April 14, 2020 court of first instance - Orders
Claim No. CFI 031/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
CREDIT EUROPE BANK (DUBAI) LTD
Applicant/Intended Claimant
and
NEW MEDICAL CENTRE TRADING LLC
Intended First Defendant
NMC HEALTHCARE LLC
Intended Second Defendant
BAVAGUTHU RAGHURAM SHETTY
Respondent/Intended Third Defendant
FREEZING INJUNCTION AND PROVISION OF INFORMATION ORDER
PENAL NOTICE
IF YOU, BAVAGUTHU RAGHURAM SHETTY, DO NOT COMPLY WITH THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE FINED OR REFERRED TO THE ATTORNEY GENERAL OF DUBAI
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE FINED OR REFERRED TO THE ATTORNEY GENERAL OF DUBAI
IMPORTANT:
NOTICE TO THE RESPONDENT
This Order prohibits you from doing the acts set out in this Order. You should read it all carefully. You are advised to seek legal advice as soon as possible. You have a right to ask the Court to vary or discharge this Order.
If you disobey this Order you may be found guilty of Contempt of Court.
1 THIS ORDER
1.1 This is a Freezing Order made against the Respondent, namely, Dr Bavaguthu Raghuram Shetty (the “Respondent“), on 10 April 2020 by Justice Wayne Martin on the application of Credit Europe Bank (Dubai) Ltd (the “Applicant‘). The Judge has read the affidavit listed in Schedule A and accepted the undertakings set out in Schedule B at the end of this Order.
1.2 This Order was made at a hearing without notice to the Respondent. The Respondent has the right to apply to the Court to vary or discharge the Order in accordance with paragraph 6 below.
1.3 There will be a further hearing in respect of this Order at 1pm, Tuesday, 12 May 2020 (the “Return Date“).
2 WORLDWIDE FREEZING INJUNCTION
2.1 Until the Return Date or further order of the Court, the Respondent must not, without the prior written consent of the Applicant’s solicitors:
(a) remove from the DIFC any of his assets in the DIFC up to the value of USD 8,377,237.95; and
(b) in any way dispose of, deal with or diminish the value of his assets whether they are in or outside the DIFC up to the same value.
2.2 Paragraph 2.1 applies to all of the Respondent’s assets whether or not they are in his own name and whether they are solely or jointly owned. For the purpose of this Order, the Respondent’s assets include any asset which he has the power, directly or indirectly, to dispose of or deal with as if it were his own. The Respondent is regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions.
2.3 This prohibition includes the following assets in particular:
(a) the property located at Penthouse 1, E4/01, C88, Abu Dhabi, United Arab Emirates, or the net sale proceeds after payment of any mortgages or finance if it has been sold;
(b) the property located at Villa 44, Frond A, The Palm Jumeirah, Dubai, United Arab Emirates, or the net sale proceeds after payment of any mortgages or finance if it has been sold;
(c) any shares held in NMC Healthcare PLC, Finablr Plc, BRS Investments Holdings Limited, BRS Investment Holdings 1 Limited, BRS Investment Holdings 3 Limited, BRS Ventures & Holdings Limited to the extent that those shares are not otherwise charged or pledged; and
(d) any other assets referred to in the document at Schedule C to this Order (the “Net Worth Certificate“), including the Respondent’s assets listed on page 1 of the Net Worth Certificate titled “NETWORTH OF DR. B.R SHETTY AS ON MAY 31, 2018”, the shares listed in Annexure 1 of the Net Worth Certificate (to the extent that those shares are not otherwise charged or pledged), the real estate listed in Annexure 2 of the Net Worth Certificate (or the net sale proceeds after payment of any mortgage(s) or finance if any of that real estate has been sold) and the vehicle referred to in Annexure 3 of the Net Worth Certificate.
2.4 If the total value free of charges or other securities (the “unencumbered value”) of the Respondent’s assets in the DIFC exceeds USD 8,377,237.95, the Respondent may remove any of those assets from the DIFC or may dispose or deal with them so long as the total unencumbered value of the assets still in the DIFC remains above USD 8,377,237.95.
2.5 If the total unencumbered value of the Respondent’s assets in the DIFC does not exceed USD 8,377,237.95, the Respondent must not remove any of those assets from the DIFC and must not dispose of or deal with any of them. If the Respondent has other assets outside the DIFC, he may dispose of or deal with those assets outside the DIFC so long as the total unencumbered value of all his assets whether in or outside the DIFC remains above USD 8,377,237.95.
3 PROVISION OF INFORMATION ABOUT ASSETS FROZEN
3.1 Unless paragraph 3.2 applies, the Respondent must by no later than 4pm (UAE time) on Thursday, 23 April 2020 and to the best of his ability inform the Applicant’s legal representatives of all of his assets worldwide exceeding USD 10,000 in value whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets.
3.2 If the provision of any of this information is likely to incriminate the Respondent, he may be entitled to refuse to provide it, but is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the Respondent liable to be fined or referred to the Attorney General of Dubai.
3.3 As soon as practicable and in any event by no later than 4pm (UAE time) on Thursday, 30 April 2020, the Respondent must swear and serve on the Applicant’s legal representatives an affidavit setting out the above information.
4 EXCEPTIONS TO THIS ORDER
4.1 This Order does not prohibit the Respondent from spending USD 7,000 per week towards his ordinary living expenses and reasonable sum on legal advice and representation.
4.2 This Order does not prohibit the Respondent from dealing with or disposing of any of his assets in the ordinary and proper course of business.
4.3 The Respondent may agree with the Applicant’s legal representatives that the above spending limits should be increased or that this Order should be varied in any other respect, but any agreement must be in writing.
