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Claim No: CFI 034/2022

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler of Dubai

IN THE COURT OF FIRST INSTANCE
BEFORE H.E JUSTICE LORD ANGUS GLENNIE

BETWEEN

ICICI BANK LIMITED

Claimant

and

BAVAGUTHU RAGHURAM SHETTY

Defendant

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JUDGMENT OF H.E. JUSTICE LORD ANGUS GLENNIE

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UPON the Trial that was held on 23, 25, 26 of September 2024 and 14 October 2024 before H.E. Justice Lord Angus Glennie with counsel for the Claimant and counsel for the Defendant in attendance (the “Trial”)

AND UPON the Order of H.E. Justice Lord Angus Glennie dated 1 October 2024 directing the parties to file written closing submissions by 4pm on 28 October 2024 (the “Order”)

AND UPON reviewing the Consent Orders dated 4 and 12 November 2024 amending paragraph 2 of the Order to extend the time to file written closing submissions to 4pm on 18 November 2024

IT IS HEREBY ORDERED THAT:

1. The Claimant’s claim under the Modular Personal Guarantee fails and is dismissed.

2. The Claimant’s claim under the three NMC Personal Guarantees succeeds in the sum of USD 106,294,108.

3. The parties are at liberty to present written submissions concerning (i) interest; and (ii) costs within 28 days from the date of this Order.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 17 February 2025
At: 9am

 

SCHEDULE OF REASONS

 

Introduction

1. The Claimant is a Bank (the “Bank”).

2. The Defendant (“Dr Shetty”) is the founder of NMC Healthcare LLC (“NMC”), of which he was Chief Executive Officer until 2017 when he stood down to become non-executive joint chairman of the company. Details of his career and in particular of his involvement with NMC appear later when I set out parts of his evidence.

3. In this action the Bank claims from Dr Shetty sums in excess of USD 125 million. Those sums are said to be due to the Bank from NMC and Modular Concepts LLC (“Modular”) under Facility Agreements entered into by them with the Bank (respectively the “NMC Facility Agreements” and the “Modular Facility Agreement”). It is not in dispute that NMC and Modular entered into such Facility Agreements and, though the precise sums are not admitted, owe the Bank significant sums by way of principal and interest thereunder. But both NMC and Modular are insolvent. Accordingly, the Bank has turned its attentions to Dr Shetty. Dr Shetty is said to be liable in the like amounts under Deeds of Personal Guarantee (the “NMC Personal Guarantees” and the “Modular Personal Guarantee”) in terms of which, so it is alleged, Dr Shetty guaranteed immediate repayment of debts owed by NMC and Modular under those Facility Agreements.

4. Dr Shetty denies all liability. In particular, he denies having signed or lent his signature to any of the relevant Personal Guarantees. Whether he did so or not is the main issue in the case.

Procedural Matters

5. Both sides lodged Skeleton Arguments in advance of the trial. On the first morning of the trial Mr Lakin, for the Bank, complained that a number of “Grounds” set out in the Defendant’s Skeleton Argument were new points of which no notice had been given. These were mainly points of onshore Dubai Law identified at Grounds 5-10 of the Defendant’s Skeleton Argument. Some of them might have given rise to the need for further pleading and evidence. No notice had been given of these points either in the pleadings, in the Case Memorandum or in the Case Management Order. Having heard argument, I decided that to allow these points to be taken for the first time at this stage would have been unfair to the Bank. It would have required an adjournment of the trial, at great expense to the parties, and considerable delay before a new trial date could be identified. I refused to allow these new points to be taken. I say no more about them.

The Personal Guarantees

6. Dr Shetty is sued under four separate Personal Guarantees issued under and in respect of four separate Facility Agreements in terms of which the Bank agreed to (and did) make finance available to NMC or, in one case, to Modular Concepts LLC.

7. The relevant Personal Guarantees are as follows:

NMC Personal Guarantee 1

8. This is dated 20 December 2012, and bears to be between Dr Shetty, as Guarantor, and the Bank, in respect of credit facilities made available by the Bank to NMC under a Master Facility Agreement dated 29 December 2011 as amended by a Supplemental and Amendatory Agreement dated 24 September 2012 (collectively referred to hereafter as the “2011/2012 NMC Facility Agreement”). The Facility under those Facility Agreements taken together was for up to USD 25 million. By Letters of Amendment (the “Letters of Amendment”) dated 26 November 2013, 25 October 2014, 20 August 2015, 14 August 2016, 25 July 2017, 2 July 2018 and, though this is not in the court file, 5 September 2019, the parties agreed to extend the term of the 2011/2012 NMC Facility Agreement for the periods therein specified. Each extension to the 2011/2012 NMC Facility Agreement was matched, usually but not always on the same date, by a letter (the “Guarantee Extension Letter”) bearing to be signed by Dr Shetty extending the validity of the Personal Guarantee for the period of that extension.

NMC Personal Guarantee 2

9. This is dated 24 December 2013, again bearing to be between Dr Shetty, as Guarantor, and the Bank, in respect of credit facilities made available by the Bank to NMC under a Facility Agreement of that same date (the “2013 NMC Facility Agreement”). The Facility was for up to USD 30 million. As in the case of the 2011 Facility Agreement, there were a number of Letters of Amendment pursuant to which the parties agreed to extend the term of the Agreement for the periods therein specified, and, by the last Amendment, until 19 June 2020. These Letters of Amendment are dated 3 July 2014, 17 August 2015, 8 August 2016, 5 July 2017, 25 June 2018 and 26 August 2019. As in the case of the 2011/2012 NMC Facility Agreement and the Personal Guarantee relative thereto, each extension to the 2013 NMC Facility Agreement was matched, usually but not always on the same date, by a Guarantee Extension Letter bearing to be signed by Dr Shetty extending the validity of the Personal Guarantee for the period of that extension.

NMC Personal Guarantee 3

10. This is dated 27 March 2019, again bearing to be between Dr Shetty, as Guarantor, and the Bank, in respect of credit facilities made available by the Bank to NMC under a Facility Agreement of that same date (the “2019 NMC Facility Agreement”). The Facility was a term loan facility for up to USD 50 million.

Modular Personal Guarantee

11. This is dated 26 June 2019, bearing to be between Dr Shetty, as Guarantor, and the Bank, in respect of a credit facility of up to USD 30 million made available by the Bank to Modular under a Facility Agreement of that same date (the “Modular Facility Agreement”).

12. In the course of describing the various Facility Agreements and Personal Guarantees and letters granting extensions to the same, I have used expressions such as “bearing to be signed by Dr Shetty” or “bearing a signature said by the Bank to be that of Dr Shetty”. It should be made clear at this early stage that Dr Shetty denied that any of the relevant signatures were his. Much of the focus of the trial was therefore on the expert evidence given by Handwriting Experts. The Claimant called Ellen Radley of The Radley Forensic Document Laboratory. The Defendant called Mr Ahmed Obaid Al Bah of the ArabLab for Technical Inspection. I consider their evidence later.

13. However, a number of points should be mentioned at this stage. First, each of the Personal Guarantees (both the NMC Personal Guarantees and the Modular Personal Guarantee) bears a signature said by the Bank to be that of Dr Shetty as Personal Guarantor. Second, each of the Facility Agreements (both the three NMC Facility Agreements and the Modular Facility Agreement) provides in terms for a Personal Guarantee to be provided by Dr Shetty. It follows that if Dr Shetty signed any of these Facility Agreements he was signing up to a document which confirmed his status as personal guarantor. Third, although the 2011/2012 and 2013 NMC Facility Agreements each bear a signature said by the Bank to be that of Dr Shetty, the 2019 NMC Facility Agreement is different – it was signed on behalf of NMC not by Dr Shetty but by Mr Suresh Kumar. Fourth, the Modular Facility Agreement does not bear Dr Shetty’s signature, having been signed on behalf of Modular by some other individual (who was not identified in the evidence led at the trial of this action). Fifth, with one exception, each of the Letters of Amendment issued extending the duration of the 2011/2012 and 2013 NMC Facility Agreements bears a signature said by the Bank to be that of Dr Shetty. Sixth, the same is true of the Guarantee Extension Letters. And seventh, in addition to the Personal Guarantees, each of the NMC Facility Agreements (but not the Modular Facility Agreement) was supported by Corporate Guarantees given by one or more companies within the NMC Group. I shall come back to these points in due course.

