Claim No: CFI 043/2020

IN 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 WITH REASONS OF H.E. DEPUTY CHIEF JUSTICE ALI AL MADHANI

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

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

AND UPON the Order of Chief Justice Wayne Martin dated 6 May 2025 dismissing the Fourth Defendant’s Appeal Notice dated 3 February 2025 seeking permission to appeal the Judgment (the “First Refusal Order”)

AND UPON the Fourth Defendant’s Renewed Permission to Appeal dated 27 May 2025 seeking renewed permission to appeal the Judgment (the “Renewed Permission Application” or “Application”)

IT IS HEREBY ORDERED THAT:

1. The Renewed Permission Application is dismissed.

2. There shall be no order as to costs.

Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 22 January 2026
At: 1pm

1. This Application is brought by the Fourth Defendant (“D4”), the founder of the Second Defendant company group, who seeks permission to appeal the order of Chief Justice Wayne Martin dated 25 November 2024 (the “Judgment”).

2. This is the second application D4 has brought seeking to permission to appeal the Judgment; the first was filed on 3 February 2025, which was dismissed with no order as to costs by Chief Justice Wayne Martin on 6 May 2025. In the Renewed Permission Application, D4 brought four grounds of appeal concerning errors in law and fact. The same grounds, with the addition of a supplementary point regarding the application of the Overriding Objective, have been brought in this Application. The grounds of appeal will be assessed independently, with a fresh approach, and no reliance as to the reasons given for the dismissal of the same grounds in the 6 May 2025 order (the “First Refusal Order”).

3. Due to the familiarity of the Court with these proceedings, and that this is a Renewed Permission Application, I will dispense with a reiteration of the background and procedural history unless where relevant to reference.

The Judgment

4. The Judgment was entered against D4 in the amount of USD 33,248,029.70 (the “Judgment Debt”), with interest running until the Judgment Debt is paid in full, and costs, following the Trial before H.E. Chief Justice Wayne Martin on 25 November 2024 for the Claimant and Counsel for D4.

5. The Reasons for the Judgment were issued on 13 January 2025.

6. By the time of the Trial, the Claimant had already obtained judgment against the First Defendant and had stayed proceedings against the Second and Third Defendant due to insolvency. Therefore, only one live issue was considered; the legitimacy of D4’s signature on the Personal Guarantee relied on by the Claimant. D4’s surviving defence was that the signature in question was forged, and so he could not be held liable for the Personal Guarantee.

7. D4 relied heavily on expert handwriting evidence, as he refused to be called for cross- examination of his witness statements and the Claimant’s factual witness, Mr Chauhan, had no direct knowledge of the signing of the guarantee.

8. The expert evidence of Ellen Radley, a highly experienced forensic document examiner, was heard for the Claimant. The Judgment carefully considered her methodology of her examination of the Personal Guarantee and six other contemporaneous documents signed by Mr Shetty of “known” signatures using microscopic analysis and other accepted forensic techniques. Her conclusion was that D4 was a highlight variable signer, explaining the natural differences in the signatures, as his signature style is complex and difficult to imitate fluently. It was determined that all of the signatures in dispute were written in pen and ink, showed strong similarities to known genuine signatures, and flagged no significant differences that would be indicative of fraud or attempted copy. Therefore, Ellen Radley was satisfied that all disputed signatures were signed by the same person. Due to the detail of her report, the Court accepted her evidence without reservation, which is explained in the Judgment at [55]

9. Alternative expert evidence provided by Mr Ahmed Albah on behalf of D4 was rejected entirely by the Court. Mr Albah’s report consisted largely of vague, unsubstantiated conclusions and he failed to explain the tests performed and the methodology used to reach his conclusions. The Court found that his report contained internal inconsistencies by interchangeably using “forgery” and “electronic placement”, which is plainly wrong. His oral evidence was contradictory and unreliable as he gave conflicting accounts against D4 regarding whether he had access to the original documents, and changed his story repeatedly during cross-examination. For the first time at Trial, he claimed he used microscopic examination, but this evidence was absent in his reports, and he could not explain how he reached the conclusion of “electronic copying” and how this was evidence of forgery. The Court concluded that his testimony was evasive, contradictory and unreliable, and suspected that the oral evidence was made up during cross- examination. Further, the expert evidenced raised independency concerns as D4 personally instructed and liaised with Mr Albah, and counsel was largely excluded from engagement. Mr Albah had also acted for D4 in multiple similar bank cases. The Court’s reasoning is explained in the Judgment at [95-97], whereby the well-established principle that expert opinions carry little to no weight if unsubstantiated or subject to untruth was applied.

10. The Court relied on Ellen Radley’s evidence and D4’s conduct; in that he did not deny signing the guarantee on oath and refused to submit to cross-examination, to conclude that the Personal Guarantee does bear his signature. Therefore, the surviving defence failed, D4 was found liable, and judgment was entered against him for the Judgment Debt plus interest at 9% per annum.

