pecuniary limit provided that the Judgment sought to be registered under the said Act is sealed with a seal showing that the jurisdiction of the Courts is subject to no pecuniary limit.”

Sections 4 and 5 of the 1933 Act provide mandatory and discretionary grounds under which a registration order may be set aside:

“4(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration of the judgment—

(a)

shall be set aside if the registering court is satisfied—

(i)

that the judgment is not a judgment to which this Part of this Act applies or was registered in contravention of the foregoing provisions of this Act;

…

(vi)

that the rights under the judgment are not vested in the person by whom the application for registration was made; …”

“5(1) If, on an application to set aside the registration of a judgment, the applicant satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment, the court, if it thinks fit, may, on such terms as it may think just, either set aside the registration or adjourn the application to set aside the registration until after the expiration of such period as appears to the court to be reasonably sufficient to enable the applicant to take the necessary steps to have the appeal disposed of by the competent tribunal.”

Dr Mallya seeks:

I consider issues (i) above together in section (1) below and issues (ii)-(iv) in section (2) below.

DRTs were created by the Indian Parliament pursuant to the Recovery of Debts due to Banks and Financial Institutions Act 1993, which was amended in 2016 and renamed the Recovery of Debts and Bankruptcy Act 1993 (“the RDB Act”).

According to the evidence of the Claimants’ expert Justice Singhvi, a former judge of the Supreme Court of India, in the late 1980s the Indian banking system was in crisis, with many bad debts and hampered by a chronically overburdened legal system. The RDB Act was enacted to enable speedier adjudication of the claims of banks and financial institutions. Its effect is that a bank seeking to recover a debt of more than Rs.1 million must do so through the DRT. The RDB Act ousted the jurisdiction of all courts (with the exception of the Indian Supreme Court, and High Court in certain circumstances which are inapplicable here) to hear a claim for a debt by a bank above Rs.1 million (section 18) and provided for the automatic transfer of any qualifying claim before the civil courts to the relevant DRT upon its establishment (section 31). Section 22(1) of the RDB Act provides that:

“The [DRT] and the [DRAT] shall not be bound [by] the procedure laid down by the Code of Civil Procedure, 1908 …, but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the [DRT] and the [DRAT] shall have powers to regulate their own procedure including the places at which they shall have their sittings.”

Justice Singhvi refers to a decision of the Division Bench of the Bombay High Court in Harshadrai O. Modi v Bank of India (2002) 4 Maharashtra Law Journal 492 in which the court held that it could execute a judgment which the respondent bank had obtained in the Queen’s Bench Division of the High Court of England and Wales. The court stated at § 6 of its judgment that:

“… section 22 of the RDB Act … came up for consideration by the Apex Court [the Supreme Court of India] in the case of I.C.I.C.I. vs. Grapco Industries Ltd. and ors. reported in AIR 1999 SC 1975 wherein paragraph 11 the Apex Court has clearly observed that section 22 does not mean that the [DRT] will not have jurisdiction to exercise the powers of a Court as contained in the Code of Civil Procedure, rather, the [DRT] can travel beyond the Code of Civil Procedure. …”

When the DRT makes a final order, the Presiding Officer of the DRT is required to issue a certificate of recovery (“Recovery Certificate”) to the Recovery Officer for the amount specified in the certificate. Enforcement within all but two (Jammu and Kashmir) of the states within India is undertaken by the Recovery Officer.

There appears to be no previous case law about the recognition of final orders of the DRT under the 1933 Act, and the parties have not been able to find examples of previous attempts, whether successful or unsuccessful, to register such orders here.

The arguments advanced on behalf of Dr Mallya, in his skeleton and oral submissions, under this heading may conveniently be listed as follows:

The RDB Act provides in section 19(20) that:

“The tribunal may, after giving the applicant and the defendant an opportunity of being heard … pass interim or final order as it deems fit which may include order for payment of interest from the date on which payment of the amount is found due ...”

The DRT’s final order is a “judgment” as defined in section 11 of the 1933 Act because it is an order made by a tribunal in civil proceedings.

Section 19(22) of the RDB Act provides that the DRT Presiding Officer “shall issue a certificate of recovery along with the final order, under sub-section (20), for payment of debt within interest under his signature to the Recovery Officer for recovery of the amount of debt specified in the certificate”. The modes of recovery available to the Recovery Officer are specified in section 25 and include attachment and sale of movable or immovable property, taking possession of property that is subject to a security interest, arrest and detention in prison and appointment of a receiver.

Recovery by the Recovery Officer pursuant to a Recovery Certificate is the only means by which a DRT final order can be enforced. A DRT claimant does not, and cannot, enforce the final order him/herself at all. Thus the Recovery Certificate procedure provides, as counsel for Dr Mallya put it, “a compulsory, exclusive and bespoke procedure for enforcement of debts” which is a specific form of statutory execution outwith the ordinary court process for execution.

One specific illustration of this is that a successful claimant can petition to wind up an Indian company only because specific provision is made in that regard in section 19(22A) of the RDB Act (“Any Recovery Certificate issued by the Presiding Officer shall be deemed to be a decree or order of the Court for the purposes of initiation of winding up proceedings against a company registered under the Indian Companies Act …”).

This point was reflected, Dr Mallya said, in the fact that as recorded in the DRT Presiding Officer’s letter of 27 July 2017, it was the Recovery Certificate which the Claimants’ Indian lawyers said they wished to register in England. The letter stated:

“… the Consortium of Bankers led by State Bank of India have expressed their intention to register the said Debt Recovery Certificate with the Hon’ble Queen’s Bench Division, the Royal Courts of Justice, London, United Kingdom for the purposes of enforcement of the Debt Recovery Certificate in United Kingdom as against the respondents and their assets, if any, in the United Kingdom”

It is pertinent to note, though, that the letter went on to say:

“For the said purposes, State Bank of India has filed an affidavit praying for sealing of the Final Order and the amended Debt Recovery Certificate in terms of the provisions of the Foreign Judgments (Reciprocal Enforcement) Act 1933 and The Reciprocal Enforcement of Judgments (India) Order, 1958 as applicable in United Kingdom.” (my emphasis)

Further, the actual application to register in this court relates to both the DRT Judgment dated 19 January 2017 and the Amended Recovery Certificate dated 10 April 2017.

The first limb of Dr Mallya’s submission under this heading is that only the Recovery Certificate and not the DRT Judgment itself can be “enforced by execution” in India within section 2(1)(b) of the 1933 Act.

The difficulty with this argument is that on the footing that the Recovery Certificate is itself a form of execution of DRT final orders, such orders can by that means be “enforced by execution” in India. Thus the DRT Judgment in the present case stated, in the portion headed “Order” at the end of the judgment:

“Present OA [Original Application] stands allowed as prayed for with costs in following manner

a)

Defendants No. 1 to 4 jointly and severally shall pay a sum of Rs. 6203,35,03,879=42 … with further interest at the rate of 11.50% p.a with yearly rests from the date of the application till the date of complete realization.

…

c)

In the event of failure of defendants to pay the said OA amount, the applicant bank is at liberty to sell the hypothecate/mortgaged movables/immovables properties described in schedules of the main petition according to law as sought by the applicant bank in the OA.

d)

The Applicant Banks are also at liberty to proceed against the person and properties of the defendants 1 to 4 in execution proceedings;

e)

Applicant Bank shall file latest Memo of calculation of OA amount together with interest, costs etc., ... to enable the office to prepare Recovery Certificate for the amount to be paid by the Defendants 1 to 4 to the Applicant Banks

f)

Office is directed to issue Recovery Certificate as sought by the Applicant Banks in the OA and do the needful as required under law forthwith.” (my emphasis)

It thus appears that the DRT itself treated the Recovery Certificate process as a means of execution of its own judgment. The expert witness who gave evidence on Indian law on behalf of Dr Mallya, retired High Court judge Justice Pana Chand Jain, referred to it as the only method of “execution” available in respect of a DRT order, and as being a “separate execution/enforcing mechanism” from those used by the ordinary courts.

The question then becomes whether the fact that a DRT order can be enforced in India only through this separate and exclusive execution process provided for under the RDB Act, as opposed to the standard process used for court judgments, means that a DRT order should be regarded as incapable of being “enforced by execution” in India within section 2(1)(b) of the 1933 Act. I see no reason why it should be so regarded. The Recovery Certificate is in substance a form of execution for the enforcement of DRT orders. The fact that it is distinct from the ordinary process of execution does not take it outside the scope of section 2(1)(b) of the 1933 Act. On the contrary, it would be perverse if the fact that the Indian legislature has provided for a special court-led process for the effective execution of DRT judgments meant that they could not be recognised in the UK.

The second limb of Dr Mallya’s submission – on which he would also need to succeed – is that if and to the extent that the Recovery Certificate itself is enforceable by execution in India, it falls outside the 1933 Act regime because the rights in a Recovery Certificate are vested in the Recovery Officer and not in the successful claimant on whose behalf the Officer is seeking to recover the debt. The Recovery Certificate grants powers to the Recovery Officer to enforce the certificate for the benefit of the claimant. However, the rights conferred by the Certificate are the rights to receive the sums stated in it, and those rights are vested in the claimant: the Recovery Officer is merely acting as a collection or enforcement agent on the claimant’s behalf.

For both of these reasons, Dr Mallya’s contentions under this heading fail.

Justice Jain explains that:

Justice Jain’s opinion is that, unlike the position with an order of the Indian High Court, there is no legal basis to seek to enforce a judgment of the DRT outside India (or even in those parts of India to which the RDB Act does not apply such as the states of Jammu and Kashmir) because:-

Therefore, Dr Mallya argues, enforcement in England of the DRT Judgment is impermissible and so the Registration Order, being the precursor to such enforcement, is impermissible and ought to be set aside. Alternatively, this is a reason to stay enforcement permanently, since to permit enforcement in England would be contrary to the RDB Act and DRT Regulations which regulate the DRT Judgment.

