Tim Prudhoe instructed by Onoma FZE for the Defendant
UPONthe immediate judgment application filed by the Claimant on 26 October 2020 (the“Application”)
AND UPONthe Defendant’s evidence in response filed on 7 December 2020
AND UPONhearing counsel for the Claimant and counsel for the Defendant at a hearing on 24 January 2021
AND UPONreviewing all relevant documents recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Application is granted.
2. Judgment is entered for an amount to be determined by the Court, following provision of a statement of account by the Claimant in accordance with the reasons of the Court.
3. The Defendant has liberty to provide submissions in relation to the statement of account within 2 business days following the provision of the statement by the Claimant.
4. The Defendant is to pay the Claimant’s costs of the proceedings to be assessed by a Registrar of the Court on an indemnity basis unless agreed within 28 days of the orders.
5. The Defendant is to pay USD$400,000 on account of those costs within 14 days.
6. The freezing order remains in force, but without the terms exempting legal and living expenses from its operation.
7. The Defendant has liberty to apply for an order varying the terms of the freezing order.
SCHEDULE OF REASONS
1. The claimant, Barclays Bank PLC (“Barclays”) has applied for immediate judgment on its claim against Bavaguthu Raghuram Shetty (“Dr Shetty”). For the reasons which follow, I am satisfied that Dr Shetty has no real prospect of successfully defending the claim and there is no other compelling reason why the case should be disposed of at trial and therefore immediate judgment should be entered.
The Claim
2. Barclays commenced proceedings on 28 July 2020, claiming monies due under an Unlimited Guarantee and Indemnity (the“Guarantee”) dated 7 January 2015, in which Dr Shetty agreed to guarantee and indemnify Barclays in relation to any debts owed to Barclays by UAE Exchange Centre LLC (“UAEEC”) or any losses incurred by reason of the failure of UAEEC to fulfil its obligations to Barclays.
3. Particulars of Claim were filed at the time the proceedings were commenced. In those Particulars, Barclays asserted that on 3 August 2012 it and UAEEC entered into an agreement (the“ISDA Agreement”) incorporating the International Swaps and Derivatives Association (“ISDA”) 2002 Master Agreement in respect of foreign exchange transactions that would be undertaken between Barclays and UAEEC. Barclays also gave particulars of the Guarantee executed by Dr Shetty on 7 January 2015, replacing an earlier guarantee given by Dr Shetty in 2012. I will consider the terms of each of the ISDA Agreement and the Guarantee in more detail in due course.
4. In the Particulars, Barclays asserted that between 10 and 13 March 2020, pursuant to the ISDA Agreement, Barclays paid out amounts with an equivalent value of approximately USD$129,019,386.28 in respect of foreign exchange transactions, but UAEEC failed to pay the monies due to Barclays in respect of those transactions. Barclays asserted that it first became aware of UAEEC’s failure to pay on 17 March 2020, although curiously Barclays also asserted that it ceased making payments pursuant to the ISDA Agreement on or around 16 March 2020 by reason of UAEEC’s default. Dr Shetty’s representatives have referred to this apparent anomaly, which I will consider in greater detail below.
5. Barclays gave particulars of the service of a Notice of Failure to Pay upon UAEEC on 24 March 2020 and of its service of a Notice of Early Termination of the ISDA Agreement on UAEEC on 26 March 2020, terminating the ISDA Agreement with effect from that day. In its Particulars, Barclays also asserted that on 1 April 2020 it sent a Statement to UAEEC in which it calculated the early termination amount payable under the ISDA Agreement in the amount of USD$129,543,839.27 (exclusive of interest). Barclays asserted that as UAEEC had failed to pay any of that amount, Dr Shetty was liable to pay that amount to Barclays pursuant to the terms of the Guarantee.
6. Barclays also gave particulars of service of a Notice of Demand upon Dr Shetty on 28 April 2020, claiming an amount of USD$129,807,261.93 (inclusive of interest accrued up to that date). Barclays asserted that Dr Shetty had failed to pay any amount in response to that demand. Barclays claimed USD$130,244,117, being the amount allegedly due at the date of commencement of the proceedings (inclusive of interest up to that date – namely 28 July 2020), plus ongoing interest plus costs pursuant to the Guarantee.
7. On 24 August 2020, Barclays filed an Amended Claim Form, including an additional address in India for Dr Shetty.
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