The Factual Evidence for the Bank

14. The Bank adduced evidence from four witnesses: Mr Nikhil Parekh, Mr Rohit Gupta, Mr Gaurav Juneja and Mr Vikash Sharma. I summarise the role played by each of them at relevant times, before turning to summarise their evidence and focus on the limited number of critical areas.

Mr Nikhil Parekh

15. Mr Nikhil Parekh is the Chief Executive of the Shanghai Branch of ICICI Bank Limited. He joined ICICI in November 2010 and took the position of Relationship Manager in the International Financial Institutions Group based out of Mumbai, India. He moved to Dubai in 2014 to take up a position as Senior Relationship Manager in the Bank’s DIFC branch. He held that position from October 2014 until July 2018, when he moved to Johannesburg and subsequently to Shanghai.

16. As part of his role as Senior Relationship Manager at the Bank’s DIFC branch, Mr Parekh became responsible for managing the Bank's relationship with the NMC Group. By that time, NMC was already a significant client of the Bank. Given the importance of that relationship, Mr Parekh used to connect with a range of senior individuals at NMC and had regular interactions with NMC employees concerning documentation for the credit facilities, completion of compliance reviews, understanding NMC’s banking requirements and matter such as these. The majority of these meetings took place at NMC’s offices at Abu Dhabi.

17. Mr Parekh himself never met Dr Shetty. He said that he was aware that senior colleagues at the Bank had in-person meetings with him. Mr Vikash Sharma, the Bank’s regional head and CEO of the DIFC Branch would meet Mr Shetty at NMC’s offices in Abu Dhabi or at neutral venues, or have phone conversations with him. Mr Parekh would at times coordinate such meetings. The senior management team within the private client department of the Bank also frequently interacted with Dr Shetty, both through personal meetings and via telephone calls or emails. Mr Parekh said that in his interactions with the NMC management and staff they would often discuss the involvement of Dr Shetty on behalf of NMC. The NMC management and staff always mentioned that Dr Shetty was aware of the business of the NMC Group. Cheques issued as payment obligations under the NMC Facility Agreements were signed by Dr Shetty. Mr Parekh said that he could “confidentially state, based on my experience as relationship manager for NMC” that Dr Shetty was very familiar with ICICI and its relationship with NMC. “It does not ... seem at all plausible that he was not aware of the NMC Facility Agreements and the NMC Personal Guarantees by which he guaranteed repayment of the NMC Facility Agreements.” He never expressed any concerns about the existence or validity of the NMC Personal Guarantees.

18. In his witness statement Mr Parekh described the “specific procedure” followed by the Bank for finalising and obtaining executed versions of important documentation from corporate clients:

19. Mr Parekh said that, during the period when he was responsible for the NMC/Bank relationship, Dr Shetty signed various extensions to the NMC Personal Guarantees. NMC Personal Guarantee 1 was extended on 14 August 2016, 25 July 2017 and 2 July 2018. Personal Guarantee 2 was extended on 8 August 2016, 5 July 2017 and 2 July 2018.

20. Finally, in his statement Mr Parekh referred to two emails from others within the Bank (Nithin Babu and Santosh Sankaranarayanan) which were copied to him. The email from Mr Babu indicated that he had personally collected a signed Personal Guarantee from NMC in March 2018 and had checked the signature of Dr Shetty against the signature on Dr Shetty’s passport. The email from Mr Sankaranarayanan is dated 2 July 2018 and asks his colleagues to whom it is addressed to arrange for Dr Shetty to sign various documents relating to the renewal of the 2013 NMC Facility Agreement and of the NMC Personal Guarantee 2. This is potentially of interest, but no party to those email exchanges was called to give evidence – ultimately, therefore, these emails simply add to the indirect evidence of what was going on so far as the Bank and Dr Shetty were concerned.

21. Mr Parekh struck me as an honest witness. But he had little direct knowledge of Dr Shetty, whom he never met, or of the circumstances in which the NMC Facility Agreements and the NMC Personal Guarantees had a signature placed on them. Further, he arrived in the DIFC after the 2011/2012 NMC Facility Agreements and the 2013 NMC Facility Agreement were entered into and after the NMC Personal Guarantees 1 and 2 were signed; and he left the DIFC before the 2019 NMC Facility Agreement and the Modular Facility Agreement were entered into and before the NMC Personal Guarantee 3 and the Modular Personal Guarantee were signed. It is true that he was in the DIFC during the period of some four years or so when the 2011/2012 and 2013 Facility Agreements and relative Personal Guarantees were extended by Letters of Amendment and Guarantee Extension Letters signed annually in name of Dr Shetty, but he says nothing about the circumstances in which this was agreed or implemented. Overall, therefore, I did not find his evidence to be of great assistance.

22. Mr Rohit Gupta has been employed by the Bank since January 2003 when he started as a Senior Officer in Operations in the Bank’s offices in Mumbai. In September 2015 he moved to the DIFC Branch of the Bank to take up the position of Head of Corporate Banking for the Middle East. He continued in that role until December 2020 when he moved to Hong Kong and became the Chief Executive of the Hong Kong Branch of the Bank, a position which he still holds.

23. Mr Gupta was not in Dubai when the 2011/2012 and 2013 NMC Facility Agreements were entered into, or when the first two NMC Personal Guarantees were signed, and he played no part in setting up those transactions; and although he was in Dubai as Head of Corporate Banking for the Middle East when many of the Letters of Amendment and Guarantee Extension Letters were issued, when the 2019 NMC Facility Agreement was agreed, when NMC Personal Guarantee 3 was executed, and when the Modular Facility Agreement and the Modular Personal Guarantee were agreed and executed, he was not directly involved in the negotiation of those agreements, leaving responsibility for the relationship with NMC to the Senior Relationship Manager, Mr Nikhil Parekh, from late 2015 until July 2018 and Mr Abhishek Roychaudhary from July 2018 and December 2020. As he explained in his evidence, he would be made fully aware of the extent of the loan facilities available to NMC at any one time, would be copied in on relevant email correspondence and would attend meetings with individuals from NMC Group, including from the relevant NMC borrower, to obtain an update on the performance of the NMC Group; but he managed a team and could not be personally involved in every detail of the relationship.

24. So far as concerned Dr Shetty, Mr Gupta confirmed that he knew him to be a prominent person in the UAE at the time that he worked with the Bank’s DIFC branch. He was important to the Bank as the founder and director of the NMC Group. He was regarded as the leader and figurehead of the NMC Group, alongside Mr Prasanth Mangat, the CEO. In his interactions with the NMC management and staff, including Mr Suresh Kumar, Mr Gupta would sometimes ask them directly about the involvement of Dr Shetty in the NMC Group. They gave him confidence that Dr Shetty was fully committed to the Group. Mr Gupta said that Dr Shetty met personally with the Bank’s senior management. It did not seem at all plausible that Dr Shetty was not aware of the NMC Facility Agreements and the NMC Personal Guarantees signed by him. They never received, during his time as head of corporate banking, any communications from Dr Shetty or any other individual acting for him or from within the NMC Group asking about or expressing concerns about the existence or validity of the Personal Guarantees.

25. Mr Gupta explained how the relationship between the Bank and NMC broke down. At the start of 2020, the Bank was becoming very concerned that the NMC Group was in financial difficulties. This was prompted by the publication of a report by Muddy Waters Research LLC in December 2019 (the “Muddy Waters Report”), alleging that the NMC Group had been poorly governed and managed and that it had been seriously under- reporting its ongoing liabilities. NMC stopped repaying the sums advanced under the NMC Facility Agreements and in February 2020 lawyers were instructed on behalf of the Bank to issue letters of demand.

26. Mr Gupta too impressed me as an honest witness. But he clearly had no direct interaction with Dr Shetty. He did not see Dr Shetty signing any Personal Guarantee. Nor was he aware of anyone who saw Dr Shetty signing such a document. He appears not to have met Dr Shetty in person except at “courtesy meetings” but to have relied upon what he was told by others at the Bank and upon inferences drawn from the absence of any protest by Dr Shetty during the course of his time at the Bank in Dubai. But absence of protest is only suggestive of anything if there is evidence that Dr Shetty knew that Personal Guarantees were being issued purporting to be signed by him. That is something Mr Gupta could throw no light on, except to the limited extent of describing second hand the activities of individuals within the Bank. Ultimately, I did not find his evidence to be of great assistance.

