Full Text
HIGH COURT OF DELHI
Date of Decision: 18.09.2024
OMIRICO LIMITED & ANR. .....Plaintiffs
Through: Mr.Anand Tiwari, Mr.Vijay Nair, Ms.Pallavi Tayal and
Ms.Tanvi, Advs.
Through: None.
JUDGMENT
1. This is an application seeking condonation of delay in re-filing of the Suit.
2. For reasons stated in the application, the delay is condoned.
3. The application is, accordingly, disposed of. I.A. 39655/2024
4. This application has been filed by the plaintiff under Order XXXVIII Rule 5 read with Section 151 of the Code of Civil Procedure, 1908.
5. The application has been rendered infructuous in view of the Order passed today and the same is, accordingly, disposed of.
6. This Suit has been filed by the plaintiffs, praying for the following reliefs: “a. Pass a Decree of Mandatory Injunction, thereby enforcing the Mareva Injunction Order dated 14.08.2023 passed by the District Court of Nicosia, Cyprus in Action No. 2019 of 2023 and prohibiting the Defendant No. 1 personally and/or its employees and/or servants and/or agents and/or front mans and/or directors and/or officials and/or officers and/or representatives to use and/or remit and/or transfer and/or withdraw and/or burden by any means and/or donate and/or assign and/or pledge and/or otherwise dispose and/or alienate any assets and/or amounts up to US$170,000,000.00 (one hundred seventy million USD) and/or equivalent amount in any other currency at the time of the issuance of the present order from its accounts and/or bank accounts the Defendant No.1 maintains in banks and/or banking Institutions and/or financial and/or private banking institutions in India, and/or any other assets up to the amount of US$170,000,000.00 (one hundred seventy million USD) and/or prohibit all transactions of the Defendant No. 1's bank accounts and/or prohibit any payment of third party claims and/or any other transaction and/or transactions in regards to the Defendant No. 1's capital up to the amount of US$170,000,000.00 (one hundred seventy million USD) under its direct and/or indirect control and/or ownership until the final decision of the District Court of Nicosia, Cyprus in Action No. 2019 of 2023 and/or until any further Court Order.”
7. It is the case of the plaintiffs that a Loan Agreement dated 15.12.2010 was entered into between the plaintiff no.2, that is, Torresant Industry Limited, and the plaintiff no.1/Company, that is, Omirico Limited, whereunder the plaintiff no.2 lent an amount of $117,980,000 to the plaintiff no. 1. The loan amount was advanced for a period of 5 years to be repaid on or before 15.12.2015.
8. The plaintiffs state that, thereafter, by way of addendums, the due date for the repayment of the loan had been extended. Finally, vide Letter dated 04.03.2022, a demand notice was issued by the plaintiff no.2 on the plaintiff no.1, seeking repayment of the loan amount. Subsequently, on 12.04.2022, the plaintiff no.2 preferred a winding up petition bearing Petition No.132/2022 in the District Court of Limassol against the plaintiff no.1.
9. An Interim Order dated 14.04.2022 was passed by the District Court of Nicosia, thereby, appointing a provisional liquidator, namely, Mr.Ionnis Poyiadjis.
10. Several correspondences were exchanged by the said liquidator with the Directors of the plaintiff no.1, who gave him various documents and evidence in order to trace and safeguard the assets of the plaintiff no.1.
11. The liquidator also informed the defendant no.1, vide a Letter dated 06.05.2022, of the Prohibition Order dated 14.04.2022 passed by the District Court of Nicosia.
12. It was also realised that the plaintiff no.1 had deposited approximately $153,945,145, distributed in four accounts in the defendant no.1, Moscow, Russia, and had also deposited a sum of $42,236 with a Bank named Societe Generale.
13. The liquidator went ahead and attempted a test transfer of €5000 (RUB 300,000) to a banking institution situated outside Russia. The aim of the liquidator was to transfer the whole amount of $ 153,945,145, being the deposit of the plaintiff no.1. However, by an Order bearing no.03-12-4/9244 dated 29.09.2022 of the Central Bank of the Russian Federation, the said transfer was blocked and thus, rejected by the defendant no.1.
14. A letter was issued by the defendant no.2, who is the 100% shareholder of the plaintiff no.1, to the Prosecutor General of the Russian Federation requesting to confiscate the deposited amount of the plaintiff no.1. Based on the said letter, the Deputy Prosecutor General of the Russian Federation initiated proceedings against the Magomedov Brothers (Summa Group) and the plaintiff no.1, and filed a Statement of Claim with the Russian Court for confiscation of the assets of the plaintiff no.1 situated with Sberbank, that is, the defendant no.1.
15. On the same day, the Statement of Claim was accepted by the Russian Court, and by the Order dated 02.12.2022, the Russian Court being satisfied with the claims by the prosecutor, seized and blocked the account of the plaintiff no.1 held in the defendant no.1/Bank for an amount of $150,289,000. An appeal filed by the plaintiff no.1 in the High Court of Russia against the said order was also dismissed, vide Order dated 20.04.2023.
