March 18, 2022 court of first instance - Orders
Claim No: CFI 045/2020
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) EMIRATES NBD BANK PJSC
(2) HSBC BANK MIDDLE EAST LIMITED
(3) ICICI BANK LIMITED
(4) ICICI BANK UK PLC
(5) UNION BANK OF INDIA
(6) BANK OF JORDAN COMPANY
(7) NATIONAL BANK OF BAHRAIN BSC
(8) AHLI UNITED BANK BSC (DIFC BRANCH)
(9) COMMERCIAL BANK OF DUBAI PSC
(10) WARBA BANK KSCP
Claimants
and
(1) KBBO CPG INVESTMENT LLC
(2) MR KHALEEFA BUTTI BIN OMAIR YOUSIF ALMUHARI
(3) HIS EXCELLENCY SAEED MOHAMED BUTTI MOHAMED ALQEBAISI
(4) INFINITE INVESTMENT LLC
(5) GROUP OF FATHIMA CO LLC
(6) FATHIMA SUPERMARKET LLC (SHARJAH)
(7) FATHIMA SUPERMARKET WLL (ABU DHABI)
(8) FATHIMA TRADING & SUPERMARKET COMPANY WLL
(9) FAIRWAY GENERAL TRADING
(10) FAIRWAY CATERING SERVICES LLC (DUBAI)
(11) FAIRWAY CATERING SERVICES LLC (ABU DHABI)
(12) FATIMA GENERAL MARKET LLC
(13) TELE LINK COMMUNICATION LLC
(14) ONE PREPAY COMPANY LLC
(15) TECHLINK SYSTEMS LLC
(16) FRESHLY FROZEN FOODS FACTORY LLC
(17) SENORA FOODS LLC
(18) SPECTRAMI DMCC
(19) ONE PREPAY COMPANY (SOLE PROPRIETORSHIP) – LLC
Defendants
ORDER OF JUSTICE SIR JEREMY COOKE
PENAL NOTICE
IF YOU GROUP OF FATHIMA CO LLC, FATHIMA SUPERMARKET LLC (SHARJAH), FATHIMA SUPERMARKET WLL (ABU DHABI), FATHIMA TRADING & SUPERMARKET COMPANY WLL, FAIRWAY GENERAL TRADING, FAIRWAY CATERING SERVICES LLC (DUBAI), FAIRWAY CATERING SERVICES LLC (ABU DHABI), FATIMA GENERAL MARKET LLC OR TECHLINK SYSTEMS LLC DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND YOUR DIRECTORS MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED OR THE COMPANY MAY BE FINED OR HAVE ITS ASSETS SEIZED.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
THIS ORDER
1. This is an Order made against the companies listed in the heading to this Order as the Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth and Fifteenth Defendants (together, ‘‘the Respondents”) on the application of the Claimants (the “Applicants’’).
2. The Judge read the Affidavits listed in Schedule A and accepted the undertakings set out in Schedule B at the end of this Order.
3. Unless otherwise stated:
(a) references in this Order to “the Respondent” mean all of them;
(b) the “15 May Order” means the Order of Justice Sir Jeremy Cooke dated 15 May 2020;
(c) the “21 May Order” means the Order of Justice Sir Jeremy Cooke dated 21 May 2020;
(d) the “1 June Order” means the Order of Justice Sir Jeremy Cooke dated 1 June 2020;
(e) the "28 October 2021” Order" means the order of Justice Sir Jeremy Cooke dated 28 October 2021 (as amended and re-issued on 16 November 2021);
(f) the "Default Judgment" means the Order of Justice Sir Jeremy Cooke dated 1 March 2022; and
(g) this Order is effective against any Respondent on whom it is served or who is given notice of it.
FREEZING ORDER
4. Until satisfaction of the Default Judgment or further Order, each Respondent must not:
(a) remove from the UAE any of his assets which are in the UAE up to the value of US$317,920,897.93; or
(b) in any way dispose of, deal with or diminish the value of any of his assets whether they are within or outside the UAE up to the same value.
5. Paragraph 4 applies to all the Respondent’s assets whether or not they are in his own name and whether they are solely or jointly owned. For the purpose of this Order the Respondent’s assets include any asset which he has the power, directly or indirectly, to dispose of or deal with as if it were his own. The Respondent is to be regarded as having such power if a third party holds or controls the asset in accordance with its direct or indirect instructions.
6. The prohibition in paragraph 4 includes in particular, the assets referred to in Schedule C of this Order.
7. If the total value free of charges or other securities (‘Unencumbered Value’) of a Respondent’s assets in the UAE exceeds US$ 317,920,897.93, that Respondent may remove any of those assets from the UAE or may dispose of or deal with them so long as the total unencumbered value of that Respondent’s assets still in the UAE remains above US$317,920,897.93.
8. If the total unencumbered value of a Respondent’s assets in the UAE does not exceed US$317,920,897.93, that Respondent must not remove any of those assets from the UAE and must not dispose of or deal with any of them. If a Respondent has other assets outside the UAE, he may dispose of or deal with those assets outside the UAE so long as the total unencumbered value of all his assets whether inside or outside the UAE remains above US$317,920,897.93.