27. Mr Gaurav Juneja joined the Bank in 2005 in a mid-office role in Delhi, India, and moved to Dubai in 2017 to take up the position of Corporate Relationship Manager in the Corporate Banking Team in the DIFC Branch of the Bank. He explained his role as being to manage the Bank’s relationships with corporate clients in the UAE, with responsibility for such things as overseeing the compliance process for existing and new clients, assessing the feasibility of loan requests and managing the day to day relationship with corporate clients.

28. When he arrived in the DIFC, the Bank had already made available a large sum to NMC under the existing Facility Agreements. In March 2019 the Bank entered into a further short-term loan to NMC for the amount of USD 50 million. Dr Shetty provided a Personal Guarantee for the loan (NMC Personal Guarantee 3). However, Mr Juneja confirmed in his oral evidence that he did not see Dr Shetty signing any documents, nor did he know anyone who had seen his signing any of them.

29. During his time managing the NMC relationship Mr Juneja had regular contact with individuals from NMC, and held in person meetings with individuals from NMC on at least a quarterly basis. But he did not suggest in his evidence that any of these meetings were with Dr Shetty.

30. Mr Juneja described the procedure for finalising loan agreements and obtaining executed versions of the relevant documentation in substantially the same terms as described by Mr Parekh. He explained that the process was in place to ensure that all documents were properly signed by the correct individuals. He insisted that the signature should be done in pen and ink. He had never come across a document which did not have a wet ink signature (i.e. pen and ink or ballpoint) on it.

31. Mr Juneja referred to an email of 2 July 2018 sent to Mr Kumar and Mr Nair of NMC enclosing execution copies of various documents prepared by the Bank in connection with the renewal of the 2012 Working Capital Financing and 2013 Master Facility Agreement, including a Personal Guarantee to be signed by Dr Shetty. The email specified that “all documents are to be executed by Dr BR Shetty”. The documents were duly signed by Dr Shetty and the original signed documents were collected by a relationship manager of the Bank in line with the process set out above. The relationship manager would have verified Dr Shetty’s signature on the documents, including the Personal Guarantee; and the Credit Middle Office Group would carried out a secondary review and verification of the signatures. If there had been a mismatch in the signatures on the documents this would have been picked up in the course of the verification process and the matter would have been raised with NMC.

32. Mr Juneja said that he was also responsible to managing the Bank’s relationship with Modular. Modular was a separate entity from NMC, engaging in medical and hospital engineering and construction. As far as he knew, there was no common shareholding between NMC and Modular. There was no common control, direct or indirect. Modular was neither an affiliate nor a subsidiary of NMC. The promoter of Modular was a Mr Kukkinadi Pradeep Kumar, a relative of Dr Shetty. In June 2019 the Bank entered into a Facility Agreement with Modular (the Modular Facility Agreement) in terms of which the Bank would make available to Modular in the amount of USD 15 million. Mr Juneja was personally involved in much of the discussion about entering into the Modular Facility and the Modular Personal Guarantee and with the logistics of obtaining the executed versions of the relevant documentation. He and Mr Parekh dealt primarily with Mr Kumar, whose primary role was as Assistant Manager in the Treasury and Banking Operations team of NMC, to negotiate and arrange the execution of these documents. He referred to an email from Mr P Kumar dated 27 June 2018 attaching execution copies of relevant documents, including the Modular Personal Guarantee signed by Dr Shetty.

33. The same process was followed in respect of the 2019 NMC Facility Agreement. Along with his colleague, Mr Choudhary, Mr Juneja handled the negotiation and administrative process leading up to its execution on 27 March 2019. He referred to an email dated 27 March 2019 showing a large number of individuals within NMC involved in the negotiation and execution of the Agreement and attaching the final signed NMC Personal Guarantee 3. No one at NMC ever raised any concern regarding Dr Shetty’s signature on the document.

34. Dr Shetty was considered a prominent and important person from the Bank’s perspective, both as the founder of NMC and also as an important private client of the Bank. He was considered by Mr Juneja and his team as the “promoter” of the 2019 NMC Facility Agreement and of the previous loans made available to the NMC Group. Mr Juneja never met Dr Shetty. Given that he was the founder and largest shareholder of NMC, he would not have expected him to be dealing with the day to day relationship of the Group with one of its lenders. However, he must have been fully aware of the relationship between the Bank and NMC, since the Bank loaned NMC significant amounts of money and most of the documents were signed by him. Dr Shetty stepped down as CEO of NMC in 2017. However, on 31 March 2019, following execution of the 2019 NMC Facility Agreement and related documents, Mr Sreekanth Nair sent the Bank a copy of a certificate issued by the Bank of Baroda confirming the list of signatures for NMC. Dr Shetty’s was the first name on that list. This tends to show that he remained closely involved in the day to day running of NMC despite having stepped down as CEO two years earlier.

35. Again, I accept that Mr Juneja was an honest and reliable witness. But, again, he never met Dr Shetty and therefore could not speak directly to Dr Shetty’s involvement in these matters. But his evidence confirms the Bank’s dealings with NMC and the actions of relevant individuals at NMC in submitting documents bearing to be signed by Dr Shetty. And his evidence did offer some insight into the Bank’s dealings with Modular, all handled through NMC.

36. Mr Vikash Sharma is the President and Chief Executive of ICICI Bank Canada, a subsidiary of the Bank. He joined the Bank in Mumbai in 2004, moved to Singapore in 2007, acted as country head of the Bahrain branch of the Bank from 2010 to 2014, moving to Dubai in 2014 where he took on the role of head of wholesale banking for the MEA region. In 2016 he became Senior Executive Officer of the DIFC Branch of the Bank and remained in that role until 2021 when he returned to India and, in 2023, to Canada.

37. When he took over as a SEO of the DIFC branch of the Bank in 2016, NMC, then known as NMC Healthcare Ltd, was an existing client of the bank, having available to it a substantial sum under the terms of the 2011/2012 NMC Facility Agreements and the 2013 NMC Facility Agreement. NMC was a significant client of the Bank, so much so that Mr Sharma became closely involved in the relationship with NMC and focused on enhancing that relationship. As part of this relationship building he was in contact with Dr Shetty (and Mr Prasanth Manghat) and met Dr Shetty in person at least once a year from 2014 until March 2020. The meetings would normally take place at the NMC offices in Abu Dhabi. He also used to have telephone conversations with Dr Shetty. The purpose of such meetings and conversations was to discuss the financing requirements of NMC and the Bank’s exposure to the NMC Group. Except on one occasion (as to which see below) they did not directly discuss the NMC Personal Guarantees but there was no doubt in his mind that Dr Shetty was fully aware of the significant loans made by the Bank to NMC, the general terms of those loans and the security documentation in place alongside them.

38. At the start of 2020 the Bank became very concerned that the NMC Group was in financial difficulties. This was prompted by the publication of the Muddy Waters Report in December 2019 alleging that the Group had been poorly governed and had been seriously under-reporting its ongoing liabilities. In February 2020 NMC stopped paying sums due under the various NMC Facility Agreements. On 11 February 2020 the Bank issued a formal demand letter to NMC and to Dr Shetty as Personal Guarantor. The letter was delivered to Dr Shetty at his personal address in Abu Dhabi.

39. Given the situation, Mr Sharma sought a meeting with Dr Shetty. A meeting was arranged for 27 February 2020. However, the day before the meeting was due to take place Mr Sharma received an email indicating the Dr Shetty would not be able to attend the meeting as his brother was critically ill. There is no reason to doubt that this was the reason for Dr Shetty not being able to attend. Thereafter efforts were made to fix another date for a meeting. On 27 February a further demand letter was sent to Dr Shetty at his Abu Dhabi address but the Bank became aware that Dr Shetty had “fled Dubai”, as they put it, and returned to India.

40. Eventually a meeting was arranged to take place at the Taj Hotel in Bangalore, opposite Kempegowda International Airport. The meeting took place on about 5 or 6 March 2020. Mr Sharma was accompanied by Mr Sriram H Iyer, Head of the International Banking Group.