The Claimants argue that this is not a point that the English court should seek to determine: it is for the Indian courts to decide whether, as a matter of Indian law, DRT judgments are unenforceable outside India. If the point were a good one (which the Claimants do not accept) the correct course of action would have been for Dr Mallya to apply for the equivalent of an anti-suit injunction in India to restrain the Claimants from seeking to enforce the DRT Judgment abroad.

In any event, the Claimants say that the correct analysis is that, whilst the Recovery Officer has no jurisdiction to enforce outside of India, or in the two Indian states of Jammu and Kashmir, enforcement of a judgment of the DRT by a foreign court is permissible:

The Claimants refer also to the statement by their expert on Indian law, Justice Singhvi, that “In my view there can be no manner of doubt that the orders passed by the Courts and Tribunal in India including the DRT can be executed / enforced in England and Wales and vice-versa”.

Moreover, the Claimants say, by clause 22(iii) of the Personal Guarantee Dr Mallya agreed that the Claimants could bring proceedings to enforce a judgment of a tribunal at Bengaluru against Dr Mallya in the courts of any other jurisdiction outside India. Thus, the Claimants say, he contracted out of any alleged Indian domestic law limitations on foreign enforcement of the DRT Judgment.

In my view none of the provisions relied on by Dr Mallya establishes any prohibition under Indian law on a successful DRT claimant seeking the recognition and enforcement abroad of a DRT order.

Further, the scope of the powers given to Recovery Officers to enforce DRT orders, and any question about the territorial or extraterritorial extent of their powers, is irrelevant to the question of recognition under the 1933 Act. The 1933 Act gives effect to a scheme for the international recognition and enforcement that is entirely independent of whatever enforcement powers and processes may exist under the domestic laws and procedures of the participating nations. There is no requirement under the 1933 Act to demonstrate that the foreign judgment sought to be enforced can be enforced extraterritorially by claimants or court officials in the judgment’s country of origin. The only requirements are that the foreign judgment satisfy the requirements set out in the 1933 Act itself and the implementing statutory instruments, including the requirement (which I have found to be satisfied) that the judgment be capable of enforcement in the state of origin.

It is common ground that as a matter of law the DRT has unlimited pecuniary jurisdiction, save for a lower limit which is not relevant in this context. The question is, however, whether the requirements of paragraph 4(d) of the 1958 Order in Council were complied with in the present case.

The DRT Judgment was sealed on every page with the court seal, which is in the form prescribed by central government and simply states the name of the tribunal.

Paragraph 18(iv) of the DRT Judgment stated:

“… under Section 17 of Chapter 3 of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDDB & FI Act), this Tribunal is vested with exclusive jurisdiction, powers and authority to entertain and decide applications from the Banks for recovery of debts due to such banks. In fact, under Section 18 of the same chapter, the jurisdiction, power and authority of all other Courts except the Supreme Court and High Court under Article 226 and 32 [which relate to constitutional issues], are barred in relation to recovery of debts due to banks. …”

On 27 July 2017, at the request of the Claimants, the Presiding Officer of the DRT, who had also issued the DRT Judgment itself, provided a letter in a form (drafted by the Claimants) which it is necessary to quote in full:

“A Consortium of Bankers led by State Bank of India, a statutory corporation had filed an Original Application under OA 766/2013 interalia seeking adjudication of Debt and issuance of Debt Recovery Certificate against M/s Kingfisher Airlines Ltd., a Public Limited Company, M/s United Breweries Holdings Ltd., a Public Limited Company, Dr. Vijay Mallya son of late Sri Vittal Mallya and M/s Kingfisher Finvest (India) Ltd., This Debt Recovery Tribunal constituted and established under the Recovery of Debts due to Banks and Financial Institutions Act 1993 (now known as the Recovery of Debts and Bankruptcy Act, 1993) hereinafter called the Act, after adjudication of the claim had passed a Final Order dated 19.01.2017 and used an amended Debt Recovery Certificate dated 10.04.2017 under No.11395 as against the said respondents and their assets for a sum of Rs.6203,35,03,879.42/- (Rupees Six Thousand Two Hundred and Three crores Thirty five Lakhs Three Thousand Eight Hundred and Seventy Nine and Paise Forty Two Only) with interest and costs as stated therein.

Presently, the Consortium of Bankers led by State Bank of India have expressed their intention to register the said Debt Recovery Certificate with the Hon’ble Queen’s Bench Division, the Royal Courts of Justice, London, United Kingdom for the purposes of enforcement of the Debt Recovery Certificate in United Kingdom as against the respondents and their assets, if any, in the United Kingdom. For the said purposes, State Bank of India has filed an affidavit praying for sealing of the Final Order and the amended Debt Recovery Certificate in terms of the provisions of the Foreign Judgments (Reciprocal Enforcement) Act 1933 and The Reciprocal Enforcement of Judgments (India) Order, 1958 as applicable in United Kingdom.

This Debt Recovery Tribunal after considering the said request made by way of affidavit, hereby confirms by way of sealing as required under UK Act, that this Debt Recovery Tribunal constituted and established under the Recovery of Debts due to Banks and Financial Institutions Act 1993 (now known as the Recovery of Debts and Bankruptcy Act, 1993) has been vested under Section 1(4) of the aforesaid Act, with no upper limit on the pecuniary jurisdiction but with lower limit of Rs.10 lacs on pecuniary jurisdiction. This Tribunal has exclusive jurisdiction to entertain applications filed by the banks and financial institutions for recovery of debt due to them for any amount above Rs.10,000,000/- (Rupees Ten lakhs), adjudicate and issue Recovery Certificate.

Yours truly,

[signature]

(K. Srinivasan)

Presiding Officer

Debt Recovery Tribunal

Bengaluru”

Each page of the letter was sealed with the seal of the DRT.

Paragraph 4 of the 1958 Order in Council applies the 1933 Act to the Indian courts specified in subparagraphs (a) to (c) together with:

“(d)

All other Courts whose civil jurisdiction is subject to no pecuniary limit provided that the Judgment sought to be registered under the said Act is sealed with a seal showing that the jurisdiction of the Courts is subject to no pecuniary limit”

The parties agreed that it is appropriate to give the 1933 Act and the 1958 Order in Council a purposive interpretation to the extent compatible with established principles. Those principles are that in interpreting a statute the aim is to establish objectively the intention of the legislature. The primary tool for that task is the text of the legislation. Prima facie, the meaning of that text is to be taken to be that which corresponds to the plain or literal meaning conveyed by the words used given their ordinary meaning as words and the grammar of the provision being construed. However, any provision, word or phrase is not to be construed in isolation but in the context of the surrounding provisions, words or phrases and in the light of any discernible legislative purpose where it is clear that the legislation has been enacted to remedy a particular mischief. These principles can be derived from the following authorities:

However, the parties disagreed as to how those principles are to be applied in the present case. The Claimants emphasised that the purpose of the 1958 Order in Council is to extend the reciprocal enforcement of judgments in England and India under the 1933 Act. Dr Mallya made the point that under the CPR and its predecessors, registration under the 1933 Act is normally effected by masters on a without notice basis under CPR 74.3, subject to a right for the judgment debtor to apply within a limited time to set the registration aside. The master must therefore be able to see from the face of the judgment sought to be registered that the relevant court or tribunal has unlimited pecuniary jurisdiction. In any event, the legislation should not be construed so as to nullify an express statutory requirement.

Viewing the matter first at this very general level, whilst it may well be the case (the parties did not have the relevant materials to hand) that the Rules of the Supreme Court in 1958 provided, as the rules do now, for the first stage of 1933 Act recognition to be dealt with ex parte by a master, that feature is not necessarily inherent in either the 1933 Act or the 1958 Order in Council: and it is questionable whether the prevailing rules of court at the time or now provide a real guide to the correct manner of interpretation of the legislation.

More broadly, the general aim of the legislation is of course the mutual recognition of judgments of the courts of reciprocating nations, and considerations of comity would suggest that it would be wrong to take an unduly narrow or technical approach to its interpretation.

Specifically in relation to paragraph 4, Dr Mallya submits that in order to make the position clear to the master at the without notice stage, it is necessary either for the seal itself to show, in the sense of itself stating expressly, that the jurisdiction of the tribunal is not subject to pecuniary limit; or for this to be apparent from a combination of the terms of the order and a seal: meaning, in practice, a recitation in the order as to the jurisdiction of the tribunal, which is then subject to sealing.

In the present case, the unlimited jurisdiction of the DRT was in my judgment apparent from two matters, either of which was sufficient to satisfy the requirements of paragraph 4(d).

First, it was at least clearly implicit in the statement in paragraph 18(iv) of the DRT Judgment quoted above – that the tribunal was vested with exclusive jurisdiction, powers and authority to entertain and decide applications by banks for recovery of debts due to them, to the exclusion of the powers of the ordinary courts – that it had unlimited pecuniary jurisdiction in respect of such claims. It could hardly be supposed that debts higher than a certain amount could not be recovered at all, whether in the DRT or in the ordinary courts. The only rational reading of this statement is that the DRT has unlimited pecuniary jurisdiction in respect of such claims. The page of the DRT’s judgment containing this statement (like every other page) was stamped with the tribunal’s seal, thus in my view satisfying the requirements of paragraph 4(d) of the 1958 Order in Council.

Secondly, the Presiding Officer’s letter of 27 July 2017 recorded that SBI had “filed an affidavit praying for sealing of the Final Order and the amended Debt Recovery Certificate in terms of the provisions of the [1933 Act] and the [1958 Order in Council] as applicable in the United Kingdom” (my emphasis) and went on to state that the DRT “hereby confirms by way of sealing as required under UK Act” that the DRT has been vested under the RDB Act with no upper limit on its pecuniary jurisdiction and had exclusive jurisdiction to entertain applications by banks and financial institutions to recover debts due to them for any amount above Rs 1 million. The letter itself was stamped on each page with the same seal as the DRT Judgment.

