June 19, 2026 court of first instance - Judgments
Claim No: CFI 099/2025
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
BETWEEN
(1) PASCAL FRANCOIS GUTTIERS
(2) DEBORAH NINETTE SHEROON SCEMAMA
Claimants
and
MAYANK SINGHVI
Defendant
| Hearing : | 17 June 2026 |
|---|---|
| Counsel : |
Mr Tim Al-Ghraoui instructed by Nisma Aljanaahi Advocates and Legal Consultants for the Claimants Dr Zhen Ye instructed by Hamdan Al Shamsi Lawyers and Legal Consultants for the Defendant |
| Judgment : | 19 June 2026 |
JUDGMENT OF H.E. JUSTICE ROGER STEWART
UPON the Claimants’ Part 8 Claim Form and Particulars of Claim dated 31 October 2025
AND UPON the Order of H.E. Justice Roger Stewart dated 9 April 2026
AND UPON considering the first witness statement of Joe Mills dated 8 August 2025 and the first witness statement of Lian Maders dated 8 August 2025 and the second witness statement of Lian Maders dated 6 May 2026
AND UPON considering the first witness statement of the Defendant dated 9 April 2026 and his second witness dated 22 April 2026
AND UPON considering the skeleton arguments of the parties dated 11 June 2026
AND UPON hearing Counsel for the Claimants and Counsel for the Defendant at a hearing held before H.E. Justice Roger Stewart on 17 June 2026 (the “Hearing”)
AND PURSUANT TO the Rules of the DIFC Courts (the “RDC”)
IT IS HEREBY ORDERED AND DECLARED:
1. That the Defendant withdrew from the transaction, for the purpose of clause 12 of the Agreement of Sale, not later than 7 August 2025.
2. That the Broker, White & White Real Estate PLC is at liberty to release the deposit cheque to the Claimants for encashment and distribution in accordance with clause 12 of the Agreement.
3. That there be liberty to apply in the event either that the deposit cheque is not, for any reason, released or the cheque is not honoured.
4. That the parties seek to agree the issue of costs with, in default of agreement:
(a) Any party who seeks costs to identify the amount of the same and provide a schedule identifying the sums sought within 14 days of the date of this Order;
(b) The other party responding to the same within 7 days of such submission
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 19 June 2026
At: 8am
SCHEDULE OF REASONS
Introduction
1. This is a judgment issued following a hearing in Part 8 proceedings.
2. The Claim concerns the non completion of an agreement for sale by the Claimants to the Defendant of Unit 7502 at Index Tower in the DIFC pursuant to an Agreement of Sale dated 2 May 2025.
3. The Claimants allege that the Defendant has withdrawn from the purchase pursuant to clause 12 of the Agreement for Sale with the result that they are entitled to relief, including, in particular, the forfeiture of the contractual deposit.
4. Although their legal consequence is disputed, the central facts going to liability are not materially in dispute.
The Provisions of the Agreement of Sale
5. The material provisions of the Agreement of Sale were:
(a) The selling price was AED 27,250,000;
(b) The date of transfer was identified as on or before 1 July 2025;
(c) There were general conditions of sale including:
(i) Condition 1 whereby the sale was to take place “as seen” with the Buyer confirming that they had entered into the Agreement relying entirely upon his own inspections and assessments of the Property;
(ii) Condition 2 under which the Buyer agreed to provide upon signature of the Agreement a deposit with the amount and method detailed in the special conditions payable in the name of the seller and to be held by the Broker. Further, upon receipt of the deposit, the Agreement of Sale was to be valid and legally binding with the Seller agreeing not to:
a. Increase the price of the property;
b. Market the property for sale; or
c. Enter into any agreement to sell or transfer ownership of the Property or the Seller’s interest in the Property to any third party;
(iii) Condition 6 which provided “Should on the date of transfer, both Buyer and Seller be ready, willing and able to transfer however transfer cannot take place due to a delay by a third party… this Agreement of Sale will be automatically extended for twenty one (21) days”;
(iv) Clause 10 which contained a DIFC choice of law and exclusive jurisdiction clause and also provided “..if either Party disputed in writing, the release of the deposit or a non-fulfilment of a Party of its obligations under the Agreement of Sale the Parties shall endeavour to amicably resolve the dispute within 5 Business days from the occurrence of the dispute”
(v) Clause 12 which provided
“If the Buyer withdraws from the agreed sale after signing the Property Sale Agreement of Sale and this Addendum, for any reason, the Buyer acknowledges the total deposit amount as per detailed in the special conditions of this Agreement of Sale will be forfeited for not fulfilling the Agreement of Sale obligations of this Agreement of Sale; Eighty percent (80%) of which will be paid to the Seller as compensation and Twenty percent (20%) to the Broker as professional and administrative fees. The Buyer authorises the Broker to release the funds to the Seller on their behalf”
(vi) Clause 13 which dealt with the Seller withdrawing from the sale;
(vii) Clause 14 which dealt with a mutual withdrawal;
(viii) Clause 17 which provided:
“Buyer and Seller agree that in the event that the transfer of ownership cannot complete by the transfer date specified in the Agreement of Sale, through no fault of the Buyer, the Buyer and Seller shall execute a new contract covering the same property, with the same terms and conditions, with a settlement date of 30 calendar days from signing. The Buyer’s deposit will carry to the new contract:”
(d) There were also Special Conditions of Sale including:
(i) Condition 2 which provided that the Seller had confirmed that there was finance registered against the property of less than the agreed sale price and that the pre-registration process would be carried out prior to the Buyer clearing the Seller’s outstanding finance;
(ii) Condition 3 which stated that the Buer was purchasing with cash funds; and
(iii) Condition 7 which provided that the Buyer had lodged a deposit cheque for AED 2,725,000 totalling 10% of the agreed sales price with the Broker, in the name of the Seller and that the deposit would be returned to the Buyer upon successful transfer and in exchange for manager cheques for both the agreed sale amount and the broker’s professional fees
The Material History
6. The Defendant was first introduced to the transaction through an agent affiliated with Sotheby’s International Realty in about April 2025.
7. The Broker was White & White Real Estate LLC with Mr Joe Mills acting on behalf of the Broker throughout the transaction.
8. The Defendant was not resident in the UAE at the time the Agreement of Sale was entered into and did not have a UAE bank account. As a consequence, the cheque for the deposit was not in his name but issued by Rivi Golden Trading LLC on 2 May 2025.
9. As referred to in the Agreement of Sale, the property was subject to a mortgage. This was with HSBC.
10. The material history is as follows:
(a) A caveat was lodged with the Registry so as to protect the Defendant’s rights on 13 June 2025;
(b) No steps were taken by the Buyer to enable the mortgage to be cleared and the Buyer did not provide the funds for completion on or before 1 July 2025;
(c) The Claimants issued a notice under clause 10 of the Agreement of Sale on 2 July 2025;
(d) The Claimants required the Defendant to complete the purchase by a revised date of 8 July 2025;
(e) A proposal was made on about 24 July 2025 for an increased deposit of 20% of the purchase price with completion by 7 August 2025;
(f) The Registry cancelled the caveat on 7 August 2025; and
(g) These proceedings were issued on 31 October 2025.
11. Throughout the period from the conclusion of the Agreement of Sale until the issue of proceedings, the Defendant maintained that he wished to purchase the property and made a number of proposals to do so. However, none of these proposals were fulfilled. Thus:
(a) On 24 June 2025, the Defendant stated that he was committed to purchase the property and gave an assurance that the purchase would be closed very soon;
(b) On 30 June 2025, the Defendant stated that he was flying to Dubai to complete the purchase;
(c) On18 July 2025, the Defendant stated that he did want to buy the property; and
(d) On 24 July 2025, the Defendant stated that he would make the entire payment by 7 August.
The Submissions
12. The Claimants:
(a) Rely on the following provisions of the DIFC Contract Law:
(i) Article 50 which materially provides
a. The statements and other conduct of a party shall be interpreted according to that party’s intention if the other party knew or could not have been unaware of that intention;
b. Subject to Article 50(3) [which is irrelevant], if Article 50(1) is not applicable, such statements and other conduct shall be interpreted according to the meaning that a reasonable person of the same kind as the other party would give to in the same circumstances;
(ii) Article 51 which provides that in applying Articles 49 and 50, regard shall be had to all the circumstances including
a. Preliminary negotiations between the parties
b. Practices which the partes have established between themselves
c. The conduct of the parties subsequent to the conclusion of the contract;
d. The nature and purpose of the contract
e. The meaning commonly given to terms and expressions in the trade concerned and in the case of a Coded Term, the meaning given by a reasonable person with a competent understanding of the relevant Code; and
f. Usages;
(iii) Article 64(a) which provides that a party must perform its obligations if a time is fixed by or determinable from the contract, at that time;
(iv) Article 81 which materially provides:
a. In the case of non-performance, the aggrieved party may by notice to the other party allow an additional period of time for performance
b. During the additional period, the aggrieved party may withhold performance of its own reciprocal obligations and may claim damages but may not resort to any other remedy
c. Where in a case of delay in performance which is not fundamental the aggrieved party has given notice allowing an additional period of tie of reasonable length, it may terminate the contract at the end of that period. If the additional period is not of reasonable length, it shall be extended to a reasonable length. The aggrieved party may in its notice provide that if the other party fails to perform within the period allowed by the notice the contract shall automatically terminate.