41. Mr Sharma said that, during that meeting, he made clear to Dr Shetty the Bank’s serious concerns about its exposure to the NMC Group. He recalled that Dr Shetty “stating ... two things which are highly relevant to these proceedings and the defence that he is pursuing in relation to them. These were, first, that the Bank would receive the money it was owed by NMC; and second, that he acknowledged having provided Personal Guarantees guaranteeing repayment of the loans issued under the NMC Facility Agreements and the Modular Facility Agreement and that he would honour his liabilities thereunder.” In other words, Dr Shetty expressly acknowledged the existence of the various Personal Guarantees and his liability to repay the sums being claimed in these proceedings. His defence in these proceedings, namely that he did not sign the Personal Guarantees, is, according to Mr Sharma, directly contrary to what he said at the Taj Hotel Meeting.

42. On 30 August 2023 Dr Shetty contacted Mr Sharma by WhatsApp expressly acknowledging that this meeting had taken place and asking him to (Mr Sharma) confirm the name of the person who had accompanied him to the meeting.

43. Mr Sharma was also a credible witness. The critical part of his evidence relates to the Taj Hotel meeting and the alleged acknowledgement by Dr Shetty of his liability under the Personal Guarantees. Dr Shetty says that there was no mention of them. I deal with Dr Shetty’s evidence below, but the evidence given by Mr Sharma on this meeting is coherent and makes sense. It is not in dispute that the meeting took place at about that date. Nor would it be surprising that at that meeting Mr Sharma should mention the NMC Personal Guarantees. It is not in dispute that the Bank, through its officers (including Mr Sharma), believed that Dr Shetty had given Personal Guarantees. The Bank had called for the meeting to seek re-assurance in light of the Muddy Waters Report. Against that background it is difficult to accept that the NMC Personal Guarantees were not mentioned at all by Mr Sharma at the meeting. There would have been no reason not to mention them.

The Defendant’s evidence

44. Dr Shetty gave two witness statements and was cross-examined on both of them.

45. His first witness statement was made under affirmation in the context of the document production process in this case. It is useful as setting out his case. In paragraph 2 of that Witness Statement he gives a brief summary of his assertions in his Statement of Defence in the case. He says that he did not personally guarantee the Bank’s lending to NMC and Modular by signing the Personal Guarantees. He was first made aware of the Bank’s claim against him only after being served with the Particulars of Claim on 19 April 2023. There was a “possibility” that the “forgery/misuse” of his signature was carried out by one or more of NMC’s and Modular’s management in breach of their fiduciary duties. The individuals responsible for the affairs of NMC are no longer residents of the UAE. To the best of his knowledge and understanding, NMC was mismanaged by those same individuals who have now absconded to avoid legal scrutiny. He relies upon the opinion of an experienced and qualified forensic document examiner concerning the forgery or misuse of his signature on the documents relied upon by the Bank. He does not acknowledge any obligation to prove who forged or misused his signature. But he did not consent to the NMC or Modular Personal Guarantees nor did he sign any of the relevant documents. Later, in paragraph 11 of that Witness Statement, he adds this. Since at least 2017, when he stepped down from the position of CEO of the NMC Group:

“I have not been part of the day to day management and was never made aware of any of the arrangements that give rise to the Facilities or the Personal Guarantees and any other documents upon which the Claimant relies. I did not sign or authorise any person to sign the Personal Guarantees or any other documents.”

46. In his second witness statement Dr Shetty comments on the witness statements filed by the witnesses for the Bank identified above. It is unnecessary to set out those comments in detail. He makes the point that the various witnesses, apart from Mr Sharma, have not met him or seen first hand any evidence that he signed the relevant documents. They relied on the fact that NMC personnel sent over copies of documents bearing to be signed by him, but which he says are forgeries. So far as concerns Mr Sharma, he acknowledges having met him on occasions, but only in the context of visits to Dubai by the Chairman and CEO of the Bank in India. He did not recall any interaction with Mr Sharma regarding the Facility Agreements or the alleged Personal Guarantees and flatly denies having engaged in any discussion with Mr Sharma about the Facility Agreements before 2020. He denies having “fled” to India in early 2020. He confirmed having met Mr Sharma at the Taj Hotel in March 2020 but denied that there was any discussion about Modular there and denies that there was any discussion with Mr Sharma about Personal Guarantees allegedly given by him as security for the sums advanced under the Facility Agreements. He became aware of the claim that he had undertaken personal responsibility under the Personal Guarantees only when the Particulars of Claim were served on him in April 2023.

47. Dr Shetty was cross-examined in some detail. He adhered to his evidence in his statements. But certain matters were fleshed out and are of some importance.

48. He described his role in setting up NMC. He was a qualified pharmacist. He moved to the UAE in 1973. In 1975 he founded New Medical Centre Health, which later became NMC and the NMC Group. NMC was the first private healthcare provider in the UAE. It started initially as a pharmacy but then expanded. He was shown the NMC Group’s audited annual accounts for the year ending 31 December 2012. It gave a summary of the “Journey So Far”. The first hospital opened in Dubai in 1999. A large hospital was opened in Al Nahda in 2004, and another in Halian in 2008. By 2012 NMC had six hospitals in the UAE, a number of pharmacies and a distribution group that also distributed medical supplies to different people in the UAE. By then NMC had established itself as a vast healthcare provider, the largest healthcare group in the UAE. Dr Shetty acknowledged that by that point he had become a very wealthy man from the success of the business. He featured in Forbes’ Wealthiest Indians List at number 97 and was mentioned in other trade publications as being a very wealthy Indian businessman in Dubai. In 2005 he was awarded the Abu Dhabi Award, the highest civilian honour in the UAE. He was a man of very considerable stature. In about 2012 the initial public offering for NMC took place on the London Stock Exchange. A UK Plc was established, which became the parent company of the various subsidiaries owning different hospitals. Dr Shetty was CEO of the UK Plc. He was the most senior individual at NMC at that time. The Group had a number of working capital facilities from lenders. They were used to service the day to day business of the Group. They also had some larger long-term debt provisions, including a significant loan of about USD 120 million from JP Morgan Chase. That was all part of the initial public offering. Total debt at the end of 2012 was about USD 300 million. He was uncertain whether he had given a Personal Guarantee in respect of the JP Morgan Facility, or in respect of other loans to the company from other bankers. He could not recall. He was shown an entry in the accounts for the company recording that both he and Mr Al Butti had personally guaranteed the JP Morgan facility. He said that this was the first (and only) time he had ever had a loan backed by a Personal Guarantee. It was put to him that the document showed that he had personally guaranteed all lending to the NMC Group companies. After considerable hesitation he agreed that that was the case.

49. Dr Shetty confirmed that at this time (2012) he had a very large staff assisting him in the day to day management of the companies in the NMC Group. He would be executing many documents on behalf of the Group, both for the Plc and for the subsidiaries in the UAE. There would be a large number of lawyers, consultants and bankers involved with the Group at that juncture. There would be a lot of activity generating thousands if not tens of thousands of emails on a regular basis. He would not be copied into every e- mail, only the important ones. But there would be thousands of documents which he would need to sign.

50. Jumping ahead, Dr Shetty confirmed, by reference to the audited accounts for subsequent years, that he was actively involved in the running of the company, having attended, by way of example, eight out of nine board meeting of the UK Plc in the course of 2014. But he sought to distance himself from decision making; he was never in management, management was left to the deputy vice chair, the deputy CEO and others approved by the Board.

51. Dr Shetty stood down as CEO in April 2017 and became non-executive joint chairman. But he was still the largest shareholder and still retained a significant interest in the company, and as such had a role to play. However, he maintained that he did not have a role in day to day management of the company.

52. He (possibly) recalled meeting Mr Vikash Sharma in about 2014 although he was not sure about the date. He would meet the chairman of the Bank whenever he came to Abu Dhabi, about once a year, or once every two or three years, but he never mentioned the loan facilities between the Bank and NMC. Dr Shetty did not recall Mr Sharma attending any such meetings. He did not meet Mr Sharma when Indian Prime Minister Modi came to the UAE in 2019. He did however recall meeting Mr Sharma in 2020 in Bangalore. It was about the indebtedness of NMC to the Bank. But there was no discussion about Personal Guarantees because he had not signed any Personal Guarantees.

53. It is worth noting that Dr Shetty agreed that the Bank did actually lend money to NMC under the facilities in question in this case.