In these circumstances it is logical to view the Presiding Officer as having issued the letter as an adjunct to the DRT Judgment and the amended Recovery Certificate, thereby bringing about the sealing “of” those documents in accordance with the UK legislation which had been drawn to his attention. The DRT Judgment and (if necessary) the Recovery Certificate are thus to be read in conjunction with the Presiding Officer’s letter when considering the application of paragraph 4(d) of the 1958 Order in Council; and on that basis also they satisfied paragraph 4(d).

For these two independent reasons, I consider that the DRT Judgment falls within paragraph 4 and qualifies for recognition and enforcement pursuant to the 1933 Act.

Justice Jain provided evidence that the DRT (notwithstanding the Government’s power to make rules for the conduct of the DRT) does not have a procedure available to it to render its judgments compliant with paragraph 4(d) of the 1958 Order in Council because neither the RDB Act, nor the DRT Rules or DRT Regulations specified by the Central Government of India provide for the DRT to certify its own judgments or orders in the manner prescribed by paragraph 4(d) of the 1958 Order in Council. The Presiding Officer’s signing of the 27 July 2017 letter in the form requested by the Claimants was an administrative act that he had no power to perform.

Justice Singhvi expresses the opposite view, noting that Section 19(25) of the RDB Act provides that the DRT “may make such orders and give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or to secure the ends of justice”. Justice Jain responds that:-

The Claimants suggest that this is a question of Indian law which the English court need not determine. If the point were a good one, the correct course of action would have been for Dr Mallya to apply for an order from the Indian courts setting aside the ruling contained in the letter of 27 July 2017 and/or declaring that the action of the Presiding Officer in affixing the seal of the DRT to that letter was ultra vires. In any event, the Claimants say:

I agree with the Claimants that as a general proposition it is not appropriate, or under the 1933 Act and 1958 Order in Council necessary, for the English court to inquire into the vires of judges of the foreign court whose judgment is sought to be recognised. It is possible to conceive of an extreme case where a purported act was plainly without any possible authority and where a different approach might be taken, but the present case does not seem to me to fall in that category.

In any event, on the basis that (as I indicate under subheading (c) above) the Presiding Officer’s letter should be regarded as an adjunct to the DRT Judgment, it appears to me to have been an order or direction which he was empowered to give pursuant to Section 19(25) of the RDB Act.

Moreover, even if the Presiding Officer’s letter might be regarded as an administrative act, rules 22.1 to 22.3 of the Debts Recovery Tribunal (Procedure) Rules 1993 states that:

“(1)

The Registrar shall have the custody of the records of the Tribunal and shall exercise such other functions as are assigned to him under these rules or by the Presiding Officer by a separate order in writing.

(2)

The official seal shall be kept in the custody of the Registrar.

(3)

Subject to any general or special direction by the Presiding Officer, the seal of the Tribunal shall not be affixed to any other order, summons or other process save under the authority in writing from the registrar.”

The opening words of rule 22.3 imply that the Presiding Officer has the power to give a special direction for the use of the court seal. On that basis it seems to me that the issue of the letter of 27 July 2017 was within his powers. More generally, I have seen no reason to take the view that the Presiding Officer is unable to conduct administrative (as opposed to judicial) functions without the need for explicit statutory authorisation for each and every such act.

For all these reasons, I am unable to accept Dr Mallya’s contentions that the DRT or its Presiding Officer lacked the power or means to make its judgments capable of enforcement under the 1933 Act/1958 Order in Council or to issue the letter of 27 July 2017.

As appears from the chronology in section (B) above, the current position (as at the time of the hearing before me) in relation to Dr Mallya’s proposed appeal to the DRAT is that:

It is common ground that if the DRAT were to allow an appeal to proceed, it would be likely to take 18 months to conclude. The DRAT’s decision would be amenable to review by the High Court of India, a process which would be likely according to Justice Jain to take 1-2 years. The unsuccessful party could seek permission to appeal to the Supreme Court of India, which (if permission were granted) would take 3-5 years to be heard and disposed of.

Further, Dr Mallya’s position as made clear in oral argument is that registration or enforcement of the DRT Judgment in England and Wales should in any event await the outcome of the Bombay High Court proceedings, because that court’s order would override any decision of the DRAT.

The position in relation to Dr Mallya’s application to the Bombay High Court is that:

It is common ground that if the Bombay court were to assume jurisdiction, it is likely that Dr Mallya’s claim there would take 7 years to be determined, excluding any appeal to the Supreme Court of India.

Section 5 of the 1933 Act permits the court to set aside the registration or adjourn the application to set aside the registration:

“If, on an application to set aside the registration of a judgment, the applicant satisfies the registering court either that an appeal is pending, or that he is entitled and intends to appeal, against the judgment ...”

The first question arising is whether Dr Mallya’s proposed appeal to the DRAT or his existing claim in the Bombay High Court engages this provision.

At present there is no appeal pending in the DRAT and Dr Mallya is well out of time for bringing an appeal. He nonetheless says he is “entitled” to appeal within the meaning of section 5.

The Inner House of the Court of Session in Scotland had to consider a similar issue in Gillian Walton [2012] CSIH 53, where an inept (invalid) application had been filed for permission to appeal out of time from the judgment sought to be registered. After quoting section 5, Lord Carloway said:

“2 … It is clear from the terms of that subsection that the court only has power to set aside the registration of a judgment or to adjourn the application to set it aside in two specified situations. The first is where the applicant seeking such a remedy satisfies the court that an appeal is pending. As at the date of the hearing before Lady Smith it appears that the reclaimer had submitted a form, which subsequently proved to be inept, seeking leave to appeal at a time when he accepted that he was out of time to do so. In these circumstances we are not persuaded that at the date of the hearing before the Lord Ordinary an appeal was pending. We consider that the circumstances in which an appeal can be described as pending are limited to the following situations: firstly, where an applicant has lodged a timeous appeal and that appeal has not been determined or, secondly, where the court has allowed an appeal to be received late and the appeal is awaiting determination. It does not include the circumstances of the present case where an inept application had been made for leave to appeal. Nor does it cover a situation where a valid application has been made for leave to appeal late but that application has not been determined. Until such an application has been granted no appeal is pending. The second situation to which section 5(1) applies is where the applicant is entitled to appeal and intends to do so. The applicant must satisfy the registering court about both of these requirements before the court may consider whether to exercise its discretion in his favour. Although the reclaimer advised the Lord Ordinary that he intended to appeal if granted leave, it cannot be said that he was entitled to appeal for similar reasons to those outlined above in respect of pending appeals. For the foregoing reasons we are satisfied that the Lord Ordinary did not err when she concluded that the discretionary power under section 5 was not available to her.

3 Even if section 5 had been applicable in this case the reclaimer would not have succeeded. The fact that an appeal is pending does not preclude the registration of a judgment, (section 1(3) of the 1933 Act).Section 5 merely provides the court with a discretion not to register the judgment or to delay its registration where such an appeal is pending or where the appellant is entitled and intends to appeal. In the present case the reclaimer was aware of the proceedings. He took part in them. Initially he was represented by solicitors but dispensed with their services. He accepts that he was advised to obtain alternative representation and that judgment might pass against him if he failed to do so. In the action at his instance he was aware of the court order ordaining him to find caution and failed to do so. He was aware of the consequences of such failure. Moreover in 2010 he made representations about the expenses of the action at the instance of the petitioner indicating that he was well aware of the first judgment against him in that action and of the possibility of further judgments relating to expenses. He failed to appeal against the judgments within the time limit for such appeals and he has not yet been granted leave to appeal. He took no action to seek leave to appeal late until more than one year had elapsed after judgment had been pronounced against him and only then after the petition for registration of the judgments was served upon him. The reclaimer's stated fear that any payment made by him after registration of the judgment may be difficult to recover from the petitioner is ill founded. If he is granted leave to appeal and the court in New South Wales suspends the judgments pending determination of the appeal, the reclaimer will be able to seek suspension of any diligence undertaken following upon registration of the judgments. Moreover, if the judgments are satisfied by the reclaimer making payment to the petitioner and the reclaimer succeeds in a subsequent appeal, he could seek repayment from the petitioner and, if necessary, seek redress in the court of New South Wales. In that regard he is in no different position from anyone else against whom there is a final foreign judgment and who successfully appeals against that judgment. Section 1(3) of the 1933 Act deems a judgment to be final and conclusive “notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court”. Had we been required to do so, we would not have exercised our discretion under section 5 in favour of the reclaimer.” (my emphasis)

Walton is not binding on this court. Moreover, as Dr Mallya points out, the court’s observations on the position where a valid application for permission to appeal has been lodged, and as to when a person is “entitled” to appeal, are both obiter. However, I consider them, with respect, to be correct. An appeal cannot be regarded as “pending”, as a matter of ordinary language, in circumstances where no valid and timely appeal has been lodged. Nor in my view can a person be regarded for the purposes of section 5 as “entitled” to appeal in circumstances where the time for appealing has expired without an appeal having been filed or an application for permission to appeal having been granted. Were it otherwise, a respondent to an application to register a judgment could claim to be entitled to appeal however long had elapsed since the relevant appellate deadline.

For those reasons, I do not consider that the court has the powers set out in section 5 in relation to Dr Mallya’s proposed appeal to the DRAT.

Further, Dr Mallya’s claim in the Bombay High Court is not an appeal from the DRT Judgment, and I do not consider it can be brought within section 5 on the basis that if successful it would have the effect of superseding the DRT Judgment. Section 5 refers specifically to an “appeal … against the judgment” rather than to a separate action which, if successful, would allegedly have a supervening effect on the judgment.

Nevertheless, I go on to consider the circumstances more generally, including the apparent prospects of success of the proposed DRAT appeal and the Bombay High Court claim, (a) in case I am wrong in any of the conclusions set out above and (b) in view of Dr Mallya’s request that the court grant a stay in the exercise of its case management powers.

