Claim No. CFI 043/2020

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

Bank of Baroda (DIFC Branch)

Claimant

and

(1) NEOPHARMA LLC
(2) NMC HEALTHCARE LLC
(3) NEW MEDICAL CENTRE LLC
(4) BAVAGUTHU RAGHURAM SHETTY

Defendants

ORDER OF H.E. CHIEF JUSTICE WAYNE MARTIN

UPON the Order with Reasons of H.E. Chief Justice Wayna Martin dated 11 March 2024 (the “11 March Order”)

AND UPON the Order of H.E. Chief Justice Wayne Martin dated 25 November 2024 and the reasons issued on 13 January 2025 (the “Judgment”)

AND UPON the Fourth Defendant’s Appeal Notice dated 3 February 2025 seeking permission to appeal the Judgment (the “Permission to Appeal Application”)

AND UPON the Fourth Defendant’s Grounds of Appeal dated 12 March 2025 and 14 March 2025

IT IS HEREBY ORDERED THAT:

1. The Permission to Appeal Application is dismissed.

2. There shall be no order as to costs.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 6 May 2025
At: 8am

1. The Fourth Defendant, Mr Bavaguthu Raghuram Shetty (Mr Shetty) applies for permission to appeal (the “Permission to Appeal Application”) from the judgment which was entered against him in the amount of USD 33,248,029.70 in favour of the Claimant (the Bank) on 25 November 2024 (the “Judgment”). For the reasons which follow, that Permission to Appeal Application must be dismissed.

The nature of the claim against Mr Shetty

2. The nature of the Bank’s claim against Mr Shetty was described in the reasons for Judgment which I gave ex tempore at the conclusion of the trial on 25 November 2024. It was also described in the written reasons which were published on 13 January 2025.

3. In short, the Bank claims against Mr Shetty as the guarantor of a debt created by the advance of funds to the First Defendant, Neopharma LLC, which is part of the NMC Healthcare Group. In April 2020, the parent company of that Group, NMC Health PLC went into administration following allegations of widespread fraud within the Group.

Procedural history

4. After the First Defendant failed to repay the funds advanced by the Bank, the Bank commenced proceedings against the First Defendant and three guarantors of the debt, including Mr Shetty. The lengthy history of the proceedings is set out in my reasons for granting immediate judgment against the First Defendant and striking out all but one ground of defence relied upon by Mr Shetty on 11 March 2024. It is unnecessary to recite that history in these reasons, although it is significant to note that no appeal was brought against my decision to strike out all but one ground of Mr Shetty’s defence, given that Mr Shetty now seeks to invoke some of the grounds which were struck out and therefore not tried in support of his Permission to Appeal Application.

5. The Appeal Notice was not filed until 3 February 2025, which is well outside the period of 21 days within which notice of an application for permission to appeal had to be given pursuant to Rule 44.10 of the Rules of the DIFC Courts (the “RDC”). It seems that Mr Shetty’s legal advisor erroneously assumed that time only commenced running when written reasons were published on 13 January 2025, even though oral reasons for decision were given at the time judgment was pronounced immediately following the trial, and no application was made to defer the commencement of the time for appeal until those oral reasons were reduced to writing.

6. However, perhaps unwisely, I concluded that the error of Mr Shetty’s legal advisor should not be visited upon his client and extended the time for filing the Appellant’s Notice until 3 February 2025.

7. The Appellant’s Notice did not comply with RDC 44.29 in that it did not “set out the grounds of appeal relied on”. Rather, the Notice took the form of which Justice Giles complained as long ago as 2012, in which the grounds of appeal and skeleton argument were an amalgam that did not well identify the grounds of appeal, leaving the Court to distil the grounds from the narrative in the skeleton argument.¹ In that case, Justice Giles emphasised that the grounds of appeal should be as concise as possible, although they may be supported by the skeleton argument.

8. Consistently with that decision, I directed that because ‘the documents filed in support of the application did not clearly identify the Grounds of Appeal … “the grounds should be provided in a separate document, which does not include any argument in support of the grounds”.