54. So far as concerns Modular Concepts, Dr Shetty denied that it was a company owned by him. He knew the name Modular Concepts. It had been a maintenance company of his but Mr Manghat made it into a construction company. It never did any construction work for hospitals run by NMC. He did not know that thirty per cent of the shares in Modular were held by Mr Rai, his brother-in-law (his wife’s brother). But he was adamant that Mr Rai had nothing to do with Modular – he was head of procurement at NMC. He denied that Modular had anything to do with NMC. It did not share an office with NMC or have an office in the same block. He was referred to emails between members of staff at NMC and the Bank concerning a loan agreement between the Bank and Modular in 2018. His response was to express incredulity; what has NMC got to do with Modular? He was shown the signature on the Modular Personal Guarantee but, as with other documents, he denied that this was his signature or even looked like it.

55. Dr Shetty said that when he signed a document he would normally use a ballpoint pen. He would never sign electronically, with an electronic signature. Nor did he ever authorise any individual to sign documents on his behalf with an electronic signature. This was not a problem, since the Board authorised him to give a power of attorney to the Chief Financial Officer (“CFO”). The CFO would sign documents in his name, but not using an electronic signature. They were not authorised to sign on his behalf (i.e. applying his signature).

56. The first time NMC borrowed money from ICICI Bank was in about 2011. He was shown the Master Facility Agreement entered into between the Bank and NMC in 2011, initially with a limit of USD 5 million. He did not recall seeing this document before. He denied signing or initialling the document. He accepted that the document bore the stamp of NMC but said that that must have been put on by the CFO. As to the signature at the end of the document, he said: “Looks like my signature, but maybe it’s a fake. Maybe signature expert can check, the signature expert. I’m sure there’s a fraud in this.” He added: “Looks like, yes, looks like it, but that is not my signature. My people, my people did it, or other people. I don’t know who did it.” It was put to him that both handwriting experts had confirmed that it was his signature on the document, but he denied it. He said he did not use pen and ink, only a ballpoint Parker pen. It was put to him that the experts had confirmed that the document was indeed signed with a ballpoint pen. His response was that they would have to check with another expert. It was not his signature.

57. Dr Shetty was then taken to the Supplemental and Amendatory Agreement dated 24 September 2012. He said he did not recognise it. In clause 12 there is a reference to him as a “promoter/personal guarantor”. He said he never used the term “promoter”. He was the “founder”. He was shown the signatures at the end of the document. They were not his signatures: “No way, sir, it’s not mine at all.” When it was pointed out that both experts had agreed that at least one of the signatures was his, he repeated that it was “not mine at all”.

58. Dr Shetty was then shown NMC Personal Guarantee 1 and in particular the electronic signature on the last page. He said that it did not look like his signature, it was “like a copy somebody is making, trying to copy.” He had not directed anyone to apply his signature electronically. There were, he said, two crooks in the organisation (Mr Manghat, the CFO, and Mr Kumar, the treasurer) doing it all. They made the company collapse. He was pursuing them in court in the United States and then in Abu Dhabi.

59. He was shown other documents and other signatures. His answer was always the same: it was not his signature, he did not sign, he did not authorise anyone to apply his signature electronically, he was unaware of the facilities granted by the Bank, he had not seen the document before these proceedings. I do not propose to set out his answers document by document. To do so would serve no purpose.

The Expert Evidence

60. The purpose of the expert evidence was to help in determining whether any and if so which of the disputed signatures on the critical documents were or were not genuine.

61. Ms Radley, who was called by the Bank, set out her methodology in her first Report in a section headed “The Examination of Signatures – Theory and Practice”. I did not understand the usefulness of that methodology to be disputed, but to the extent that it was disputed I accept it. Much of it appears to reflect what might otherwise be thought to be common sense, but since the application of common sense (especially judicial common sense) without any basis in evidence is open to challenge as subjective and potentially biased, it is useful to summarise that methodology here.

Ms Radley said, and I accept, that the above principles, which are based on the experience of many forensic document examiners, are accepted in the forensic document field as standard practice. I do not find that surprising since, as already indicated, they largely accord with common sense, and I accept her evidence on this point.

62. In the course of expressing her views on the signatures in the various documents put before her, Ms Radley adopted a scale ranging from “conclusive evidence” that the relevant individual wrote his or her signature at one end of the scale to “conclusive evidence” that he or she did not write it at the other end of the scale. She attached to her Report a “Glossary of Opinion Terminology for Handwriting/ Signatures” explaining the terms she used in assessing the likelihood that Dr Shetty wrote any particular signature. I quote from that Glossary in so far as it deals with degrees of confidence in attributing a piece of writing to a particular individual:

Ms Radley summarises her evidence on this point by saying that opinions expressed as “conclusive”, “very strong” and “strong”, as in categories (a) - (c) above, are all terms of high confidence. Categories (d) and (e) are not in the same league, but they still indicate that it is more likely than not that the writing is that of the individual concerned. Ms Radley goes on to say that sometimes an “inconclusive” opinion will be offered, which speaks for itself, and then there are cases where the opinion may be that the particular individual probably did not write it, with the same range of degrees of confidence as set out above.

63. In his Report submitted to the Court, Mr Al Bah did not set out in detail the terminology applied to various degrees of confidence that a signature was or was not genuine. But as regards many of the documents he expressed an opinion in the following manner: “By comparing the signature(s) attributed to Dr Shetty ... with the specimen signature of Dr Shetty, we found the signature falls within the range of normal variation of valid client signatures, and there are no technical issues linking signature to Dr Shetty”. I understood such wording to indicate a high degree of confidence in the genuineness of the particular signature.

64. One complication in this case is that many of the signatures examined by the experts were not written on the relevant document by hand, with pen and ink or with a ballpoint pen. Many, perhaps the majority, were applied “electronically”, by copying a pre-existing signature and applying it to the document by “toner” or printer ink. According to Ms Radley, and I did not understand Mr Al Bah to disagree on this, it is an easy process to transpose a genuine signature from one document onto another, using scanning and re- printing processes or basic computer software. If undertaken with a modicum of care, such a transposition would only be likely to be detected if another identical signature could be found, since no individual signs in exactly the same way twice. And there is nothing necessarily wrong with a signature being transposed in this way; an individual may choose for whatever reason to append a signature in his own name on a document in electronic form, using, for example, a scanned signature, or he might authorise another person to do it for him. Contrary, therefore, to the opinion expressed in his first Report by Mr Al Bah, the use of a copy or electronic signature is not per se indicative of fraud or forgery. It follows that the role of the expert in considering a copy or electronic signature of this type is more limited. The expert can, of course, give evidence as to the provenance of what might be referred to as “the underlying signature”, and express a view with whatever degree of certainty that it was or was not written by the individual in question. But the expert can offer no view as to the circumstances in which the signature came to be applied to the document in question, and whether the application of the signature in that form was approved or authorised by that individual. Still less can he or she provide any insight into whether the use of a copy signature in a particular case is indicative of forgery or fraud. I come back to consider this in more detail below. To be fair to Mr Al Bah, on further consideration he recognised that there could be innocent explanations for the use of copy or electronic signatures and he therefore recognised that the use of such signatures did not necessarily indicate fraud or forgery.

65. I should mention one more point of general application on which Mr Al Bah focused in his Report. He pointed out that some documents bore the marks of having been stapled and re-stapled more than once; and on occasions it appeared that not every page in a document had been printed on the same printer or with the same ink. These observations are of course of interest, but they do not in themselves indicate fraud or any misfeasance. Nor was there any suggestion by Dr Shetty in his evidence that he believed that the document he had signed on the last page had been tampered with by the substitution of one page for another. Had he given evidence to this effect it might have been necessary to consider the point in detail. But he did not do so. His evidence was entirely inconsistent with that. His only case in defending this action was not that a fraud had been perpetrated by substituting pages on a document after he had signed it – his case was simply that he had not signed any of the relevant documents at all. For this reason, I will not say any more about this aspect of Mr Al Bah’s evidence; it simply does not merit further consideration in this case.

66. Ms Radley was instructed on behalf of the Bank to examine 13 specific documents to give her opinion as to whether or not the signatures on those documents were signatures written by Dr Shetty. In her first Report in this case Ms Radley identified these documents as Q1 – Q13. It is not clear to me why this exercise was limited to 13 documents, since the Bank seeks to prove that Dr Shetty personally signed and was bound by Personal Guarantees given in support of four separate Facility Agreements. Nor is it entirely clear to me why the exercise was carried out on documents which could at best only be of tangential relevance, such as a “DSRA Agency Fee Letter” (Q9) and an “Attorney’s Certificate” (Q10). Somewhat surprisingly Ms Radley was asked to examine the 2019 NMC Facility Agreement (Q13) despite it being clear that that document did not bear any signature in the name of Dr Shetty. And she was only asked to examine two of the four Personal Guarantees in issue in this case (the 2019 NMC Personal Guarantee and the Modular Personal Guarantee), and only one of the letters purportedly from Dr Shetty extending the validity of NMC Personal Guarantees 1 and 2 from year to year.