(v) Article 86 which materially provides:
a. A party may terminate the contract where the failure of the other party to perform an obligation amounts to a fundamental non- performance
b. In determining whether a failure to perform an obligation amounts to a fundamental non-performance, regard shall be had, in particular, to whether:
c. The non-performance substantially deprives the aggrieved party of what it was entitled to expect under the contract;
d. Strict compliance with the obligation which has not been performed is of the essence under the contract;
e. The non-performance is intentional or reckless;
f. The non-performance gives the aggrieved party reason to believe that it cannot rely on the other party’s future performance;
(vi) In the case of delay, the aggrieved party may also terminate the contract if the other party fails to perform before the time allowed under Article 81 has expired”.
(b) That the situation is akin to one where the Defendant has renounced the contract entitling the Claimants to bring it to an end;
(c) That no express withdrawal is required for the operation of clause 12;
(d) The Claimant is entitled:
(i) to an order requiring the Broker to release the deposit cheque for liquidation and distribution; and
(ii) To a declaration as to the withdrawal of the Defendant from the Agreement of Sale; and
(e) The Claimant also seeks losses amounting to AED 191,660.46 by way of consequential losses consisting of mortgage interest, service charges, insurance and the cost of utilities together with interest and costs.
13. The Defendant submits:
(a) That the Claimant’s case has changed in that originally what was sought was a declaration as to a “deemed” withdrawal whereas now what is sought is a declaration as to actual withdrawal;
(b) That the Claimant is also seeking a declaration that the Agreement of Sale expired on 2 July 2025, when it is clear that the parties treated the agreement as continuing after that date;
(c) That there was no acceptance of any repudiation by the Claimants;
(d) That “withdraws” for the purpose of the contract requires a change of a previous position;
(e) That the Defendant did not withdraw from the Agreement of Sale and remains willing to complete the transaction as he has stated on multiple occasions;
(f) That the contract did not provide for a deemed withdrawal;
(g) That the Claimants are not entitled to liquidate or forfeit the deposit cheque when neither the payor nor the payee are parties to the proceedings;
(h) That the Claimants have not proved their entitlement to damages of AED 191,660.47 or any sum and are not entitled to such damages in addition to the deposit.
Discussion
14. This case centres on the unusual contractual provision which is clause 12 of the standard conditions of the Agreement of Sale.
15. Agreements for the sale of land very commonly require the payment of a deposit. Usually, however, that deposit will be forfeit when the Buyer fails to complete the transaction either on the originally stipulated date or an alternative, later, date when time is made the essence of the contract.
16. Here, I do not consider that there is any doubt:
(a) That the Defendant breached the Agreement of Sale by failing to complete by the originally stipulated date of 1 July 2025;
(b) That the Claimants would have been entitled, pursuant to Article 81 of the DIFC law of contracts, to serve notice allowing an additional reasonable period for completion, failing which the contract could be brought to an end;
(c) That a reasonable period would, in the circumstances of this case, have been relatively modest (perhaps a maximum of 14 days); and
(d) That the Claimants would then have been free to re-sell the Property and claim damages from the Defendant.