9. Mr Shetty’s lawyers did not comply with that direction. On 14 March 2025, a document was filed which specified four grounds of appeal, but which included argument in support of those grounds, contrary to the express direction I had made. Further, as will be seen, some of the Grounds are expressed in tendentious or obscure terms.

Permission to appeal principles

10. RDC 44.117 provides:

11. RDC 44.5 requires that an appellant obtain permission to appeal to the Court of Appeal except where the appeal is against a committal order.

12. RDC 44.19 provides:

13. In this case, the Applicant does not contend that there is some other compelling reason why the appeal should be heard. Rather, it is contended that the appeal would have a real prospect of success because the decision of the Judge at first instance was wrong.

14. It is established that “real” in the context of an assessment of the prospects of success means realistic rather than fanciful, applying the same test as is applied in an application for immediate judgment.²

15. It is also established that a real prospect of success does not mean a probability of success, but more than mere arguability.³

16. Accordingly, in order to obtain the grant of permission, a prospective appellant needs to establish more than the proposition that the proposed appeal is reasonably arguable – rather, it must be established that there is a real prospect of success.⁴

17. Particular principles apply to applications for permission to appeal against case management decisions and multi factorial assessments undertaken by a Judge at first instance.

The Grounds of Appeal

Ground 1

18. Ground 1 asserts that the Court “erred in discarding the circumstantial and factual evidence available to refute the authenticity of the Disputed Personal Guarantee”.

19. In support of this ground, it is asserted that the Court erred by limiting:

“…the scope of the trial to the very narrow issue of the authenticity/forgery of Dr Shetty’s signature as appearing in the personal guarantee dated 14/9/2017 (“Disputed Personal Guarantee”) without addressing the authenticity, reliability or validity of the Disputed Personal Guarantee itself.”

20. This proposition is very difficult to comprehend. The entire focus of the trial was upon the authenticity and validity of the Guarantee given by Mr Shetty. In this context, it is not at all clear whether the reference to the “reliability” of the Guarantee is said to connote something different, and if so, what. In any event, the focus of the trial upon the authenticity of Mr Shetty’s signature on the Guarantee was the direct consequence of the orders made on 11 March 2024 striking out all grounds of defence other than Mr Shetty’s plea that he did not sign the Guarantee. As already noted, no appeal was brought from that decision, nor was any attempt made to amend the pleadings to introduce any other grounds of defence.

21. Next in support of this ground it is asserted that the Court erred by deciding to “dismiss or not appreciate” various matters.

22. The first such matter is the Bank’s failure to provide a witness who could testify as to Mr Shetty personally signing the Guarantee. This matter was specifically addressed in [102] of my written reasons for decision, where it was noted that the failure to adduce testimony from a witness to the execution of the Guarantee would have assumed more significance if Mr Shetty had given evidence that he did not sign the Guarantee. However, Mr Shetty gave no evidence. In those circumstances, the question which I was required to determine was whether the Bank had established that Mr Shetty had signed the Guarantee on the basis of the evidence before the Court. That evidence included expert handwriting evidence which I accepted, and which was sufficient to discharge the Bank’s burden of proof.

23. The next matter referred to is the testimony of Mr Chauhan. I specifically referred to that evidence in my written reasons, noting that it was limited to the usual processes and procedures undertaken by the Bank as Mr Chauhan had no involvement in the execution of the security documents, including the Guarantee. It seems that this is essentially a repetition of the first matter relied upon– namely, the Bank’s failure to produce testimony from a witness to the execution of the Guarantee.

24. The next matter relied upon is the assertion that it was unlikely that Mr Shetty would have personally guaranteed the debt having regard to various circumstances, including the fact that he had stepped down from the position of non-executive Vice Chairman, was over 75 years old, and was stepping back from his involvement in the company. The obvious difficulty with this assertion is that there was absolutely no evidence of any of the matters upon which it is based, as Mr Shetty did not give evidence.