As to the applicable standard, the Claimants say that even if section 5 applied, a foreign judgment should be treated in the same way as an English judgment. Execution should not be stayed except where there are such special reasons as would give rise to the staying of an English judgment. They cite for this proposition Ferdinand Wagner v Laubscher Bros. & Co. [1970] 2 QB 313 at 317D-G, 319A-D and 319H-320F, and SA Consortium General Textiles v Sun and Sand Agencies Ltd. [1978] QB 279 at 298A-C, 306B-307C, 309D-E. Though, as Dr Mallya points out, the facts in those cases were very different from those of the present case, the Court of Appeal in Ferdinand Wagner made the following statements of general application:

“I am afraid that I cannot agree with the judge's approach to this matter. He seemed to have regarded it as if there was a summons under R.S.C., Ord. 14 in which the question is whether there is an arguable point. But I think this procedure to enforce a foreign judgment is quite different from Ord. 14. Here is a German judgment which is equivalent to an English judgment. If the plaintiffs had obtained an English judgment, we should not, for one moment, grant a stay simply because the defendants had brought a cross-claim in another action against the plaintiffs. So here we should not stay execution in this German judgment simply because Laubscher's have brought a cross-action in England against Wagner.” (p317 D-E per Lord Denning MR)

“For those reasons I agree entirely that this appeal should be allowed and would only add a few words on a matter of general principle. Section 2 (2) of the Foreign Judgments (Reciprocal Enforcement) Act, 1933 , makes it plain that judgments of any foreign court to which the Act has been applied by Order in Council when registered rank exactly the same as a judgment of a court in this country. Accordingly whilst, of course, R.S.C., Ord. 47, r. 1 may in certain circumstances be relied on when it is sought to obtain a stay on a foreign judgment in the same way as it might in certain circumstances be relied upon when a stay is sought of a judgment of one of the courts of this country, that can only successfully be done when there are "special circumstances which render it inexpedient to enforce the judgment or order." For my part I too, with all respect to the approach of the judge in chambers, consider the tests to be applied when an application is made under R.S.C., Ord. 47, r. 1 are quite different from those applicable to Ord. 14 proceedings. In the present case there are no special circumstances whatsoever that would render it inexpedient to enforce the German judgment and many that tend the other way.” (p319A-C per Sachs LJ)

A stay of an English judgment is at least in practice the exception rather than the rule. As summarised in White Book (Vol 1), note 52.16.3, in Leicester Circuits Ltd v Coates Brothers plc [2002] EWCA Civ 474 §§ 12 and 13, the Court of Appeal stated that, while the general rule is that a stay of judgment will not be granted, (1) the court has an unfettered discretion, (2) no authority can lay down rules for its exercise, (3) the proper approach is to make the order which best accords with the interests of justice, (4) the court has to balance the alternatives to decide which is less likely to cause injustice, and (5) where the justice of letting the general rule take effect is in doubt, the answer may well depend on the perceived strength of the appeal. The Court added that it is relevant that the appellant may be unable to recover from the respondent the sum awarded in the event of judgment being set aside on appeal. In Department for Environment, Food and Rural Affairs v Downs [2009] EWCA Civ 257 §§ 8 and 9, a single Lord Justice explained that “solid grounds” have to be put forward by the party seeking a stay. Those reasons are normally of some form of irremediable harm if no stay is granted because, for example, the appellant will be deported to a country where they allege they will suffer persecution or torture, or because a threatened strike will occur or because some other form of damage will be done which is irremediable; but it is unusual to grant a stay to prevent the kind of temporary inconvenience that any appellant is bound to face because they have to live, at least temporarily, with the consequences of an unfavourable judgment which they wish to challenge in the Court of Appeal.

Justice Jain expresses the view that Dr Mallya’s appeal is likely to succeed, highlighting five particular points as sufficiently strong, and that each of the three bases of the Bombay claim is strong. He also states that Dr Mallya’s Writ Petition in the High Court of Karnataka, to challenge the DRAT’s interim order of 28 March 2018 requiring a pre-deposit as a condition of advancing the appeal, has good prospects of success on the basis that the DRAT erred on fundamental grounds.

The Claimants point out that there would appear to be no realistic prospect of Dr Mallya depositing Rs.3,101 crores with the DRAT himself, although he states that he has procured UBHL to file applications for permission to sell shares and assets that have been attached. There is a dispute between the experts as to whether or not the pre-condition of a deposit of at least 25% of the DRT Judgment can be waived in its entirety. Even if the deposit sum were lodged or waived, the Claimants say Dr Mallya’s application for condonation of the delay is extremely unlikely to succeed, since there was no good reason for the 212-day delay in Dr Mallya filing his appeal and the DRAT in its order of 28 March 2018 said: “… Appeal was kept under objections for more than a period of one year without any rhyme and reason… Possibility of delaying tactics cannot be ruled out”. Justice Singhvi’s view is that the DRAT will not exercise its discretion under s.20(3) to condone Dr Mallya’s delay in filing his appeal.

The grounds Dr Mallya has put forward for condonation of the substantial lateness of his proposed appeal largely relate to other matters which are said to have occupied his time, and alleged difficulties in communicating with his lawyers in India by reason of his current inability to leave the UK due to the extradition proceedings. These do not appear convincing, and based on the evidence as a whole, Dr Mallya’s chances of being permitted to pursue an appeal to the DRAT so long out of time appear to be slim.

As to the underlying merits of the proposed DRAT appeal and Bombay claim, the experts disagree. On the question of coercion, Justice Jain asserts that Dr Mallya has a more than arguable case. However, that view appears to be based essentially on Dr Mallya’s own assertions to that effect. Dr Mallya criticises the DRT for having failed to approach this issue with an open mind, citing various passages from the DRT Judgment which he says show (for example) an excessive focus on the fact that public money was involved. However, the DRT noted that in addition to the lack of any direct documentary support for the allegation of coercion (Judgment §§ 19(i), (ii), (iv)), there was evidence of a series of meetings between the banks and the defendants in none of which UBHL or Dr Mallya is recorded as having raised any objection about their respective guarantees (Judgment §§ 19(i) and (vi)). There was no evidence before me that Dr Mallya had alleged coercion at any time between his signing of the guarantee in December 2010 and the issue of his claim in the Bombay High Court in March 2013. Further, Dr Mallya had at the time he signed the Personal Guarantee already given significant previous guarantees which were released in return for the Personal Guarantee.

Justice Jain states that the taking of the Personal Guarantee was contrary to two circulars issued by the Reserve Bank of India which he says impose binding duties on banks (though that point is disputed). The first of these, the RBI Master Circular on Guarantees and Co-acceptances § 2.2.9(C), states inter alia that “banks should be guided by the following broad considerations”, one of which is that “Where personal guarantees of directors are warranted, they should bear reasonable proportion to the estimated worth of the person. …”. Even assuming that guideline to be binding on the bank, there is no clear evidence before me to suggest a likelihood that it was breached.

Secondly, Justice Jain referred to paragraph 14.2.2(v) of the RBI’s Master Circular “Prudential Norms on Income Recognition, Asset Classification and Provisioning Pertaining to Advances”, which he said “unequivocally stated that no personal guarantees should be required from promoters (like Dr Mallya) when the unit (like KFA) was affected by external factors pertaining to the economy and industry”. However, it appears from the text of the Circular that Justice Jain considerably overstates the matter. Section 14 of the Circular provides for special regulatory treatment for asset classification, subject to compliance with certain conditions, one of which is that “Personal guarantee is offered by the promoter except when the unit is affected by external factors pertaining to the economy and industry”. Thus, on the face of the document, far from unequivocally stating that no personal guarantees should be required from promoters in such circumstances, it merely provides that no such guarantee is necessary in order to obtain a particular asset classification benefit.

In these circumstances, I am not persuaded that Dr Mallya’s proposed appeal to the DRAT, even if allowed to proceed, has apparent merit.

As to Dr Mallya’s claim in the Bombay High Court:

Viewing the matter in the round, the balance in my judgment is clearly in favour of allowing the Registration Order to stand and enforcement to take place.

In all these circumstances, it would not be just either to set aside the Registration Order (even if, contrary to my earlier conclusions, the court has power to do so), to stay enforcement or to adjourn Dr Mallya’s application. Further, I have also concluded earlier that the DRT regulations do not preclude the enforcement of the DRT Judgment in England and Wales under the 1933 Act and decline to order a stay on that ground also.

WORLDWIDE FREEZING ORDER

In addition to his argument that the Registration Order should be set aside, Dr Mallya advances three grounds which he says justify the WFO being set aside:

An applicant for a freezing order has to show “solid evidence” that there is a real risk that any judgment will go unsatisfied (Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft (The Niedersachsen) [1983] 2 Lloyd’s Rep 600, 606-607 per Mustill J).

Relevant factors include the nature of the assets to be frozen, the nature and standing of the defendant’s business, the length of time the defendant has been in business, the defendant’s domicile or residence, the machinery for enforcement in the country of the defendant’s business, the defendant’s credit record, any intention expressed by the defendant about future dealings with his assets, connections between a defendant and other companies which have defaulted on arbitration awards or judgments, and the defendant’s behaviour in respect of the claims (see Gee, “Commercial Injunctions” (6^th ed), § 12-033 and cases cited).

The purpose of a freezing order is to prevent a defendant taking action “designed to ensure” that an existing or future judgment is rendered less effective than would otherwise be the case, including any conduct which would have that effect (whether or not so intended: see R v Home Secretary ex p. Muboyayi [1992] QB 244, 257H, per Lord Donaldson MR, explaining that his phrase “designed to ensure” in Derby & Co Ltd v Weldon (Nos 3 and 4) [1990] Ch 65, 76E did not mean ‘intended’ but rather ‘having the consequence that’).

The Claimants refer to the note at White Book volume 2 § 15-69, which sets the position out at some length but from which the following propositions can be derived:

The Claimants add that where there is a criminal restraint order against a respondent in respect of all his assets, but this does not protect the applicant, Mareva relief may still be appropriate: Faya Ltd v Butt [2010] EWHC 3461 (Ch) at paras 23-25.

