December 16, 2022 Court of Appeal - Orders
Claim No: CA 011/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF APPEAL
BETWEEN
SBM BANK (MAURITIUS) LTD
Respondent/Claimant
and
(1) RENISH PETROCHEM FZE
(2) MR HITESHKUMAR CHINUBHAI MEHTA
Appellants/Defendants
ORDER OF CHIEF JUSTICE ZAKI AZMI
UPON the Order of Chief Justice Zaki Azmi dated 18 August 2022 granting the Appellants permission to appeal on the condition the Appellants pay security for costs (the "PTA Order")
UPON considering the Respondent's Application No. CA-011-2022/1 dated 30 September 2022 (the “Application for additional conditions”).
IT IS HEREBY ORDERED THAT:
1. The Application for additional conditions be dismissed.
2. The Respondent can raise the question of imposing further conditions as part of the appeal hearing, in the event that the Appellant fulfils the condition imposed by way of the PTA Order.
3. The Respondent shall pay the Appellants’ costs of this Application on the standard basis, to be assessed by the Registrar if not agreed.
Issued by:
Ayesha Bin Kalban
Registrar
Date of issue: 16 December 2022
At: 2:45pm
SCHEDULE OF REASONS
1. On 18 August 2022, the Appellants succeeded in their second permission to appeal (the “Renewed PTA Application”) the Order of Lord Justice Angus Glennie issued on 1 May 2022. The Renewed PTA Application was granted on the condition that the Appellants pay security for costs, (“the PTA Order”). The current status on this matter is that the matter of quantum of security is currently being determined by the Registrar.
2. On 3 October 2022, the Respondents filed an application with the Court seeking to impose further conditions upon granting the Renewed PTA Application. The additional conditions requested by the Respondent are: (i) the Appellant shall comply with the consent order dated 9 August 2022 (the “Consent Order”) to pay the Respondent its costs in the agreed sum of USD 174,798.41 and (ii) the Appellants shall pay into the court the judgment sum of USD 21,890,819.50 which shall be held by the Court pending the outcome of the Appeal.
3. The Respondent argued that they seek those additional conditions because the Appellants have allegedly been in breach of the Consent Order and otherwise in ongoing contempt of court.
4. My reasons for dismissing the Respondent’s Application for Additional Conditions sought against the Appellant are twofold. First, requesting the Appellants to deposit the judgment sum of USD 21,890,819.50 into court is an unnecessary step at this stage of these proceedings, if the appeal is successful, the Respondent will not be entitled to that judgment amount. However, if the appeal is unsuccessful, the Respondents will remain to its entitlement to pursue the Appellants.
5. Second, in my opinion and based on the facts of this Appeal, as I see them now, it is only fair that the Appellants are to be given the opportunity to try their case fairly. The Appeal Court will decide accordingly, after hearing submissions from both parties.
Conclusion
6. The Application for Additional Conditions is dismissed.
7. The Appellants are entitled to their costs in defending this Application, to be assessed if not agreed.