25. The same observation can be made with respect to another matter relied upon – the possibility of a fraud being committed on Dr Shetty. There is simply no evidence of such a possibility.

26. Another matter relied upon in this context is the potential that documents were tampered with or altered. However, this potential was specifically addressed in my written reasons, especially in the context of my detailed analysis of the expert handwriting evidence. That evidence fell manifestly short of establishing, as a fact, that the Guarantee was tampered with or altered.

27. Next it is asserted that the Court erred by failing to take account of the asserted failure of the Bank to ensure compliance to the proper protocols under the DFSA Rules. This is one of the matters to which I specifically referred in [26] of my written reasons, being matters which:

28. Ground 1 has absolutely no prospect of success.

Ground 2

29. Ground 2 asserts that the Court erred by refusing to consider contentions raised relying on points of law.

30. This is another reference to the matters to which I referred in [26] of my written reasons. It is asserted that the Court erred by excluding from consideration:

“Points of law which were highly relevant to the instant matter, solely on the ground that they had not been specifically pleaded in the Statement of Defence when there is no mandatory requirement to plead provisions of DIFC laws relied on by a party.”

31. The assertion that the matters raised for the first time in the skeleton argument served on behalf of Mr Shetty shortly before the trial were pure points of law is wrong. The first matter raised involved wide-ranging assertions of breaches by the Bank of duties said to be imposed by DFSA Rules relating to transparency, fair treatment and informed decision-making. While the DFSA Rules are obviously matters of law, the allegations of breach are equally obviously matters of fact, of which the Bank had no prior notice whatever.

32. The same observation applies to the second matter raised, which concerns the application of the Electronic Transactions Law.

33. Further and in any event, the matters raised are irrelevant to the issue which was being tried, which was whether the Bank had established that Mr Shetty had signed the Guarantee. If the Bank established that fact, there was no question of breach of the DFSA Rules. The Electronic Transactions Law had no potential application to the case whatever, as the Bank did not assert that Mr Shetty had signed the document electronically or had authorised somebody to sign the document on his behalf. The Bank’s case was limited to the proposition that Mr Shetty signed the Guarantee personally and in ink.

34. Ground 2 has absolutely no prospect of success.

Ground 3

35. Ground 3 asserts that the Court made “wrong and baseless conclusions as to the independence of the expert appointed by” Mr Shetty.

36. In support of this ground, it is asserted that:

“The duty to appoint and instruct an expert lies with the party to the proceeding, not their legal representative … there was no error in Dr Shetty directly instructing Mr Al Bah and the finding … of the Court that this affects the expert’s independence is wrong and unfounded … the legal representative has only distanced from the actual engagement and terms of engagement so as to ensure Mr Al Barh’s independence.”

37. The proposition that a legal representative can appropriately leave the engagement and instruction of an expert witness to the client “so as to ensure” the expert’s independence reinforces the observations made in the written reasons with respect to the failure of Mr Shetty’s lawyer to understand his duties to the Court. The proposition is self-evidently wrong.

38. This ground is also said to be supported by various criticisms of the Court’s analysis of the testimony given by Mr Al Bah. None of those criticisms have any weight or substance. In any event, it is well established that an Appeal Court will be extremely hesitant to interfere with credibility assessments made by a trial judge who has had the advantage of seeing and hearing the witnesses give their testimony.

39. Ground 3 has absolutely no prospect of success.

Ground 4

40. Ground 4 asserts that the Court failed to assess the authenticity of the signature in the Guarantee.

41. It is difficult to reconcile this proposition with the contention in ground 1 to the effect that the Court erred by limiting its consideration to the assessment of the authenticity of the signature on the Guarantee. In any event, it seems that the ground is meant to comprehend the proposition that the Court arrived at the wrong factual conclusion after analysing the expert evidence. However, that proposition appears to come down to:

42. Ground 4 has absolutely no prospect of success.

Conclusion

43. As none of the grounds of appeal has any prospect of success whatever, the Permission to Appeal Application must be dismissed.

44. As the Bank did not respond to the application, there will be no order as to costs.