67. Mr Al Bah was instructed by the Defendant, Dr Shetty, to consider the same documents, as well as some others of less central importance. He labelled the documents numerically, though the order in which he considered them did not follow the same pattern as Ms Radley. When considering the particular documents of significance in this case I shall refer to them by reference to both Ms Radley’s and Mr Al Bah’s nomenclature, for example as “Q7/Doc.16”.

68. Their findings in respect of some of the critical documents are of great importance. I summarise them below.

The Modular Facility Agreement and the Modular Personal Guarantee

69. The Modular Facility Agreement was not signed by Dr Shetty. But it does contain a provision requiring a Personal Guarantee to be granted by Dr Shetty as Personal Guarantor, that Personal Guarantee being one of the Security Documents listed in the Agreement.

70. The Modular Personal Guarantee (Q4/Doc.8) had on it a signature bearing to be that of Dr Shetty; and there was, in Ms Radley’s view, “very strong evidence” to support the proposition that Dr Shetty wrote that signature. But that signature on the Personal Guarantee had not been written in pen and ink. Rather it had been printed on it with toner. In other words, the underlying signature was Dr Shetty’s signature, but that signature had been copied and then printed on the Personal Guarantee with toner. Ms Radley was unable, for obvious reasons, to say whether a signature in that form was ever applied by Dr Shetty to an original version of the Personal Guarantee. Nor was she able to say whether Dr Shetty himself had copied that underlying signature, or whether he had himself applied that copy signature to the Personal Guarantee or whether he had authorised its application thereon. Mr Al Bah regarded this as an example of a forged signature, because it had been placed on the document electronically, but for reasons given above I consider that this is not something on which he is able to give an expert opinion. He does not in terms say whether the underlying signature was a genuine signature of Dr Shetty, but his emphasis on the forgery aspect suggests strongly that on this aspect he agreed with Ms Radley about the authenticity of the underlying signature.

71. The Modular Personal Guarantee (Q4/Doc.8) was dated 26 June 2019. Ms Radley pointed out that the signature on the Modular Personal Guarantee (Q4/Doc.8) was identical to that on NMC Personal Guarantee 1 dated 20 December 2012 (Q1/Doc.12). It followed, since no two signatures are ever identical, that one was a transposition of the other or that both were transpositions of a signature on a further unidentified document. It also follows, if Q1 and Q4 (Doc.12 and Doc.8) were correctly dated, that the signature applied to the Modular Personal Guarantee (Q4/Doc.8) in June 2019 was transposed from an underlying signature created in or before December 2012 (on Q1/Doc.12).

The 2011/2012 NMC Facility Agreements and NMC Personal Guarantee 1

72. Ms Radley examined the signatures in name of Dr Shetty on both the 2011 NMC Master Facility Agreement dated 29 December 2011 (Q5/Doc.2) and the Supplemental and Amendatory Agreement dated 24 September 2012 (Q6/Doc.1). These were not electronic copy signatures, so that complication does not arise in this case. Both documents had been signed in “black non-ballpoint pen ink”. She concluded that there was “very strong” evidence that Dr Shetty wrote the signature on the 2011 NMC Master Facility Agreement (Q5/Doc.2) and “strong” evidence that he wrote the three questioned signatures on the Supplemental and Amendatory Agreement (Q6/Doc.1). Mr Al Bah appeared to agree with this assessment (“no technical issues ...”).

73. As already noted, the 2011/2012 NMC Facility Agreements were extended by Letters of Amendment signed in name of Dr Shetty. Ms Radley and Mr Al Bah both examined the signatures of three of those Letters of Amendment, namely those of 26 November 2013 (Q7/Doc.16), 14 August 2016 (Q11/Doc.15) and 25 July 2017 (Q12/Doc.14). The questioned signatures were all written in black non-ballpoint pen ink, so no issue about copy signatures arises here. Ms Radley concluded that there was very strong evidence to support the conclusion that Dr Shetty had signed the first of these, moderate evidence to support the conclusion that one of the signatures on the second document was his signature, and strong evidence to support the conclusion that the two signatures on the third document were his signatures. Mr Al Bah appeared to agree that these were very probably written by Dr Shetty (“no technical issues ...”).

74. It has already been pointed out that the signature in name of Dr Shetty on NMC Personal Guarantee 1 dated 20 December 2012 (Q1/Doc.12) was an electronic copy signature transposed onto the document by toner. Comparison with other known signatures of Dr Shetty led Ms Radley to conclude that there was “very strong” evidence that Dr Shetty wrote the underlying signature, but she (obviously) could not say anything about the circumstances in which that signature had been transposed onto the Guarantee. Mr Al Bah considered that the signature was a forgery, but that was only because it was a copy signature transposed electronically. He did not question the authenticity of the underlying signature.

75. However, although Dr Shetty’s signature applied to NMC Personal Guarantee 1 (Q1/Doc.12) was a copy signature, that Guarantee was extended annually from November 2013 until September 2019. The Letter of Continuation dated 25 October 2014 (Q8/Doc.11) was signed in name of Dr Shetty. That signature was examined by Ms. Radley and Mr Al Bah. It was written in blue non-ballpoint pen ink. Ms Radley concluded that there was very strong evidence to support the proposition that the signature was that of Dr Shetty. Mr Al Bah appeared to agree with that (“no technical issues ...”).

76. It is, in addition, of interest to note that each of the Letters of Amendment signed in ink by Dr Shetty include pages (marked in each case as an Annexure to the Letter) confirming the Personal Guarantee given by him. The Annexures to the Letters of Amendment on 14 August 2016 (Q11/Doc.15) and 25 July 2017 (Q12/Doc.14) bear his signature and refer in terms to the Personal Guarantee given by him as Personal Guarantor

The 2013 NMC Facility Agreement and NMC Personal Guarantee 2

77. The 2013 NMC Facility Agreement is dated 24 December 2013. Ms Radley was not asked to examine it.

78. However, Ms Radley did examine the signature on NMC Personal Guarantee 2 of the same date (Q2/Doc.10), which in turn specifically refers to the 2013 NMC Facility Agreement. NMC Personal Guarantee 2 (Q2/Doc.10) bears two signatures in name of Dr Shetty. Both are written in black ballpoint pen ink. There is no issue here about copy signatures. Ms Radley concluded that there was “very strong” evidence that both signatures were written by Dr Shetty. Mr Al Bah appeared to agree with this assessment (“no technical issues ...”).

The 2019 NMC Facility Agreement and NMC Personal Guarantee 3

79. Ms Radley did consider the signatures on the 2019 NMC Facility Agreement (Q13/Doc.13) and NMC Personal Guarantee 3 (Q3/Doc.9).

80. So far as concerns the 2019 NMC Facility Agreement dated 27 March 2019 (Q13/Doc.13) both Ms Radley and Mr Al Bah confirmed that this was signed by Mr Suresh Kumar VK and did not bear a signature in the name of Dr Shetty.

81. So far as concerns NMC Personal Guarantee 3 (Q3/Doc.9), also dated 27 March 2019, Ms Radley found three relevant signatures in the name of Dr Shetty. Each was identical. None of them were made on the Guarantee in pen and ink (or in ballpoint); each had been applied electronically, by toner. They are identical to the signature on another document (C7) dated 27 December 2016, and therefore, if that dating is correct, the underlying signature must have been written on or before that date. Mr Al Bah agreed that the signatures in name of Dr Shetty were scanned copies applied electronically, though he added that therefore these signatures were forgeries (as to which see above).

Discussion

82. The short question in this case is whether the Personal Guarantees are enforceable against Dr Shetty. If they are, there is no dispute that he would be liable to repay the sums owed by NMC and to indemnify the Bank for any cost, loss or liability arising out of an NMC's failure to pay. The same applies to the Modular Personal Guarantee. If that is enforceable against Dr Shetty then there is no doubt that he would be liable to repay the sums owed by Modular and to indemnify the Bank for any costs, loss or liability arising out of Modular’s failure to pay.