Dr Mallya refers to the further summary provided by Males J in National Bank Trust v. Yurov [2016] EWHC 1913 (Comm) §§ 69-70:

“As has been said many times, the purpose of a freezing order is not to provide the claimant with security but to restrain a defendant from evading justice by disposing of assets otherwise than in the ordinary course of business in a way which will have the effect of making itself judgment proof. It is that concept which is referred to by the label “risk of dissipation” …

Based on these authorities [Thane Investments v. Tomlinson [2003] EWCA Civ 1272 at [21][28]; TTMI v ASM Shipping [2006] 1 Lloyd’s Rep 401 at [24]-[27]; and Congentra v. Sixteen Thirteen Marine [2008] 2 Lloyd’s Rep 602 at [49]], the defendants advance seven propositions which the bank does not dispute and which I accept. They were as follows:-

(a)

The claimant must demonstrate a real risk that a judgment against the defendant may not be satisfied as a result of unjustified dealing with a defendant’s assets.

(b)

That risk can only be demonstrated with solid evidence; mere inference or generalised assertion is not sufficient.

(c)

It is not enough to rely solely on allegations that a defendant has been dishonest; rather it is necessary to scrutinise the evidence to see whether the dishonesty in question does justify a conclusion that assets are likely to be dissipated.

(d)

The relevant inquiry is whether there is a current risk of dissipation; past events may be evidentially relevant, but only if they serve to demonstrate a current risk of dissipation of the assets now held.

(e)

The nature, location and liquidity of the defendant’s assets are important considerations.

(f)

Whether or to what extent the assets are already secured or incapable of being dealt with is also relevant.

(g)

So too is the defendant’s behaviour in response to the claim or anticipated claim.”

At least for the purposes of the present case, I do not consider (and the parties did not submit) that there is any material divergence between these formulations of the applicable principles.

The Claimants rely on the same factors as they relied on before Picken J at the without notice stage to show that there was a risk of dissipation:

The Claimants submitted to Picken J, and continue to submit, that although there have been some modest recoveries in India, the total sum outstanding is Rs.98.5bn and Dr Mallya has made no attempt to meet the judgment debt against him. Judgment was delivered on 19 January 2017 for Rs. 62,033,503,879.42 (over Rs.6,203 crores) and by 22 November 2017 the sum outstanding, with interest since 2013, had risen to Rs. 98,530,512,249.42 (over Rs.9,853 crores).

Dr Mallya says that is an unfair characterisation, because he has made several attempts to settle the claims during the DRT proceedings, and several attempts to pay off the judgment debt. He has not buried his head in the sand, but has repeatedly sought to engage with the Claimants, including with an offer made up of assets said to be worth 89% of the judgment debt. Moreover, in the past few weeks he has on two occasions procured UBHL to apply to the courts in India to allocate assets and funds subject to attachments towards settlement with the Claimants.

The Claimants point out that the offers made before the DRT Judgment were at significant discounts to the sums claimed by the Claimants and were not in cash. On 29 March 2016 Dr Mallya, KFAL, UBHL and KFin made an offer on a “strictly without prejudice” basis. This followed shortly after other events discussed below, including a transaction in late February 2016 in which Dr Mallya received US$40 million from Diageo as part of a commercial settlement which was immediately transferred to trusts for Dr Mallya’s children, and Dr Mallya’s departure from India to settle in England. The offer was to settle the then liability of Rs.6,571 crores for Rs.4,000 crores partly in cash and partly in shares in United Spirits Ltd which would be sold. Some of the cash was deposited with the Karnataka High Court and some with Airbus. SBI rejected the offer on 4 April 2016, giving detailed reasons, including concerns about double counting and that parts of the value offered were dependent on the outcome of litigation and other contingencies. In addition, SBI made the point that none of the offerors had disclosed details of their assets on oath.

A revised offer was made on 6 April 2016 of Rs.4,400 crores (to be paid in instalments, pledges of shares and sums held in court) plus an assignment of the proceeds of a claim by UBHL for Rs.2,200 crores in the Bangalore court. Dr Mallya disclosed a statement of his assets and liabilities, in India only, as at 31 March 2010 and 31 March 2011 and promised to do so as at 31 March 2016.

On 7 April 2016 the Supreme Court of India made an order for Dr Mallya to disclose both his Indian and his international assets, and for it to be “indicated … what is the amount he is prepared to deposit before this Court so as to show his bonafide for meaningful resolution”.

On 21 April 2016 Dr Mallya provided a statement of his assets and liabilities in India as at 31 March 2016, and a statement of his assets abroad given to the court in a sealed envelope. He also submitted on affidavit details of sums which could be deposited with the Supreme Court.

The Supreme Court on 26 April 2016 noted that Dr Mallya had in an affidavit indicated that Rs. 1,591 crores could be deposited from sales of shares and a refund from Airbus Industries, and a further Rs.1,329 crores from appropriation from court deposits. It said Dr Mallya had disclosed personal assets to the extent of approximately Rs.20 billion, mostly under attachment by the Income Tax Department. The court noted a submission by Dr Mallya “that the personal guarantee executed by [Dr Mallya] with the banks do not cover his assets abroad” but was critical of Dr Mallya not having disclosed his overseas assets to the banks:

“… in the order dated 7.4.2016 this court had directed [Dr Mallya] to disclose the assets in an affidavit. The only purpose for disclosing the assets was to have a fair idea for the petitioners to go for a meaningful settlement on the proposals made by [Dr Mallya]. There is no petition before us for clarification or modification of order dated 07.04.2016. In the above circumstances, we do not find any tenable objection in disclosing these assets to the petitioners.”

The court also commented:

“We are distressed to note that [Dr Mallya] has not responded to our Order dated 7^th April, 2016 in the letter and spirit of the said Order. He was to show us his bonafides by showing the color of money in the form of a substantial deposit towards dues in the region of 18,000 crores to arrive at a meaningful settlement. It appears there is no bonafides in his offer for settlement. Apparently, statements made by counsel on his behalf were made only as a ploy to gain time”.

It is fair to point out that the court’s order of 7 April 2016 as quoted above was not for Dr Mallya actually to make a deposit but to provide an indication of what could be deposited.

The court directed its Registry to disclose the sealed statement of assets to the petitioners, which was apparently done on 29 April 2016.

On 10 May and 2 June 2016 Dr Mallya made “without prejudice” offers to continue settlement discussions. SBI responded on 10 June 2016 requesting “any alternative concrete proposal for settlement”. The correspondence does not appear to have proceeded any further at this stage.

Dr Mallya says settlement then became very problematic because of provisional attachment orders issued by the Director of Enforcement, a government official, on 11 June 2016 and 3 September 2016 under section 5(1) of the Prevention of Money Laundering Act 2002 in respect of properties owned by UBHL, Dr Mallya and related entities.

Nonetheless, Dr Mallya says that in April 2017 after the DRT Judgment:

“In an appeal challenging the winding up of UB(H)L, and in part settlement of the DRT Judgment:

I caused UB(H)L to apply to the Karnataka High Court on 12 April 2017 for permission to deposit its shareholding in United Spirits Limited and United Breweries Limited (or their value) and other assets with the Court valuing Rs 2,593 crores … That is a value of about £320.3m as at April 2017 and c. £287.2m as at the date of this statement. This was subject to the Enforcement Directorate lifting their attachments over those shares; specifically the Second [Provisional Attachment Order] …”

but that the Enforcement Directorate refused to consent to the proposal.

The Claimants make the points that:

In his second witness statement, Dr Mallya refers to the fact that, much more recently, on 8 March 2018 a memorandum was filed giving a summary of the market value of assets attached/recovered by the Enforcement Directorate and the DRT and available to the court as at 6 March 2018, stating an aggregate value of Rs.12,203 crores i.e. about £1.3 billion at today’s exchange rates. The summary includes shares/assets in India owed by Dr Mallya and companies owned and/or controlled by his family. That memorandum does not, however, represent an offer to the Claimants. It has not been verified by the Claimants, and by far the largest sums listed reflect assets attached by the Enforcement Directorate as opposed to the DRT. Assets attached by the Enforcement Directorate, in particular, cannot be equated to assets offered to or available to the Claimants.

It is also relevant to note in this context that Dr Mallya’s current position is that he is liable under the Personal Guarantee, if at all, only to the extent of his assets in India. That contention was made on his behalf before the Supreme Court of India at the hearing on 26 April 2016, though it does not appear to have been advanced either as a defence before the DRT or in Dr Mallya’s proposed appeal to the DRAT. The argument is supported by Justice Jain on the basis of (a) the RBI Master Circular referred to earlier stating that directors’ personal guarantees should bear a reasonable proportion to the guarantor’s estimated worth and (b) Dr Mallya’s statements that minutes of the Claimants’ consortia meetings have regularly scheduled lists of Dr Mallya’s “Net Means” showing only Indian assets. However, there is no indication of any kind in the Personal Guarantee that it is limited in this way, and Justice Singhvi regards the contention as untenable. Based on the materials before this court, Dr Mallya’s contention does indeed appear to be untenable, and indeed appears to be a wholly unmeritorious attempt to avoid liability.

On 9 May 2017, in Dr Mallya’s absence but after hearing submissions from senior counsel on his behalf, the Supreme Court of India concluded “we find that [Dr Mallya] is guilty of having committed contempt of court on both the counts”, namely that:

The background to these findings is in outline as follows.

On 3 September 2013 the High Court of Karnataka made an “interim order of injunction against the respondents No.1 to 3 from transferring, alienating, disposing or creating third party rights in respect of movable as well as immovable properties belonging to them until further orders in these petitions”. Dr Mallya was respondent no. 3. The order was continued on 13 November 2013.

In February 2016 Dr Mallya was anticipating a receipt of US$40 million from Diageo pursuant to an agreement bringing to an end their existing agreement relating to Dr Mallya’s position at United Spirits Limited. Diageo, which was a major shareholder in the company, agreed to pay Dr Mallya over a 5-year period a total of US$75 million in consideration of, among other things, Dr Mallya resigning his position as Chairman and non-executive director and his agreement to a five-year global non-compete undertaking. Diageo also agreed to release Dr Mallya from certain indemnity obligations. It appears that the first US$40 million was due to be paid to Dr Mallya immediately.