4.4 This Order will cease to have effect if the Respondent:
(a) provides security by paying the sum of USD 8,377,237.95 into Court, to be held to the order of the Court; or
(b) makes provision for security in that sum by another method agreed with the Applicant’s legal representatives in writing.
5 COSTS
The costs of this application are reserved to the Judge hearing the application on the Return Date.
6 VARIATION OR DISCHARGE OF THIS ORDER
Anyone served with or notified of this Order may apply to the Court at any time to vary or discharge this Order (or so much of it as affects that person), but they must first inform the Applicant’s legal representatives. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Applicant’s legal representatives in advance.
7 INTERPRETATION OF THIS ORDER
7.1 A Respondent who is an individual who is ordered not to do something must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement.
8 SERVICE OF THIS ORDER
8.1 The Applicant also has permission to serve this Order on any third party to whom the Applicant wishes to give notice of this Order including:
(a) NMC Health LLC;
(b) National Medical Training Centre LLC;
(c) NMC Health Plc;
(d) Finablr Plc;
(e) BRS Investments Holdings Limited, BRS Investment Holdings 1 Limited, BRS Investment Holdings 3 Limited, BRS Ventures & Holdings Limited;
(f) UAE Exchange LLC;
(g) The London Stock Exchange;
(h) Dubai Land Department;
(i) Abu Dhabi Land Department;
(j) HM Land Registry; and
(k) Bank of Baroda.
9 PARTIES OTHER THAN THE APPLICANT AND RESPONDENT
Effect of this Order
9.1 It is contempt of court for any person notified of this Order knowingly to assist in or permit a breach of this Order.
Set off by Bank
9.2 This injunction does not prevent any bank from exercising any right of set off it may have in respect of any facility which it gave to the Respondent before it was notified of this Order.
Withdrawals by the Respondent
9.3 No bank need enquire as to the application or proposed application of any money withdrawn by the Respondent if the withdrawal appears to be permitted by this Order.
Persons outside the DIFC
9.4 Except as provided in paragraph 9.5 below, the terms of this Order do not affect or concern anyone outside the jurisdiction of this Court.
9.5 The terms of this Order will affect the following persons in a country or state outside the jurisdiction of this Court:
(a) the Respondent;
(b) any person who:
(i) is subject to the jurisdiction of this Court; and
(ii) has been given notice of this Order at his residence or place of business within the jurisdiction of this Court; and
(iii) is able to prevent acts or omissions outside the jurisdiction of this Court which constitute or assist in a breach of the terms of this Order; and
(c) any other person, only to the extent that this Order is declared enforceable by or is enforced by a court in that country or state.
Assets located outside the DIFC
9.6 Nothing in this Order shall, in respect of assets located outside the DIFC, prevent any third party from complying with:
(a) what it reasonably believes it to be its obligations, contractual or otherwise, under the laws and obligations of the jurisdiction in which those assets are situated or under the proper law of any contract between itself and the Respondent; and
(b) any orders of the courts of that jurisdiction, provided that reasonable notice of any application for such an order is given to the Applicant’s legal representatives.
10 NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES
The Applicant’s legal representatives are:
Clyde & Co LLP, PO Box 7001, Rolex Tower, Level 15, Dubai, UAE
11 COMMUNICATIONS WITH THE COURT
All communications with the DIFC Courts about this Order should be electronically sent to registry@difccourts.ae quoting case number CFI-031-2020.
Issued by:
Nour Hineidi
Deputy Registrar
Date of issue: 14 April 2020
At: 5.30pm
SCHEDULE A
AFFIDAVITS
The Applicant relied on the following affidavits—
(1) First Affidavit of Onur Nazlicicek dated 9 April 2020 and Exhibit ON1.
UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT
(1) If the Court later finds that this Order has caused loss to the Respondent, and decides that the Respondent should be compensated for that loss, the Applicant will comply with any order the Court may make.
(2) By no later than 4pm on Sunday 19 April 2020, the Applicant will issue and serve a Part 7 or Part 8 Claim Form claiming the appropriate relief.
(3) As soon as practicable, the Applicant will serve upon the Respondent:
(i) a copy of this Order:
(ii) copies of the affidavit and exhibit containing the evidence relied upon by the Applicant, and any other documents provided to the Court on the making of the application;
(iii) the draft Claim Form; and
(iv) an Application Notice or draft Application Notice for continuation of the order.
(4) As soon as practicable, the Applicant will send copies of the documents listed in paragraph (3) above by email to bavaguthu@gmail.com and chairmanoffice@brsholding.com.
(5) As soon as practicable after receipt of a revised transcript of the hearing reflecting any corrections, the Applicant will send a copy of the said transcript to the Respondent by email to bavaguthu@gmail.com and chairmanoffice@brsholding.com.
(6) Anyone notified of this Order will be given a copy of it by the Applicant’s legal representatives.
(7) The Applicant will pay the reasonable costs of anyone other than the Respondent which have been incurred as a result of this Order, including the costs of finding out whether the person holds any of the Respondent’s assets and if the Court later finds that this Order has caused such person loss, and decides that such person should be compensated for that loss, the Applicant will comply with any order the Court may make.
(8) If this Order ceases to have effect (for example, if the Respondent provides security pursuant to paragraph 4.4 above), the Applicant will immediately take all reasonable steps to inform in writing anyone to whom he has given notice of this Order, or who he has reasonable grounds for supposing may act upon this Order, that it has ceased to have effect.
(9) The Applicant will not without the permission of the Court seek to enforce this Order in any country outside the DIFC.