83. The question can be narrowed still further to focus on the question whether Dr Shetty signed the relevant Personal Guarantees. At this point there is the apparent complication raised by the use, in some cases, of electronic or copy signatures. If Dr Shetty signed the Personal Guarantees in the conventional meaning of that word, with a “wet ink” signature, i.e. with pen and ink or a ballpoint pen, there is no difficulty: he is clearly bound by it. But the Bank’s case relies in many instances on electronic or copy signatures. The question here is whether it can be shown that those were made by or authorised by Dr Shetty. If they were then they are binding on him as much as if he had applied a wet ink signature. There is no dispute about this.

84. Accordingly, the simple question in this case is whether Dr Shetty signed the Personal Guarantees or any of them with a wet ink signature or, if he did not, whether he applied or approved the application of electronic or copy signatures.

85. Before turning to the evidence, I should deal briefly with certain legal arguments that were raised. I do not propose to deal with points of law which I have ruled are inadmissible (see para. 5 above) or new lines of defence, mainly based on UAE law, of which no prior notice had been given.

86. On behalf of Dr Shetty reference was made to the duty of care imposed on the Bank in relation to its customers, especially in a case where the customer was signing personal guarantees or the like. I was referred to Article 22 of the Electronic Transactions Law (DIFC Law No. 2 of 2017). I do not propose to go into this in detail. The problem does not arise in the present case. If Dr Shetty signed the Personal Guarantees, whether with a wet ink signature or using an electronic copy signature, then he is liable on them. If he did not sign them, or authorise their signing, then he is not liable. It is not suggested that he was improperly made to sign them through some carelessness of the Bank nor that he has suffered loss in some way as a result of the Bank’s breach of such duty.

87. The resolution of the disputed issues in this case depends on assessing and weighing up the evidence given by the witnesses and the inferences that can be drawn from the documents. Article 50 (Application of Evidence) of the DIFC Court Law (DIFC Law No. 10 of 2004) provides that, where proceedings are instituted in the DIFC Court, the rules of evidence to be applied in the proceeding will be the rules that: (a) are prescribed in DIFC Law; or (b) are applied in the courts of England and Wales; or (c) the DIFC Court considers appropriate to be applied in the circumstances. This provision was applied by Justice Michael Black KC in IDBI Bank Limited (DIFC Branch) v Fast Telecom General Trading LLC & Ors (CFI 090/2021) (4 April 2023) at para.25, in rejecting a submission that the status of a certain piece of evidence in that case was to be determined under UAE law. I propose to consider the evidence in the present case on that basis.

88. On behalf of the Bank, it was argued that under DIFC law the burden of proof was on the person alleging forgery to prove that the documents were in fact forged. Reliance was placed on the decision of the Court of Appeal in Saif Saeed Sulaiman Mohammed Al Mazrouei v Bankmed (SAL) [2019] DIFC CA 011 at para.42. In that case the court pointed to the adversarial nature of the legal system in the DIFC and said:

“It is not for the common law judge to enter the arena and begin digging for evidence on behalf of either party. In this case there is an allegation of forgery and it is up to the party making the allegation to produce its evidence to support it.”

Reliance was also placed on the decision of Justice Michael Black KC in IDBI v Fast Telecom (supra) at para.33, where he said: “the burden of proving forgery is undoubtedly on the Fifth Defendant.”

89. I do not think the authorities go as far as that. Saif Saeed was a very unusual case. The defendant had failed to raise the question of forgery until a very late stage and even then appears to have expected the court to do its own investigation into the allegation of forgery. It was that situation which the Chief Justice was addressing in the quoted passage. Nor do I understand the remark in IDBI v Fast Telecom to be a considered statement of the law applicable to all situations. In my view too much emphasis is placed upon the fact that the allegation is one of forgery. There are no special rules applicable to such an allegation. The normal rules apply. The legal burden of proof lies on the person needing to prove the particular thing in order to succeed in his claim or defence. While the evidential burden may shift according to how the evidence comes out, the legal burden does not change. In the present case it is for the Bank to prove that Dr Shetty signed the Personal Guarantees or allowed his signature to be used on them. There is no legal burden on Dr Shetty to disprove that, whether by alleging forgery or any other kind of fraudulent behaviour. His case on fraud does not have to be proved, let alone to any particular standard: c.f. Bank St Petersburg v Arkhangelsky [2020] EWCA Civ 408. Of course, it might strengthen his case if he was able to point to something supporting that allegation, but ultimately it remains for the Bank to prove that he was party to the Personal Guarantees sued upon.

90. In the present case the forgery or fraud issue is relatively straightforward. Dr Shetty does not present a case that his signature on a particular document was forged by a particular individual or individuals on a particular day in particular circumstances. He simply says that though the signatures may look like his, and he does not always go this far, he did not in fact sign any of the relevant documents or give his authority to anyone to fix his signature on to the documents electronically; and a credible explanation, if the signature does look like his signature, is that it was forged, probably by people at NMC. If that is accepted, then the Bank will have failed to discharge the burden of proof on it; and, incidentally, though it does not matter for this purpose, Dr Shetty may well have established at least part of his case on forgery or fraud.

91. The Bank seeks to establish its case in two ways: first, by calling witnesses of fact to depose as to the circumstances in which they received these signed documents; and second, by adducing expert evidence confirming that the signatures on the relevant documents are indeed those of Dr Shetty. Although these are separate lines of inquiry, they do overlap; but it is convenient to deal with them at this stage separately from each other.

92. I have already indicated that I found the Bank witnesses to be both honest and, within the limitations of the evidence which they gave, reliable. The qualification expressed in that previous sentence is important. Except for the instance of Dr Sharma and the meeting in the Taj Hotel in March 2020, none of the Bank witnesses could speak to any specific occasion when they had met Dr Shetty or had any direct knowledge of him having signed or agreed to sign or acknowledged having signed any of the relevant documents in this case. They could speak to the process by which they would check the document sent to them and match signatures on the documents again the signatures held by them at the Bank. Insofar as the signatures were “wet ink” signatures, made with pen and ink or with a ballpoint pen, this may have worked satisfactorily, although proof of Dr Shetty having signed in this way on certain documents is already vouched separately by the expert evidence. Insofar as the signatures were electronic or copy signatures, all the Bank’s systems could establish was that they appeared to match those of Dr Shetty held by the Bank, but they establish nothing relevant on the question of whether Dr Shetty himself appended such signatures or authorised others to do so. All they established, therefore, is a system which, on its own, does not take one very far.

93. I turn to consider the expert evidence which, in this case, is critical. Initially there appeared to be a wide gulf between the two experts. Mr Al Bah appeared to regard all the instances of copy signatures as being indicative of forgery. However, he was prepared in his oral evidence to accept that there might be some other explanation for the use of copy signatures; and that it was not for him to judge or speculate as to why copy signatures had been used in any particular case. So also his concern about stapling and different inks used to produce the signed documents. As explained earlier, this might well be relevant in a case where the person alleged to have signed the document came to court and said “yes, I signed that, but not with that page in it” or “yes, I signed it but changes have subsequently been made to pages x, y and z which I did not authorise.” But that is not Dr Shetty's evidence. So there is no factual basis underpinning the expert’s concern that the documents might have been altered after having been signed.

94. Putting these two matters to one side, there was in fact very little difference between the experts in their conclusions about the signatures on the particular documents. It is worth summarising those conclusions, and the immediate consequence of those opinions, under reference to the four Personal Guarantees in issue.

95. So far as concerns the NMC Personal Guarantee 1 and the underlying 2011/2012 NMC Facility Agreements, it is clear that the Personal Guarantee was signed electronically, albeit that the underlying signature was very likely to be that of Dr Shetty.

96. However, both experts were in agreement that the signatures in name of Dr Shetty on the Facility Agreements and the three Letters of Amendment examined by them were made in black non-ballpoint pen ink and that there was a strong probability that these signatures were genuinely those of Dr Shetty. That is important, because each of the NMC Facility Agreements themselves and the Letters of Amendment, all signed by Dr Shetty with a wet ink signature, refers to the Personal Guarantee given by Dr Shetty in connection with the Facility Agreements. In other words, although the Personal Guarantee itself is only signed with their electronic signature, it is referred to in terms in documents signed then and subsequently by Dr Shetty with a wet ink signature. By signing the Facility Agreements and the Letters of Amendment, both of which refer to his Personal Guarantee, Dr Shetty must be taken to have recognised that the Personal Guarantee was valid and binding on him even though signed electronically using a copy signature.

