October 28, 2021 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, BAHRAIN 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 LLC (KSA BRANCH)
Defendants
ORDER OF JUSTICE SIR JEREMY COOKE
PENAL NOTICE
IF YOU KBBO CPG INVESTMENT LLC, INFINITE INVESTMENT LLC, 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, TELE LINK COMMUNICATION LLC, ONE PREPAY COMPANY LLC, TECHLINK SYSTEMS LLC, FRESHLY FROZEN FOODS FACTORY LLC, SENORA FOODS LLC, SPECTRAMI DMCC OR ONE PREPAY COMPANY LLC (KINGDOM OF SAUDI ARABIA BRANCH) 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.
IF YOU MR KHALEEFA BUTTI BIN OMAIR YOUSIF ALMUHAIRI DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND YOU MAY BE IMPRISONED, FINED OR HAVE YOUR 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.
UPON the Claimants’ Application No. CFI-045-2020/11 dated 11 June 2020
AND UPON the Court concluding that the First, Second, Fourth, Thirteenth, Sixteenth, and Seventeenth Defendants have no real prospect of successfully defending the claims referred to at paragraph 2 below and that there is no other compelling reason for those claims to proceed to trial
AND UPON the Court concluding that the First Defendant has no real prospect of successfully defending the claim referred to at paragraph 5 below and that there is no other compelling reason for that claim to proceed to trial
AND UPON hearing Counsel for the Claimants
IT IS HEREBY ORDERED THAT:
1. In this Order:
(a) The “15 May Order” means the Order of Justice Sir Jeremy Cooke dated 15 May 2020;
(b) The “21 May Order” means the Order of Justice Sir Jeremy Cooke dated 21 May 2020; and
(c) The “1 June Order” means the Order of Justice Sir Jeremy Cooke dated 1 June 2020.
IMMEDIATE JUDGMENT
2. Immediate judgment is entered in the sums set out in paragraph 3 below against:
(a) The First Defendant on the debt claims under the Facility Agreements dated 19 November 2019;
(b) The Second Defendant on the debt claims under his Standalone Guarantee dated 19 November 2019;
(c) The Fourth Defendant on the debt claims under its Standalone Guarantee dated 19 November 2019; and
(d) The Thirteenth, Fourteenth, Sixteenth and Seventeenth Defendants on the debt claims under the corporate guarantees contained in the Conventional Facility Agreement and Murabaha Investment Agency Agreement each dated 19 November 2019.
3. The First, Second, Fourth, Thirteenth, Fourteenth, Sixteenth and Seventeenth Defendants shall by 4pm on 13 November 2021 pay the following sums:
(a) USD 32,280,092.65 plus contractual interest of USD 3,059,735.12 to ICICI Bank Limited, Bahrain Branch.
(b) USD 16,018,675.76 plus contractual interest of USD 1,517,847.05 to ICICI Bank UK PLC.
(c) USD 19,394,593.51 plus contractual interest of USD 1,838,213.38 to Bank of Jordan Company.
(d) USD 24,153,650.45 plus contractual interest of USD 2,289,198.81 to Union Bank of India.
(e) USD 29,074,825.23 plus contractual interest of USD 2,755,688.12 to National Bank of Bahrain BSC.
(f) USD 92,742,926.75 plus contractual interest of USD 8,790,673.18 to HSBC Bank Middle East Limited.
(g) USD 14,514,557.14 plus profit of USD 1,288,760.10 to Ahli United Bank BSC (DIFC Branch).
(h) USD 14,616,119.30 plus profit of USD 1,300,446.98 to Commercial Bank of Dubai PSC.
(i) USD 47,998,177.85 plus profit of USD 4,251,716.56 plus agency fees of USD 35,000 to Warba Bank K.S.C.P.
4. Pursuant to Article 39 of the Court Law (DIFC Law No. 10 of 2004) and DIFC Practice Direction No. 4, simple interest shall run on the sums due under paragraph 3 from 28 October 2021 until payment at the rate of 9% per annum.
5. Immediate judgment is entered against the First Defendant on the claim to a mandatory injunction in respect of the First Defendant’s obligations to provide security documents, to comply with the cash sweep and to comply with the related reporting requirements.
6. For the avoidance of doubt, the Defendants identified in paragraph 3 are jointly and severally liable to pay the sums ordered in paragraphs 3 and 4 above.
7. This Order is final and executory in the execution courts.
MANDATORY FINAL INJUNCTION
Provision of security documents
8. As soon as reasonably practicable and in any event within 21 days, the First Defendant shall and shall procure that the Fifth to Nineteenth Defendants shall take such steps as are reasonably necessary to comply with the following obligations under Part 3 of Schedule 2 to the Common Terms Agreement dated 19 November 2019 (the “CTA”), including:
(a) [First Ranking Subsequent Security Moveables Agreement] The First Defendant shall and shall procure that the Ninth, Eleventh, Fifteenth and Eighteenth Defendants and each of them shall execute the First Moveables Security Document in the form exhibited at pages 891-907 to Exhibit DS1 of the First Affidavit of David Sanders and provide copies of the same to the First Claimant forthwith;
(b) [Second Ranking Subsequent Security Moveables Agreement] The First Defendant shall procure that the Fifth, Sixth, Seventh, Eighth, Tenth, Twelfth, Thirteenth, Fourteenth, Sixteenth, Seventeenth Defendants and each of them shall execute the Second Moveables Security Document in the form exhibited at pages 908-922 to Exhibit DS1 of the First Affidavit of David Sanders and provide copies of the same to the First Claimant forthwith; and
(c) [Initial KSA Security Document] The First Defendant shall procure that the Nineteenth Defendant shall take such steps as are reasonably necessary to register the Account Pledge Agreement entered into between the Nineteenth Respondent and HSBC Saudi Arabia on the Securities Register in Saudi Arabia.