16. In the meantime, an interim receiver was appointed by the District Court of Nicosia, Cyprus, and by an Order dated 14.08.2023, the said Court allowed an ex parte application filed by the liquidator, granting a worldwide injunction (“Mareva Injunction”) for securing the assets of the plaintiff no.1 against the defendant no.1 and restraining the defendant no.1 from disposing off assets to the extent of $170,000,000. It is for the enforcement of the said order that the present Suit has been filed by the plaintiffs.
17. The final winding up order of the plaintiff no.1 was passed by the said Court on 29.03.2024.
18. The plaintiffs in the present suit seek to invoke the territorial jurisdiction of this Court by asserting as under:
19. The Memo of Parties that has been filed in the present Suit is as under: “MEMO OF PARTIES
1. OMIRICO LIMITED A Company registered under the laws of Cyprus Having its Office at 195, Archbishop Makarios III Avenue, Neocleous House, 3030, Limassol, Cyprus.
THROUGH ITS LIQUIDATOR MR.
2. TORRESANT INDUSTRY LIMITED A company incorporated under the Laws of the British Virgin Islands Registration number 677246 Having its registered office at Drake Chambers, PO Box 3321, Road Town, Tortola, British Virgin Islands …PLAINTIFFS
VERSUS
1. PJSC SBERBANK A public Joint Stock Company Incorporated under the Laws of Russia Having its principal office at 19 Vavilova Street, 117997 Moscow Russia E-mail: nodalofficer@sberbank.ru And Indian offices at: Upper Ground Floor & Fourth (4th) Floor Birla Tower, 25-Barakhamba Road, New Delhi India – 110001. AND 81-B, 8th Floor, 5th North Avenue, Maker Maxity, Bandra Kurla Complex, Bandra East, Mumbai, Maharashtra, 400051
2. P JSC TRANSNEFT A public Joint Stock Company incorporated under the Laws of Russia Having its registered office at 57, Bol'shaya Plyanka Street 119180, Moscow, Russia E-mail: transneft@ak.transneft.ru...... DEFENDANTS”
20. As is noted herein above, the present Suit has been filed by the plaintiffs seeking enforcement of the Mareva Injunction Order dated 14.08.2023 passed by the District Court of Nicosia, Cyprus in Action No. 2019 of 2023, and prohibiting the Defendant No. 1 to use and/or remit and/or transfer and/or withdraw and/or burden by any means and/or donate and/or assign and/or pledge and/or otherwise dispose and/or alienate any assets and/or amounts up to US$170,000,000.00 (one hundred seventy million USD) and/or equivalent amount in any other currency at the time of the issuance of the present order from its accounts and/or bank accounts the Defendant No.1 maintains in banks and/or banking Institutions and/or financial and/or private banking institutions in India, and/or any other assets up to the amount of US$170,000,000.00 (one hundred seventy million USD) and/or to prohibit all transactions of the Defendant No. 1's bank accounts and/or prohibit any payment of third party claims and/or any other transaction and/or transactions in regards to the Defendant No. 1's capital up to the amount of US$170,000,000.00 (one hundred seventy million USD) under its direct and/or indirect control and/or ownership until the final decision of the District Court of Nicosia, Cyprus in Action No. 2019 of 2023 and/or until any further Court Order.
21. In the present case, it is an admitted fact that the alleged money of plaintiff no.1, held in defendant no.1 bank, is deposited at the branch in Russia. The documents also show that none of the transactions have taken place within the jurisdiction of this Court either between the plaintiff no.1 and the plaintiff no.2 or between the plaintiffs and the defendant no.1.
22. Further, the assets that the plaintiffs seek to be injuncted through the present Suit are also situated in Russia, and as is evident from the orders referred hereinabove, have been seized by the Russian Courts. Though the plaintiffs make several averments on why the said orders are procedurally and otherwise wrong, it is not for this Court to look into those issues, also in absence of the party at whose instance those orders were passed.
23. The plaintiffs themselves disclosed that the defendant nos.[1] and 2 are both situated in Russia.
24. The plaintiffs have given no details of any property or assets of the defendants within the jurisdiction of this Court. The Suit is completely vague and silent on this vital aspect. They have probably sought to invoke the territorial jurisdiction of this Court only by giving the office address of some branch of the said defendant no.1 in India. In my opinion, this is not sufficient to invoke the jurisdiction of this Court when admittedly the assets are situated in Russia, money is also admittedly held in Russia and there are orders passed by the Russian Courts in regard thereto.
25. The Suit is totally misconceived and smacks of mala fide.
26. The Suit is, accordingly, dismissed imposing costs of Rs.1,00,000/- on the plaintiffs, to be deposited with the Delhi High Court Bar Clerks’ Association within a period of four weeks from today.
NAVIN CHAWLA, J SEPTEMBER 18, 2024/ns/VS Click here to check corrigendum, if any