This transaction was publicly announced by a press release issued on the evening (Indian time) of 25 February 2016. The US$40 million was paid earlier the same day into an account which Dr Mallya had opened in December 2015 with the Edmond de Rothschild (Suisse) SA bank. On 24 February, the day before the payment and the announcement, Dr Mallya instructed the bank that the US$40 million should following its receipt be remitted to three accounts in the name of trusts whose beneficiaries were Dr Mallya’s children. Those remittances were made on 26 and 29 February, leaving the account with a zero balance by 31 March 2016.

As noted earlier, the Supreme Court of India on 7 April 2016 ordered Dr Mallya to disclose all his Indian and international assets as at 31 March 2016.

The proceedings in which the High Court of Karnataka had made the interim injunction came before the Supreme Court, which concluded that Dr Mallya had acted in contempt of the restraint order. Counsel for Dr Mallya submitted that the US$40 million received from Diageo was received after the date of the High Court’s 2013 orders, and that the orders did not cover or include any moneys which the respondents might receive in the future. The Supreme Court rejected that argument, stating in its judgment dated 9 May 2017 that:

“On plain reading of the Orders, in our view, whether the properties were in the hands of the concerned respondents on the date when the orders of restraint were passed by the High Court or had come into their hands or under their control at a later point in time, regardless of such qualification all properties whether movable or immovable were governed by the orders of restraint. There is no ambiguity of any sort and the Orders of restraint are quite clear. Consequently, funds amounting to US$ 40 million which came to be under the control of and in the hands of Respondent No.3 [Dr Mallya] were completely covered and governed by said orders of restraint.

…

The explanation that the funds now stand transferred in favour of the trusts over which Respondent No.3 has no control at all, in fact aggravates the extent of violation. It is clear that the funds which were in the control of Respondent No.3 have now been sought to be put beyond the reach of processes of court, which is reflective of the intent.”

The Supreme Court also considered that Dr Mallya had been in breach of its own disclosure order, starting inter alia that “The least that was expected of Respondent No.3 was to disclose relevant facts pertaining to receipt and disbursement of US$ 40 million.”

Having reached the conclusions indicated above, the Supreme Court noted that under its rules of procedure:

“… Respondent No.3 was obliged and duty bound to appear in person in response to the notice issued by this Court in Contempt Petition. Instead, he chose to file application seeking recall of the orders issuing notice. Having considered the matter, we see no reason to recall that order … Respondent No.3 is therefore duty bound to appear in person in the present contempt proceedings.

Since Respondent No.3 has not filed any reply to the Contempt Petition nor did he appear in person, though we have found him guilty of having committed contempt of court, we deem it necessary to give him one more opportunity and also hear him on the proposed punishment. We therefore adjourn matter to 10.07.2017 for hearing Respondent No.3 in person on matters in issue including one regarding the proposed punishment to be awarded to him for contempt of court. … Respondent No.3 may keep his affidavit ready to be tendered on the same day by stating mitigating circumstances, if any and any other submissions he chooses to advance.”

As to these matters Dr Mallya now makes the point, first, that the Supreme Court’s findings of contempt against him were provisional findings only. That point is disputed between the experts.

Read in context, the Supreme Court’s reference to giving Dr Mallya “one more opportunity” referred in my view to a further opportunity to fulfil his duty to appear in person before the court. The Court had already made its findings as to the substance. Dr Mallya had been represented by senior counsel at the hearing on 26 April 2017 and filed affidavit evidence. The Supreme Court stated twice, in the passages quoted above, that it had found Dr Mallya guilty of contempt of court. In any event, Dr Mallya did not avail himself of the further opportunity to appear in person before the court. It may also be noted that Dr Mallya’s review petition refers to the Supreme Court’s order of 9 May 2017 as a “final common judgment and order”. In these circumstances the Supreme Court’s findings should in my view be regarded as final as at 9 May 2017 or, in any event, following Dr Mallya’s failure to appear at the further hearing directed.

In any event, even if these were merely provisional findings, they were reached after consideration of the evidence and submissions, and carry significant weight in the context of this court’s consideration of the freezing order issues.

Secondly, Dr Mallya criticises the Supreme Court’s findings of contempt on their merits. As to the finding of breach of the High Court’s interim injunction, Dr Mallya reiterates his understanding that those orders did not apply to after-acquired assets. Counsel for Dr Mallya made the point that the Claimants obtained the interim injunction in the High Court of Karnataka after failing to obtain a restraint order from the DRT under its own jurisdiction under section 19 of the RBD Act. That section provides among other things for the disclosure of assets “owned by the defendants” and for the DRT to issue directions “to restrain the defendant from dealing with or disposing of such assets and properties disclosed …”. That power must therefore be, Dr Mallya submits, limited to assets currently owned by the defendant. The order of the High Court, which made reference to the proceedings before the DRT, should be read in the same light. The High Court’s order is at least ambiguous in that respect and it was unfair of the Supreme Court to find otherwise. Further, Dr Mallya submits that it was logical for the US$40 million received from Diageo to be transferred to his children because the non-compete covenant in substance prevented them from trading in India using the Mallya name.

There is no indication in the Supreme Court’s judgment that the subtle argument Dr Mallya now advances, in support of the view that the High Court’s order was limited to current assets, was argued before the Supreme Court. It appears to me, with respect, that the Supreme Court was correct in stating that the High Court’s interim restraint order was in clear terms and contained no ambiguity. The correct course would have been for Dr Mallya to seek the consent of the Claimants or the High Court to the proposed transfer of US$40 million.

Even if one were to assume in Dr Mallya’s favour that (a) the Karnataka High Court’s order was ambiguous, (b) Dr Mallya genuinely believed it to permit the transfer of the US$ 40 million, and (c) he was arguably not in contempt of court, the pre-arranged transfer of a significant sum of money away from Dr Mallya’s control, before the public announcement, and at a time when the Claimants were pursuing legal action to recover substantial amounts from Dr Mallya under his Personal Guarantee, was a plain and unjustifiable dissipation of assets of which this court should take account when considering the current applications.

I do not accept Dr Mallya’s submission that his having disclosed the money as part of his children’s assets negates any possible inference of an intention to dissipate. The money is in no way separately identified in or identifiable in the very generally stated lists of Dr Mallya’s children’s assets (which do not list any cash balances approaching the size of the sums transferred to the three trusts: if the sums were included under the rubric of “investments” that is not apparent on the face of the document); and by the time of the disclosure Dr Mallya had already parted with control over it.

Dr Mallya also criticises the Supreme Court’s finding of breach of its own disclosure order, on the ground that as at 31 March 2016, the date as at which he had been ordered to disclose assets, the Rothschild account had a nil balance and was thus not an asset. However, that was in substance a submission made to but rejected by the Supreme Court of India. Counsel for Dr Mallya before the Supreme Court of India submitted that he “was not asked or called upon to disclose all transactions but to disclose the status as it obtained on 31.03.2016 and as such the disclosure by [Dr Mallya] was consistent with the tenor of the order passed by this Court”. The Supreme Court evidently considered the non-disclosure of the account itself to be in breach of its order, noting that “… no details of any bank account with overseas banks were given by Respondent No.3 … The violation by Respondent No.3 regarding non-disclosure becomes more pronounced because it is this very account held in Edmund De Rothschild Bank that was utilized to transmit funds to the tune of US$ 40 Million”. This court should in my view be very slow to differ from the findings of the supreme court of a friendly state as to the interpretation of its own orders. Moreover, as the Claimants point out, the Supreme Court of India will have been able to form a view based on the full evidence and submissions on the matter, of which this court does not have the benefit.

Dr Mallya also makes the point that he filed a review petition challenging the Supreme Court’s findings of contempt. The Review Petition was lodged on 9 June 2017. Justice Jain states that he considers Dr Mallya’s grounds for review to be excellent. The Claimants make the point, however, that the Review Petition contained defects as a result of which it has not yet been registered or listed for a hearing, and thus cannot be regarded as extant. Further, Justice Singhvi, who was a judge of the Supreme Court of India from 2007 to 2013, estimates that 99% of review petitions are dismissed summarily, though he cites no official records or other source to support that statement. In all the circumstances, and whether or not the review petition is technically still extant, it does not of itself in my view shed any significant light on the question of risk of dissipation that this court needs to consider.

In addition to the findings of the Supreme Court of India, on 20 October 2016 the Karnataka High Court held that there was a prima facie case of contempt against Dr Mallya for having created a pledge over shares in UBHL in breach of an oral undertaking given by Dr Mallya to the Court on 26 July 2013. The Court set the matter down for a trial. Dr Mallya applied to set aside that order, but that application was dismissed on 2 December 2016. The matter appears not to have progressed in Dr Mallya’s absence.

The Claimants additionally allege (following disclosure provided by Dr Mallya pursuant to the provisions of the WFO) that Dr Mallya has disposed of other assets worth approximately £400,000 which prima facie appear to constitute breaches of the Karnataka court’s order and/or orders made in similar terms by the DRT, namely (1) the sword of Tipu Sultan, (2) a Maybach 62 car and (3) a Maybach 57 car. In oral submissions the Claimants focussed on the first of these.

The sword of Tipu Sultan is an item of historic importance which Dr Mallya bought at an auction in 2003 for the equivalent of £188,400 and states that he gave away in 2016 as his family members considered that it was bringing him bad luck. Dr Mallya declined to state in correspondence to whom the sword was given. Dr Mallya was unable to put forward any basis for contending that the disposal was not in breach of the Karnataka High Court’s interim injunction, and accepted that it occurred after the Supreme Court had made clear that the injunction covered subsequently acquired assets. However, he stated that in the context of a claim for £1 billion it was not significant and could not be regarded as emblematic of a greater failure. It does, though, appear to me to have been in clear breach of the Karnataka court’s order.