17. Here, however, the right to forfeit the Deposit depends on it being shown that the Buyer “withdraws” from the sale.
18. In considering what this word means, in the context of the Agreement of Sale, the following considerations are relevant:
(a) The word is to be construed, in context, as part of the Agreement as a whole;
(b) Clause 13 has a provision dealing with where the Seller “withdraws” from the Sale in which event the deposit is refunded and becomes liable to the Buyer and the Broker to pay the amount of the deposit;
(c) Clause 14 contains a provision dealing with mutual withdrawal;
(d) The main obligation of the Defendant is to provide the price whilst the main obligation of the Seller is to provide good title to the Property;
(e) The Agreement provided that the Defendant was a cash purchaser which suggested that he maintained that he had the funds available for purchase;
(f) The word “withdraws” has a number of possible meanings in different contexts including connotation of “backing out of” or taking back something which has been given or assented to – thus “I withdraw my agreement” would mean that I no longer consent to that which I did originally consent to;
(g) The word does not necessarily connote that what a person says they are doing is what they are actually doing – “He said he was advancing but in fact he was withdrawing”;
(h) The agreement as a whole provided for a sale at an agreed price at an agreed time. As is well known property markets can fluctuate, sometimes quite quickly. In that context, the withdrawal from a sale is to be assessed by reference to the agreed time frame, not to a general desire to purchase the property; and
(i) The parties chose to use the word rather than, for example, simply providing for the deposit to be forfeit if the sale did not complete by a designated date.
19. Taking the above considerations together, I consider that the word “withdraws” in clause 12 required that the Defendant demonstrate by his words or conduct that he was either unable or unwilling to complete the purchase by the agreed date or within a reasonable time thereafter. I find this because:
(a) The agreement plainly allowed a withdrawal to take place even before the designated time for completion;
(b) As the Defendant’s main obligation was to provide the funds for purchase, it would, however, not matter if the Defendant protested that he wanted to complete if he did not actually do so;
(c) The construction would give effect to what seems likely to have been the common expectation of the parties, namely that if the sale was not completed on 1 July or within a short time thereafter, the deposit would be forfeit.
20. I accept that the construction is likely to have the same practical effect as one which provided for forfeiture following the ending of the agreement but it does not seem to me that the fact that the parties could have used different words leads to an alternative result.
21. The Defendant’s suggested meaning of the word “withdraws” does not serve any recognisable commercial purpose. The fact that the Defendant may have wanted to complete the purchase and protested his desire to do so is of no commercial relevance if he lacked the means to complete – particularly in circumstances where he had stated he was a cash purchaser.
22. I reject the Defendant’s case, so far as it is sought to be made, that the transfer of ownership could not complete through no fault of the Buyer with the consequence that Clause 17 was made out.
23. I also consider it is quite clear that, by 7 August 2025, at the latest, when the Defendant did not complete in accordance with the revised timetable he had himself proposed that, viewed objectively, he had withdrawn from the transaction. By that time, more than 5 weeks had elapsed since the original completion date, and he had not produced funds.
24. The remaining questions concerns the relevant relief:
(a) It is quite correct that the Claimants claimed declaration has changed. Originally what was sought was a declaration that “the Defendant is deemed to have withdrawn from the transaction and that the Agreement is deemed to have expired on 2 July 2025”;
(b) If something is “deemed” to have occurred, the usual meaning is that it did not actually occur whereas the Claimants require an actual contractual withdrawal;
(c) Dr Zhen Ye fairly accepted that she could deal with the Claimants’ case as put in their skeleton argument;
(d) I consider that the Claimants are entitled to declarations:
(i) That the Defendant withdrew from the Agreement for Sale not later than 7 August 2025; and
(ii) That the Broker is entitled to cash the cheque which they are holding and deal with the proceeds in accordance with the Agreement for Sale namely as to 80% to be paid to the Claimants and the remaining 20% retained;
(e) The fact that neither the Broker nor the payor of the cheque are parties to the action does not prevent the above declarations from being made - the Broker will be protected from any claim from the Defendant if the cheque is released;
(f) I do not consider that it is appropriate to order the release of the cheque in the absence of the Broker being a party to the action but I will give liberty to apply in the unlikely event that the cheque is not released;
(g) I will also allow liberty to apply in the event that the cheque is dishonoured.
25. I do not consider that the Claimants are entitled to damages in addition to forfeiture of the deposit given:
(a) the damages sought are substantially less than the deposit (or even the 80% of he deposit that the Claimants will receive);
(b) That the normal purpose of the deposit is to provide protection against the likely harm to be suffered in the event that a purchase does not complete;
(c) It is well established that a Claimant is not entitled to damages as well as retention of a deposit if the amount of damages is less than the amount of the deposit; and
(d) There are no words in the Agreement of Sale providing for any different approach.
26. Neither party served schedules of costs but given that the hearing lasted less than half a day, I consider that this is a case where summary assessment of costs should take place. I will accordingly make orders seeking the parties to agree costs or, in the alternative for their summary assessment.
