September 25, 2025 court of first instance - Orders
Claim No: CFI 038/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
ALAWWAL CAPITAL JSC
Claimant
and
RASMALA INVESTMENT BANK LIMITED
Defendant
ORDER WITH REASONS OF H.E. JUSTICE ROGER STEWART KC
UPON the Judgment of H.E. Justice Roger Stewart KC dated 12 June 2025 (the “Judgment”)
AND UPON the Defendant’s Appeal Notice dated 3 July 2025, seeking permission to appeal the Judgment (the “Permission Application” or “Application”)
AND UPON the Order of H.E Justice Roger Stewart K.C. dated 14 July 2025 (the “14 July Order”)
AND UPON the Order with reasons of H.E. Justice Roger Stewart K.C. dated 13 August 2025, dismissing the Permission Application
AND UPON the Appeal Notice dated 1 September 2025, seeking renewed permission to appeal the Judgment (the “RPTA Application”)
AND UPON the Defendant’s Application No. CFI-038-2023/3 dated 3 September 2025, seeking a stay of execution of the 14 July Order
IT IS HEREBY ORDERED THAT on condition that the sum of USD 1,017,485.98 is paid into Court by the Defendant by 7 October 2025, paragraph 2 of the 14 July Order is stayed until the date upon which the Court of Appeal determines the RPTA Application and, if permission is granted, until the determination of any appeal.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 25 September 2025
At: 8am
SCHEDULE OF REASONS
1. This is an application dated 3 September 2025 seeking a stay of the 14 July Order which set out the financial consequences of the Judgment.
2. The Application is supported by the second affidavit of Paham Behesti dated 2 September 2025. An earlier application for a stay was issued on 29 July 2025 but was not placed before the Court for consideration and has been superseded by the present Application.
3. On 13 August 2025, I refused permission to appeal but the Defendant is renewing its application to the Court of Appeal as it is, of course, fully entitled to do.
4. The Application is made pursuant to RDC 48.53 on the grounds that there are “special circumstances which render it inexpedient to enforce the judgment or order”.
5. The special circumstances identified are:
(a) That the Claimant is incorporated in the Kingdom of Saudi Arabia (“the KSA”) with the consequence that if sums were paid to the Claimant which were required to be repaid following a successful appeal it would be necessary to enforce the Court of Appeal’s order in the KSA.
(b) That, as explained in a written opinion dated 28 July 2025 from Al Sharif Law, a KSA law firm, exhibited to the Defendant’s affidavit:
(i) Any interest element in the putative order of the Court of Appeal would almost certainly be disallowed; and
(ii) Enforcement of any order could take some time.
6. The Claimant has not served any evidence in opposition to the Defendant’s Application.
7. The starting point in considering any application for a stay pending appeal is that judgments are not generally stayed pending appeal. Indeed, it is for that reason that RDC 48.53 sets out conditions for the granting of such a stay. It will, however, be relevant to consider the relative risk of injustice on the grant or refusal of a stay including the risk of the appellant being unable to recover monies if a stay is refused and the appeal succeeds as compared with the risk of the respondent being unable to enforce the judgment if a stay is granted and the appeal fails – see Rohan v Daman Real Estate [2012] CFI 025 at [12].
8. The evidence of Al Sharif Law supports the proposition that an order for payment (or repayment) of interest would be unlikely to be enforced by the KSA courts. Paragraph 2 of the 14 July Order (which has been quantified in the amount of USD 1,017,485.98) is a plain order for interest. I consider that in respect of this paragraph, there are special circumstances which justify a stay. Although the Claimant is being kept out of monies to which the Judgment entitles it, I consider that the prejudice to the Defendant of having to make a substantial payment which might not be returned outweighs the prejudice to the Claimant of not receiving the money now. Further any risk to the Claimant is avoided by requiring, as a condition of the stay, the payment into court of the sum.
9. I do not consider that difficulties in relation to interest justify staying the remainder of the 14 July Order. This is because:
(a) Paragraphs 1 and 4 of the Order are not related to interest;
(b) Paragraph 3 is only relevant if the Defendant does not pay the judgment sums promptly;
(c) Although I accept that an order by the Court of Appeal for the payment of interest on the principal sums paid over might well not be enforced by the Courts of the KSA, I do not consider that this justifies a stay of the whole order:
(i) First, at the rate agreed between the parties of 3.85%, the amount on the principal sum would only amount to USD 161,681.48 per annum. This relatively small sum does not justify keeping the Claimant out of its money;
(ii) Secondly this case arises out of the marketing of a Shariah compliant investment fund to the Claimant by the Defendant. The marketing was done to entities particularly in the KSA. In such circumstances, one of the risks of doing business with KSA companies would have been knowledge as to difficulties with regard to interest;
(iii) Third, at present, there is no permission to appeal. If permission to appeal is granted, a Judge of the Court of Appeal can reconsider the matter if he or she considers it appropriate.
10. I consider that the evidence does not justify the more general assertions made as to difficulties of enforcement in the KSA. The Al Sharif Opinion deals with timings at paragraph 4.5 states that “In a straightforward, single creditor matter with readily attachable cash, enforcement can conclude in as little as four months, but contested cases, asset-poor debtors, execution objections, foreign judgments, and complicated legal issues (eg those noted in sections 4.3.7, 4.4 and 4.6) often extend the process to nine or even twelve months”.
11. As to this evidence:
(a) There is no reason to suppose that an order of the Court of Appeal requiring repayment of sums paid would be other than straight-forward and intelligible – the Defendant would have a strong interest in making sure this was so;
(b) The order would not relate to or require severance in relation to interest;
(c) There is no reason to think that the Claimant is anything other than a company with readily available assets; and
(d) In my view there are strong reasons to avoid a general view that enforcement is difficult in neighbouring states, particularly where the UAE has the benefit of enforcement treaties as is the case here. No doubt in any state there may be delays in enforcement but the evidence is clear that enforcement will be permitted and the identified delays appear rather speculative.