The Claimants also said Dr Mallya appeared also to have failed to disclose various cars in breach of the Supreme Court’s disclosure order of 7 April 2016, and that his purchase of a Ferrari 246 GTS with an estimated value of £480,000 also raised various questions. As to the Ferrari, following the grant of the WFO the Claimants were asked to consent to monthly hire purchase payments of £10,968 for the car. The hire purchase agreement, dated 12 August 2016, is in the name of a Mr Alexander Powell and records payment of a deposit of £135,000. In response to enquiries Dr Mallya disclosed a copy of an agreement between him and Mr Powell also dated 12 August 2016, and explained that he had paid the deposit of £135,000 which “may … have been made from an account in Dubai that has since been closed”. In his second witness statement Dr Mallya said “The Dubai account is with Standard Chartered; the money held in it was disclosed under the Indian Asset Disclosure Order. The account is no longer operative because it was suspended in or around Q3 2016.”

The list of overseas assets which Dr Mallya disclosed to the court in India does not list any cash assets, though it includes an entry for US$ 5.25m of “Investments + Cash equivalents”. No specific bank accounts are identified.

Dr Mallya makes the point that he disclosed the Ferrari as one of his assets pursuant to the WFO, and obtained hire purchase credit through Mr Powell because he could not get credit himself.

It may be the case that the payment of the deposit on the Ferrari was in breach of the Karnataka High Court’s interim injunction. However, this point was not the subject of any detailed argument before me and, overall, I do not consider that the matters relating to the Ferrari carry matters any further on this application.

Finally, the Claimants say there are numerous other assets which have been linked to Dr Mallya in various sources on the internet, but which he denies that he owns. These comprise three yachts, numerous cars and the Mabula Game Reserve in South Africa. The registered/asserted owners are offshore companies and/or trusts. Since these matters are unverified, I do not consider I can take account of them.

The Claimants’ evidence before Picken J was that “Dr Mallya left India on or about 2 March 2016, purportedly for the purposes of spending more time with his family. However, this coincided with applications made by the Applicants on 2 March 2016 in the DRT Proceedings to, among other things, take control of Dr Mallya’s passport as they believed that he was intending to move to London to dispose of certain assets and frustrate their enforcement action”.

Dr Mallya responds that:

However, the evidence indicates that prior to March 2016 Dr Mallya travelled fairly regularly between India and England for business and political reasons. Most of his business interests were in or closely connected with India, most notably United Breweries Group and Kingfisher Airlines. The Claimants say Dr Mallya represented India on the World Motor Sports Council and owns or owned an Indian Premier League cricket team.

As already noted, Dr Mallya was a member of the Council of States between 2002 and 2016 and he says he regularly attended Parliament. The Claimants add that Dr Mallya was in fact Karnataka’s representative when he left India at the beginning of March 2016, resigning only on 4 May 2016. Whilst Dr Mallya has indefinite leave to stay in the UK, he is said to be a non-resident taxpayer.

In contrast with this extensive previous travel to India, Dr Mallya left India on 2 March 2016, shortly after the US$40 million transaction referred to under heading (b) above, and has never returned. He is now fighting extradition proceedings brought by the Indian government, which seeks his return to face criminal charges relating to alleged financial misconduct. In all these circumstances, and even taking account of the fact that Dr Mallya is contesting the alleged grounds for extradition, there are grounds for regarding Dr Mallya as a fugitive from justice.

Dr Mallya is the subject of criminal proceedings in India, which he strenuously denies for the detailed reasons set out in his defence to India’s extradition request. Dr Mallya says he is a person of present good character and standing, and it is not open to the Claimants to seek to draw adverse inferences against Dr Mallya based on untested and untried allegations, particularly where the Fifth Claimant (who is said to be a victim or interested party) did not, and does not, positively assert that Dr Mallya’s conduct impugned in those criminal proceedings was dishonest. Moreover, he says the case of conspiracy levelled against him makes no sense in circumstances where he undertook a personal guarantee liability for the whole amount of the relevant loans.

Following the third principle identified in Yurov, Dr Mallya submits, it is not enough to rely solely on allegations of dishonesty; rather it is necessary to scrutinise the evidence to see whether the dishonesty in question does justify a conclusion that assets are likely to be dissipated.

The Claimants say the fact that independent criminal prosecuting authorities in India have concluded that there is sufficient evidence to level charges of dishonesty against Dr Mallya, and that they are pursuing extradition proceedings in this country, are relevant matters for the court to take into account. They make the following further points:

The findings set out in the decision confirming the provisional attachment order could not accurately be described as mere allegations or (as Dr Mallya submitted) as ‘untested and untried’. They have been made by an adjudicating authority after a lengthy and detailed consideration of evidence and submissions. The adjudicating authority did not have to reach a finding of guilt, but it did have to show “that there was ‘substantially probable cause’ to form opinion that the property under attachment is proceeds of crime”. It is appropriate to take its findings into account as part of this court’s consideration of the issue of risk of dissipation.

It is common ground that Dr Mallya holds his assets through a network of complex ownership structures. He also says that significant assets which the Claimants have identified are owned by other members of his family (including three properties in England of which he says he has the regular use and the super-yacht “Force India”).

However, Dr Mallya makes the points that:

The Claimants refer to the complex arrangements in relation to the three properties mentioned above and allege that Dr Mallya has been less than forthcoming in providing details when pressed. Their evidence indicates that:

The Claimants make the point that in an affidavit of 21 December 2017 Dr Mallya stated that he has no interest in any of the three properties. However, in repossession proceedings before the Central London County Court brought by UBS AG and fixed charge receivers appointed by UBS AG, Dr Mallya had asserted that:

The documents in the Central London County Court case indicate that Dr Mallya has claimed the right to live in the properties by reason of a licence, estoppel or constructive trust as indicated above, but does not appear to have claimed any greater interest in them than that. In these circumstances, I do not conclude there was any inconsistency, or any clear inconsistency, between Dr Mallya’s statements on this particular matter.

More generally, however, in accordance with the statement from Holyoake v. Candy quoted above, the complexity of Dr Mallya’s corporate structures is a matter to be considered in the context of other matters said to indicate risk of dissipation.

Before reaching an overall conclusion about risk of dissipation, I first consider the question of delay because of its potential impact on the question of dissipation.

In Madoff Securities International Ltd v Raven [2011] EWHC 3102 (Comm) Flaux J gave a summary of the relevant principles which was approved by the Court of Appeal in JSC Mezhdunarodny Promyshlenniy Bank v Pugachev (No. 3) [2015] EWCA Civ 906:

“(1)

The mere fact of delay in bringing an application for a freezing injunction or that it has first been heard inter partes, does not, without more, mean there is no risk of dissipation. If the court is satisfied on other evidence that there is a risk of dissipation, the court should grant the order, despite the delay, even if only limited assets are ultimately frozen by it;

(2)

The rationale for a freezing injunction is the risk that a judgment will remain unsatisfied or be difficult to enforce by virtue of dissipation or disposal of assets……In that context, the order for disclosure of assets normally made as an adjunct to a freezing injunction is an important aspect of the relief sought, in determining whether assets have been dissipated, and, if so, what has become of them, aiding subsequent enforcement of any judgment;

(3)

Even if delay in bringing the application demonstrates that the claimant does not consider there is a risk of dissipation, that is only one factor to be weighed in the balance in considering whether or not to grant the injunction sought.”

Delay is a discretionary factor which can be relevant to the overall assessment of (a) the credibility and weight of the applicant’s evidence, (b) whether during the delay the respondent has dissipated assets, and (c) whether the delay has caused any prejudice to the respondent. Delay is not a bar to seeking relief, but is one factor to be weighed in the balance. See Ras Al Khaimah Investment Authority & Ors v Bestfort Development LLP & Ors [2017] EWCA Civ 1014 § 55 per Longmore LJ and Gee, Commercial Injunctions, §§ 2-022 to 2-044.

The Claimants have said there was no material delay, because the risk of dissipation by reason of which they sought the WFO would be triggered by the registration of the DRT Judgment itself. It would arise upon Dr Mallya finding out about the Claimants’ attempts to enforce in England.

Dr Mallya counters that:-

Moreover, Dr Mallya says the Claimants’ own evidence shows they believed Dr Mallya was planning to dissipate assets in England at the latest in March 2016, 18 months before the Claimants came before the English court:

Dr Mallya says the delay is substantial and shows a lack of genuine belief that there is now a risk of dissipation. More generally, Dr Mallya makes the point that apart from the Tipu Sword, the Claimants have no evidence of any actual dissipation of assets (or, if the US$40 million transaction was - contrary to Dr Mallya’s submissions - a dissipation, since early 2016).

The Claimants accept that they sought and obtained asset restraint orders in India against Dr Mallya on 3 September 2013 and 13 November 2013 that were not limited to Dr Mallya’s Indian assets. Their evidence before me is that they did not apply in England prior to the DRT Judgment because they did not realise this court had jurisdiction to grant such an order: “they believed that, until a final order of the DRT was made and registered in England, there was no jurisdictional basis for seeking a freezing injunction from the English Courts”.

Dr Mallya points out that section 25 of the Civil Jurisdiction and Judgments Act 1982 gives the court exactly that jurisdiction, and says the Claimants cannot rely on bad legal advice or a failure to take advice to explain away their substantial delay. I do not accept that submission. Dr Mallya does not suggest that the evidence of the Claimants’ mistaken understanding is untrue. On the basis that the Claimants did have such an understanding, the question is whether it either (a) undermines their case of risk of dissipation or (b) means that as a matter of the court’s overall discretion no relief should be granted. As to (a), a failure to act based on a belief that no jurisdiction exists cannot logically undermine the case for risk of dissipation; as to (b), this is a matter to be weighed in the balance along with all other factors relevant to the exercise of the discretion.