97. So far as concerns NMC Personal Guarantee 2 both experts agreed that the signatures in name of Dr Shetty were written in black ballpoint pen ink and that there was a strong probability that the signatures were those of Dr Shetty. Although neither expert examined the 2013 NMC Facility Agreement, this Facility Agreement was referred to in terms in the Personal Guarantee; so that Dr Shetty's signature on that Personal Guarantee confirmed that he had also signed or at least was aware of the Facility Agreement.

98. So far as concerns NMC Personal Guarantee 3, there are three signatures in name of Dr Shetty but all were copy signatures appended electronically. None of them were pen and ink or ballpoint. Both experts agree that the underlying signatures in name of Dr Shetty appeared to be genuine. The corresponding Facility Agreement was not signed by Dr Shetty but by Mr Suresh Kumar VK.

99. So far as concerns the Modular Personal Guarantee, this again was a copy signature bearing to be that of Dr Shetty. Both experts agree that the underlying signature was very probably that of Dr Shetty. The corresponding Facility Agreement was not signed by Dr Shetty but by Mr Suresh Kumar VK.

100. Dr Shetty denied having signed any of the Personal Guarantees in issue in this case. But the experts both agree that he signed a number of the relevant documents, including the NMC Personal Guarantee 2. I prefer their evidence on this point. Their finding in respect of NMC Personal Guarantee 2 directly contradicts Dr Shetty’s denial that he signed that document. I reject Dr Shetty’s evidence. I did not find him to be a credible witness and I reject his evidence where that evidence is unsupported by documentary material. It is not just this document. He refused to accept that his signature was to be found on other documents even when that fact was confirmed by both experts. And he even disputed their expert opinion that copy signatures on documents looked like his signature. This was a consistent theme of his evidence. Indeed, right from early on in his evidence he was reluctant to agree that he had ever given any Personal Guarantees at any stage, even in connection with the JP Morgan Facility in 2012, though he eventually had to accept that that was correct.

101. Dr Shetty denied that it was his signature on the 2011/2012 NMC Facility Agreements. The experts both agreed that he had signed those agreements and I prefer their evidence on this point. But the documentation in respect of these Facility Agreements, and in particular the Letters of Amendment by which that Facility was extended, is telling.

102. Take one example. NMC Personal Guarantee 1 bore a copy signature in name of Dr Shetty. Dr Shetty denied that he had authorised that process. But that Personal Guarantee was extended annually. The Letter of Continuation dated 25 October 2014 extended it for a year from that date. That Letter of Continuation was signed by Dr Shetty with a wet signature. Clearly he would not have done so unless he recognised that the Personal Guarantee was in force and effective, albeit signed only with an electronic signature. The same point can be made in respect of the Letters of Amendment in respect of the 2011/2012 NMC Facility Agreement. The experts agree that (at least) three of those Letters of Amendment were signed by Dr Shetty with a wet ink signature. Those Letters of Amendment not only extended the 2011/2012 NMC Facility Agreement but also referred to the existing Personal Guarantee. Again, this would make no sense if the Personal Guarantee itself was not recognised.

103. So the wet ink signatures on the various documents lend support to the validity of the copy signatures on others. And they corroborate the inference from all the evidence that Dr Shetty was content for his copy signature to be applied electronically, whenever necessary or convenient, so as to bind him.

104. Seen in this light the evidence from the Bank’s witnesses assumes greater importance. They speak to a system in which they would be sent signed documents, including the Personal Guarantees, without any concern about whether the signatures were applied with pen and ink, or ballpoint pen, or electronically. They would check, on two occasions in the sequence, that the signatures matched the samples held by them in their records. If they matched, then that was sufficient. It is true that the Bank’s witnesses, particularly Mr Juneja, insisted that any relevant signature ought to be made in pen and ink or ballpoint pen. I suspect that was more an aspiration than a statement of universal practice at the Bank. But I am satisfied that in this case the Bank was for whatever reason prepared to accept electronic or copy signatures. That might be bad practice, but it cannot affect the validity of the Guarantees and other documents if Dr Shetty chose to signify his consent in that way. And from the point of view of the Bank, accepting documents signed in this way makes perfect sense in a world where there was no hint from NMC or any of its officers, including Dr Shetty, that something was amiss. The documents were passed to them by people within NMC holding them out as signed by Dr Shetty in one form or another. That in itself is evidence that they were indeed authorised by Dr Shetty.

105. Separately, there is also the evidence of Mr Sharma and his meeting with Dr Shetty at the Taj Hotel early in March 2020. There is no doubt that the meeting took place. That is not disputed. There is no doubt either that by this time the Bank had sent Dr Shetty one or more formal demand letters. It matters not whether Dr Shetty received one or both of them before the meeting. Mr Sharma would clearly have had it in his mind to raise the question of Dr Shetty’s liability under the Personal Guarantees. I have no doubt that the question was raised. Who raised it first is of no relevance. I accept Mr Sharma’s evidence on this matter and reject that of Dr Shetty. I am satisfied that Dr Shetty sought to re- assure the Bank that it would receive the money since he had provided Personal Guarantees for the loans.

106. Accordingly, I am satisfied that Dr Shetty signed or authorised the signing of the three NMC Personal Guarantees, and the other NMC documents to which I have referred.

107. The position with the Modular Personal Guarantee is more difficult. The signature on this document is a copy signature, applied electronically. There are no related documents bearing any signature from Dr Shetty, still less any wet ink signature. There is little evidence as to the circumstances in which Dr Shetty might have signed a Personal Guarantee covering Modular’s indebtedness to the Bank. Mr Juneja suggested that the Modular Facility might have been granted for an EPC contract awarded to Modular by NMC. But, if that was the case, why would the Bank require a Personal Guarantee from NMC, who would be paying Modular under the EPC contract, or from Dr Shetty, who had no direct interest in Modular or in the success or otherwise of their business. There is, it is true, the email of 26 June 2018 from Mr Parekh, copied to Mr Juneja, which identifies a personal guarantee by Dr Shetty as one of the documents requiring execution, which was responded to by Mr Praveen Kumar the next day, but it is not easy to tie that date in with the Modular Personal Guarantee in issue in this case, which is dated June 2019, almost exactly a year later. Mr Parekh was not asked about this. Then there is Mr Sharma’s evidence about the meeting in the Taj Hotel in early March 2020. I have already said that I accept that evidence in so far as it related to Dr Shetty providing reassurance that he would honour his obligations under the NMC Personal Guarantees. But I find it less compelling that Dr Shetty should mention the Modular Personal Guarantee. The meeting was called, according to Mr Sharma, in light of concern about NMC in light of the Muddy Waters Report. There was no similar concern about Modular, or at least no concern about Modular mentioned in the evidence. I am not satisfied that the Modular Personal Guarantee was mentioned at that meeting.

108. All in all, I am not satisfied that the Bank has established on balance of probabilities that Dr Shetty signed the Modular Personal Guarantee or authorised the application to that document of his signature electronically. That is not to say that I necessarily accept Dr Shetty’s denial on this point. I simply find that the Bank has not established this part of its case to the required standard.

Quantum

109. The Bank’s claim under the three NMC Personal Guarantees reflects the sums claimed to be due under the three NMC Facility Agreements, namely (i) the principal sum outstanding under those NMC Facility Agreements of USD 104,545,102, plus (ii) contractual interest thereunder.

110. Until the start of this trial, Dr Shetty had not made it clear that quantum was seriously in dispute. None the less, he is entitled to rely on the terms of RDC Rule 17.29, which provides that “Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he explicitly admits the allegation.” To deal with this contention, the Bank has produced a Claims Admission Notice from the administrators appointed in the insolvency proceedings involving NMC. That Notice states that the Unsecured Claim of the Bank, a Claimant in the insolvency proceedings, is USD 106,294,108, and that that is the admitted amount in the proceedings. Absent any other evidence, I do not see why I should not accept this as sufficient quantification of the Bank’s claim under the NMC Facility Agreements.

Disposal

111. Accordingly, I find that that is the sum owing under the three NMC Facility Agreements. I shall give judgment for that amount.

112. I was presented with no arguments about the appropriate figure for interest. I shall put the case out by order for 28 days to allow parties to address me on this matter.

113. I have heard no submissions on costs. Within that same period of 28 days the parties are at liberty to lodge brief submissions on the question of costs.