Cash sweep obligations
9. Until satisfaction of judgment or further Order, the First Defendant shall comply with its obligations under clause 11.3(a) of the CTA. In particular, on the Fifth and Twentieth day of each month, (or if such day is not a business day, on the immediately preceding business day in each case), the First Defendant shall procure the payment by the Fifth Defendant to Eighteenth Defendants (or any of them) of the amount by which the total aggregate monies held by the Fifth Defendant to Eighteenth Defendants in their respective bank accounts exceeds AED 37,000,000 (or its equivalent in any other currency) to:
(a) In respect of AED Dirham balances, the “Dirham Collection Account” under the Common Terms Agreement, being the First Defendant’s account with HSBC Bank Middle East Limited (A/C 012-081543-805); and
(b) In respect of US Dollar balances, the “Dollar Collection Account” under the Common Terms Agreement, being the First Defendant’s account with HSBC Bank Middle East Limited (A/C 012-081543-901).
(together the “Collection Accounts”)
Reporting requirements
10. Within 21 days of this Order, the First Defendant shall supply to the Claimants:
(a) a Summary Report for the months of November 2019 to September 2021 inclusive; and
(b) bank statements detailing the balances standing to each bank account of the Fifth Defendant to Eighteenth Defendants for the months of November 2019 to September 2021 inclusive.
11. Until further Order, the First Defendant shall comply with its obligation under clause 11.3(c) of the CTA. In particular, the First Defendant shall within 10 calendar days of the end of each calendar month supply the First Claimant with a Summary Report for that calendar month and the bank statements detailing the balances standing to each bank account of the Fifth to Eighteenth Defendants for that calendar month.
12. For the purposes of paragraphs 10 and 11, a “Summary Report” means a report including details of all payments into and out of each Collection Account and the Debt Service Reserve Account, total debits and total credits and the balance thereof on a daily basis during such calendar month. The “Debt Service Reserve Account” means that account under the Common Terms Agreement, being the First Defendant’s account with HSBC Bank Middle East Limited (A/C 012-081543-804).
13. Within 28 days of this Order, the First Defendant must cause to be sworn and served on the Claimants’ legal representatives an affidavit setting out, to the best of its ability, the information referred to in paragraph 10 above.
NO EFFECT ON EXISTING INJUNCTIONS
14. For the avoidance of doubt, this Order does not affect the existing Orders made in this case referred to in paragraph 1 above which continue in force.
COSTS
15. The First, Second, Fourth, Thirteenth, Fourteenth, Sixteenth and Seventeenth Defendants (the “Hadef Defendants”) shall pay the Claimants’ costs of and occasioned by (1) the Claimants' application dated 11 June 2020 and (2) the Hadef Defendants' application dated 5 June 2020, such costs to include the costs incurred on those applications at the hearings on 30 June, 1 July 2020 and 27 October 2021. These costs to be assessed if not agreed and shall be the subject of a payment on account of costs, with that payment on account be assessed pursuant to the procedure set out below.
16. The Hadef Defendants have the right to apply to seek to set aside or vary this costs order within 7 days of the date hereof.
17. The procedure applying to paragraphs 15 and 16 is as follows:
(a) The Claimants are to file a Statement of Costs within 3 business days of the date of this Order;
(b) The Hadef Defendants shall then have 7 days from the submission of the Claimants' Schedule of Costs to (i) make any application seeking to set aide or vary the costs order and (ii) make submisisons on the Claimants’ Costs schedule;
(c) The Claimants' shall have a right of reply to any such application and/or submission from the Hadef Defendants within 3 business days thereafter; and
(d) The Cout shall determine any disputes as to costs on paper.
AND IT IS FURTHER DECLARED THAT:
18. The First, Second, Fourth, Thirteenth, Fourteenth, Sixteenth and Seventeenth Defendants must comply with the following obligations notwithstanding that compliance with those provisions may incriminate them:
(a) [tracing instructions] The First and Second Defendants’ obligations under paragraphs 7(2) of the 15 May Order and paragraph 8(2) of the 21 May Order;
(b) [tracing information] The First, Second, Fourth, Thirteenth, Fourteenth, Sixteenth and Seventeenth Defendants’ obligations under paragraphs 9 and 10 of the 15 May Order and paragraphs 5, 7 and 8 of the 21 May Order;
(c) [asset information] The First Second, Fourth, Thirteenth, Fourteenth, Sixteenth and Seventeenth Defendants’ obligations under paragraph 16(1) and 17 of the 15 May Order; and
(d) [cash reporting obligations] The First Defendant’s obligations under paragraphs 21 to 24 of the 15 May Order and paragraphs 10, 11, 12, and 13 of this Order.
19. The part of the Claimants’ application against the Nineteenth Defendant is adjourned with liberty to restore.
20. Liberty to apply in respect of the freezing orders and the proprietary injunction within them.
Issued by:
Amna Al Owais
Chief Registrar
Date of issue: 28 October 2021
Time: 1pm