The Claimants also accept that in January 2017 when the DRT Judgment was handed down, they sought and were granted fresh restraint orders in India against Dr Mallya as part of the DRT Judgment. As to the subsequent delay, in particular following the issue in July 2017 of the Presiding Officer’s letter, the Claimants’ evidence is that this occurred because of the need for the First Claimant to obtain consent from the other 12 Claimants to proceed with the application for the WFO, particularly in light of the need to give a cross undertaking in damages, and this delay was drawn to the attention of and considered by Picken J at the without notice hearing. The Claimants add that Dr Mallya cannot (and does not) say he has suffered any prejudice even if the application should have been brought on sooner by the Claimants.

The Claimants make the further point that the fact that asset restraint orders were sought and granted in India evidenced a real concern that Dr Mallya would seek to dissipate his assets; and that Dr Mallya’s conduct since then has done nothing to allay those concerns.

I am satisfied that the Claimants have provided sufficient explanations for what might otherwise be regarded as a delay in applying for the WFO. In circumstances where they had obtained restraint orders in India, had not appreciated that an application could be made in England until the DRT Judgment was obtained and could be registered, and applied as soon after that as they could obtain the necessary instructions (including as to the undertaking in damages), I do not consider that any delay undermines their case on risk of dissipation or otherwise constitutes a ground on which the WFO granted by Picken J should be set aside.

Viewing the matter in the round, I have come to the conclusion that the Claimants have shown solid evidence of a real risk of dissipation of assets that justifies the grant and continuation of the WFO. The particular points I would highlight from the matters considered above are that:

Although I take due account of Dr Mallya’s point that Claimants cannot show further actual dissipations of assets since 2016 (the year of the Diageo transaction and the disposal of the sword of Tipu Sultan), in my judgment that point is significantly outweighed by the combination of the factors highlighted above. These provide solid grounds to conclude that there is a risk of dissipation of assets sufficient to merit granting the Claimants the continued protection of the WFO.

Finally, Dr Mallya says the WFO should be set aside on the grounds of material non-disclosure by the Claimants when they obtained it without notice before Picken J in November 2017.

An applicant for without notice relief must disclose to the court all matters that are material to the application. The test of materiality is an objective one. All matters which are relevant to the ‘weighing operation’ that the Court has to make in deciding whether or not to grant the order must be disclosed: see Gee, Commercial Injunctions, para 9-003, White Book, vol. 1, note 25.1.25.4.

This requirement of full and frank disclosure has been described as a “heavy duty of candour and care”: Brink’s Mat v. Elcombe [1988] 1 WLR 1350, 1359C, per Slade LJ. It is the quid pro quo for an applicant inviting the court to proceed in the absence of another party. Scrutton LJ observed that the duty was “of the greatest importance to maintain”: R v. Kensington Income Commissioners, ex p de Polignac [1917] 1 KB 486, 514.

Where there has been a failure by an applicant to give full and frank disclosure, the general rule is that the injunction obtained must be discharged: Brink’s Mat per Balcombe LJ at 1358C (with whom Slade LJ agreed); and Millhouse Capital UK Ltd v. Sibir Energy plc [2010] BCC 475 §§ 102(1) and 103, per Christopher Clarke J, who added at § 104:

“The obligation of full disclosure, an obligation owed to the court itself, exists in order to secure the integrity of the court’s process and to protect the interests of those potentially affected by whatever order the court is invited to make. The court’s ability to set its order aside, and to refuse to renew it, is the sanction by which that obligation is enforced and others are deterred from breaking it. Such is the importance of the duty that, in the event of any substantial breach, the court strongly inclines towards setting its order aside and not renewing it, so as to deprive the defaulting party of any advantage that the order may have given him. This is particularly so in the case of freezing and seizure orders”.

The court in Millhouse Capital recognised that if there has been culpable non-disclosure, the court nonetheless has a complete discretion and should also consider the prejudice that will occur if the injunction is not renewed. Christopher Clarke J said at § 106:

“The stronger the case for the order sought and the less serious or culpable the non-disclosure, the more likely it is that the court may be persuaded to continue or re-grant the order originally obtained. In complicated cases it may be just to allow some margin of error. It is often easier to spot what should have been disclosed in retrospect, and after argument from those alleging non-disclosure, than it was at the time when the question of disclosure first arose.”

See also Congentra AG v Sixteen Thirteen Marine [2008] 2 Lloyd's Rep. 602 § 64.

The purpose of this rule is to act “as a deterrent to ensure that persons who make ex parte applications realise that they have this duty of disclosure and of the consequences … if they fail in that duty”: Brink’s Mat, at 1358D. As Bingham J commented in Siporex Trade SA v. Comdel Commodities Ltd [1986] 2 Lloyd’s Rep 428, 437:

“If the duty of full and frank disclosure is not observed the Court may discharge the injunction even if after full enquiry the view is taken that the order made was just and convenient and would probably have been made even if there had been full disclosure.”

Dr Mallya makes the following main points in this regard:

The first group of points focusses on the restraint orders which the Claimants had themselves already obtained in India and their delay in applying for a WFO. The restraint order made by the Karnataka court in September 2013 was, however, specifically referred to in Mr Gair’s affidavit in support of the WFO application. Reference was also made to the 2016 application at least so far as concerns Dr Mallya’s passport (see § 153 above). The 2017 DRT Judgment was exhibited to the Claimants’ witness statement in support of their registration application, though not their affidavit in support of the WFO; the latter indicated, however, that the Claimants relied on the former as part of the evidence for the WFO application. The more significant point is that Picken J was not taken to those passages of the DRT Judgment that related to the application for and granting of restraint orders in India.

As a general matter I consider that the court ought, when being asked to grant a freezing order on a without notice basis, be specifically directed to any pre-existing attachment orders granted by a foreign court, particularly when they extend to assets overseas. It would have been preferable here for the DRT’s 2017 attachment orders not merely to have been exhibited but also to have been drawn to Picken J’s attention. Having said that, in the present case I see force in the Claimants’ point that this matter was in context not material and would have been unlikely to assist Dr Mallya. The court already knew about the 2013 interim injunction order and the 2016 application to the DRT. The making of restraint orders by the DRT in 2017 evidences its conclusion that there was a risk of dissipation in the absence of such an order. As at November 2017 Dr Mallya was in England and resisting extradition to India. Unless and until he returns to India there is little that the Indian courts can do to enforce the DRT’s restraint orders in respect of property outside of India. In all the circumstances, I do not conclude that there was a material non-disclosure, and in any event do not consider any non-disclosure sufficiently culpable to merit the discharge of the existing WFO.

As regards the assets caught by the Provisional Attachment Orders made by government bodies in India, the Claimants’ evidence before Picken J disclosed that there had been media reports of court orders attaching bank accounts held by Dr Mallya and his associates. At the hearing before Picken J counsel for the Claimants referred to Dr Mallya’s disclosure of assets in the Indian proceedings ‘most of which he said was under attachment’. The Claimants’ evidence is that at the time of the application for the WFO, they did not know what had been attached and were only generally aware of attachments from newspaper reports.

The attached assets, whose real value has yet to be determined, may be made available to creditors of Dr Mallya in due course under sections 8(5), 8(7) and 8(8) of the Prevention of Money Laundering Act 2002, although this is not automatic. Section 8(8) refers to persons “who may have suffered a quantifiable loss as a result of the offence of money laundering”, and as the Claimants say, it seems inconceivable that a defendant’s assets could be distributed to others before the defendant had been found guilty of the alleged crime (and I accordingly prefer the evidence of Justice Singhvi to that of Justice Jain on that point). The creditors who receive any such benefits will not be limited to the Claimants and so the assets are likely to have to be shared. That will occur only if and when the criminal case against Dr Mallya concludes with a guilty verdict. The evidence indicates that a trial will not occur in Dr Mallya’s absence. Even if Dr Mallya is extradited to India, Justice Singhvi states that the assets are unlikely to be made available to the Claimants for many years. In these circumstances, I do not consider there to have been any material non-disclosure.

On the question of delay, it is not entirely clear from the evidence whether by the time of their application to Picken J the Claimants appreciated their previous mistake about the English court’s jurisdiction. One would hope that by that stage they did. If so, then it is arguable that they should have explained this point clearly, as it was relevant to the lack of any prior application and indeed may have been a better reason than the point that a new risk of dissipation arose as a result of the registration of the DRT Judgment. However, on the footing that the mistake had been a genuine one (which was not disputed before me), I do not consider that reference to it before Picken J was necessary or could have led to a different outcome. The fact that there had not been an earlier application to the English court was in itself obvious. Reference to the mistake about jurisdiction would not have undermined, and might have strengthened, the case on risk of dissipation by providing an explanation as to why the risk of dissipation had not led to an earlier application. In all the circumstances, I do not consider there to have been a material non-disclosure in this regard, nor in any event one sufficiently culpable to merit the discharge of the existing WFO.

As to Dr Mallya’s contention that the value of the Personal Guarantee is limited to his Indian assets, that is an argument which he presumably could have advanced before the DRT. The DRT has given a judgment against Dr Mallya on the Personal Guarantee, which judgment is not limited to Dr Mallya’s Indian assets. The Claimants’ evidence is that they were aware only that a submission that the Personal Guarantee was so limited was made by Dr Mallya at the hearing before the Indian Supreme Court on 26 April 2016. However, no such contention is apparent from either Dr Mallya’s Notice of Motion in the Bombay High Court or his appeal to the DRAT. As I have already noted, the contention appears to have no coherent basis or merit. The Guarantee is expressed in unlimited terms. There was no material non-disclosure.

Finally, in the light of matters set out in section (D)(1)(a) above, I do not consider that Dr Mallya’s without prejudice offers in 2016 or UBHL’s application in April 2017 were matters that the Claimants were required to draw to the attention of Picken J, or which undermined their statement that Dr Mallya had not to date paid anything voluntarily.

As a result, I do not consider it appropriate to discharge the WFO on the grounds of material non-disclosure.

CONCLUSION

For the reasons set out above:

I therefore dismiss Dr Mallya’s applications.

For completeness, I record that the Claimants accepted that it may be appropriate in due course to revise the terms of the WFO to take account of any recoveries received pursuant to the recent Order of Attachment referred to in § 15 above.

I am grateful to counsel on both sides for their cogent and thoughtful submissions.