NO EFFECT ON EXISTING INJUNCTIONS
9. For the avoidance of doubt, this Order does not affect the existing Orders referred to in paragraph 3 (b)-(d) above which continue against the Nineteenth Defendant, subject to:
(a) the variations made by this Order including the variation to the amount frozen; and
(b) the limitation on the Exceptions to this Order which is confined to those set out in paragraph 11 below.
10. This Order does not discharge the 28 October 2021 Order.
EXCEPTIONS TO THIS ORDER
11. Save with respect to the Funds (as defined in the 1 June Order), which are subject to the injunction imposed by paragraph 6 of 1 June Order, this Order does not prohibit the Respondents from spending a reasonable sum on legal advice and representation, provided that such legal advice and representation is confined solely to proceedings relating to the enforcement of the Orders made in these proceedings against the Respondents.
12. Before spending any money under paragraph 11 above, the Respondents must tell the Applicants’ legal representatives where the money is to come from.
13. The order will cease to have effect if the Respondents or one or more of them together pay the Claimants US$317,920,897.93 in accordance with the Orders made in the Default Judgment.
VARIATION OR DISCHARGE OF THIS ORDER
14. 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 Applicants’ 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 Applicants’ legal representatives in advance.
INTERPRETATION OF THIS ORDER
15. 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.
16. A Respondent which is not an individual which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way.
PARTIES OTHER THAN THE APPLICANTS AND RESPONDENTS
Effect of this Order
17. It is a contempt of court for any person notified of this Order knowingly to assist in or permit a breach of this Order. Any person doing so may be imprisoned, fined or have their assets seized.
Set off by banks
18. 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 Respondents before it was notified of this Order.
Withdrawals by the Respondents
19. No bank need enquire as to the application or proposed application of any money withdrawn by the Respondents if the withdrawal appears to be permitted by this Order.
Third parties outside Dubai
20. Save as set out in paragraph 21 below, this Order will not affect any person other than the Respondent situated outside Dubai until and to the extent that the Order has been declared enforceable by or is enforced by the courts of the place where that person is situated.
21. This Order will affect the following persons situated outside Dubai:
(a) The Respondent or its officer or agent appointed by power of attorney;
(b) Any person who:
(i) Is subject to the jurisdiction of this Court;
(ii) Has been given written notice of this Order at his residence or place of business within Dubai; and
(iii) Is able to prevent acts of omissions outside Dubai which constitute or assist in a breach of the terms of this Order.
22. In respect of assets located outside Dubai, nothing in this Order shall prevent any third party from complying with:
(a) What it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state 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 country or state, provided that reasonable notice of any application for such an order is given to the Applicants’ legal representatives.
Issued by:
Nour Hineidi
Registrar
Date of issue: 18 March 2022
Time: 4pm
SCHEDULE A
AFFIDAVITS
The Applicant relied on the following affidavits:
| NAME | NUMBER | DATE SWORN | PARTY |
|---|---|---|---|
| David Sanders | 1st | 13 May 2020 | Applicants |
| Mohamed Fayad | 1st | 13 May 2020 | Applicants |
| Tarek Alazem | 1st | 13 May 2020 | Applicants |
| Robin Hickman | 1st | 13 May 2020 | Applicants |
| Antonia Grieve-Yates | 1st | 4 February 2022 | Applicants |
SCHEDULE B
UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANTS
1. If the Court later finds that this Order has caused loss to the Respondents and decides that the Respondents should be compensated for that loss, the Applicants will comply with any order the Court may make.
2. The Applicants will serve this Order upon the Respondents as soon as practicable.
4. Anyone notified of this Order will be given a copy of it by the Applicants legal representatives.
5. The Applicants will pay the reasonable costs of anyone other than the Respondents which have been incurred as a result of this Order including the costs of finding out whether that person holds any of the Respondents’ 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 Applicants will comply with any order the Court may make.
6. If this Order ceases to have effect (for example, if the Respondents pay US$317,920,897.93) the Applicants 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.
7. The Applicants will not without the permission of the Court use any information obtained as a result of this Order for the purpose of any civil or criminal proceedings, either in the DIFC or in any other jurisdiction, other than for
(a) this claim; or
(b) commencing or pursuing civil proceedings for the enforcement of this Order or in support of these proceedings in the Dubai Courts.
8. The Applicants will not without the permission of the Court seek to enforce this Order in any country outside the UAE.
SCHEDULE C
THE RESPONDENTS’ ASSETS
1. in respect of the Fifth Respondent:
(a) shares or interests in any company in the Fathima Group;
(b) the bank account with First Abu Dhabi Bank with account number 1011001185514028; and
(c) the bank account with Dubai Islamic Bank PJSC with account number 010520349613901.
2. in respect of the Eighth Respondent:
(a) the bank account with Arab Bank PLC with account number 4001569378300;
NAME AND ADDRESS OF APPLICANTS’ LEGAL REPRESENTATIVES
The Applicants’ legal representatives are:
Addleshaw Goddard (Middle East) LLP, Level 6, Burj Daman Tower, Dubai International Financial Centre, PO Box 506555, Dubai, United Arab Emirates
Telephone: +971 4 350 6402 / +971 52 273 4846
Mobile: +971 4 350 6402 / +971 50 465 4755
Email: s.jury@aglaw.com; r.hickman@aglaw.com; a.grieve-yates@aglaw.com