The Application

Permission to Appeal Principles

11. The Application is brought pursuant to Rule 44.9 and 44.11 of the DIFC Courts (“RDC”), which respectively read:

12. The threshold to grant a renewed permission to appeal application is found at RDC 44.117:

This rule applies to the order ultimately made, which should be found to be plainly wrong or reached due a serious irregularity, and errors may be found in law or fact. D4 submits four grounds of appeal and a supplementary submission on the application of RDC 1.6; all will be separately considered.

13. Further, RDC 44.19 provides:

In this Application, D4 only advances that the appeal would have a real prospect of success.

First Ground: Non-Consideration of Circumstantial and Factual Evidence to Refute the Authenticity of the Disputed Personal Guarantee.

14. D4 submits that the Judgment and the First Refusal Order failed to consider relevant circumstantial and factual evidence in the determination of the validity of the Personal Guarantee as a whole document, instead favouring the dispute over the signature of D4 and the corresponding expert evidence only.

15. It is D4’s position that his defence has been, since the filing of the Claim, unawareness of the Facility Agreement dated 14 September 2017 under which the Claimant purportedly advanced a loan of USD 34,304,383.34 to the First Defendant or the Personal Guarantee executed by D4 on the same date. As the agreements were intended for different purposes, D4’s liability arises solely out of the Personal Guarantee, which he denies knowledge of, and denies signing or authorising anyone to sign on his behalf.

16. The Court erred in limiting the Trial to expert evidence of the signature, which caused the Court to overlook evidence that called into question the legitimacy of the Personal Guarantee as a document, and therefore undermined and prejudiced D4’s defence.

17. It is advanced the D4 raised several challenges as to the document’s authenticity, including form of execution, which were disregarded for being irrelevant to the forgery of the signature, yet ignored the expert evidence showing that the signature was electronically affixed which suggests that the Personal Guarantee isn’t a legitimate document. Therefore, the Court denied due process.

18. Further, the Claimant’s factual witness was not able to provide evidence on the question of whether D4 physically signed the agreement as he was not present at the execution of the documents, and any witnesses that could provide such evidence are still employed with the Claimant. The Claimant failed to identify the representatives who negotiated the disputed agreements, the location of the parties involved, and the identity of the Claimant’s representatives who verified the signatures on the disputed document, despite being invited to do so by D4 in his Statement of Defence. All of this was disregarded by the Court in its decision.

19. D4 also objects to the Court’s adherence to the expert evidence of Ellen Radley. It is submitted that, in her report, general statements were made to the technique used but no observations were made specifically to the Personal Guarantee as there were no ESDA impressions on the document, despite this document allegedly being executed in wet ink. This constitutes a forensic anomaly which supports the expert evidence of D4.

20. D4 also attempted to raise argument to establish the Claimant’s failure to adhere to established consumer protection regulations and lack of duty of care, including but not limited to non-adherence to the principles in the Consumer protection standards of the Central Bank of the UAE and the Dubai Financial Services Authority (DFSA) Conduct of Business Rules, which emphasises a bank’s duty to treat clients fairly, ensuring they receive clear and accurate information to make informed decisions

21. Further, the Claimant’s failures are particularly significant considering D4’s age and status as a minority shareholder in NMC, who had stepped away from active management. As a minority shareholder, D4 would not have been the sole personal guarantor for a loan. D4 relies on the English precedent in Bank St Petersburg PJSC & Ors [2020] EWCA Civ 408, which states that in cases of fraud the standard to meet is whether there is a “reasonable basis for the allegation”, which is submitted to have been met in these circumstances. If this was considered by the Court, it would have concluded that D4 could not have been aware of the Personal Guarantee.

Response to First Ground

22. This ground is lost and confuses the surviving defence, which was the subject of the Trial, with the struck-out defence; or, in the alternative, D4 appears to not have understood the scope of his own defence or the purpose of instructing his expert.

23. The focus of the Trial was upon the authenticity of the Personal Guarantee, which is established by the authenticity of the disputed signature. This focus was the direct result of the 11 March 2024 Order, which was not appealed.

24. The Claimant’s failure to call a witness who could testify that D4 personally signed the Personal Guarantee was not ignored by the Court but was specifically addressed at paragraph 102 of the Judgment. The Court determined that this lack of evidence would have harboured more weight had D4 actually pleaded evidence that he did not sign the Personal Guarantee, which he didn’t. Therefore, the Court had to consider whether the Claimant had established that D4 had signed the Personal Guarantee. By way of the expert evidence that was accepted by the Court, H.E. Chief Justice Wayne Martin was satisfied that he did sign the agreement and that there was no evidence that fraud was committed. Therefore, the Claimant’s burden of proof was discharged on this matter. This was explicitly addressed in the Judgment.

25. The Judgment had already addressed Ellen Radley’s report regarding the lack of specific reference to the Personal Guarantee and ESDA impressions at paragraphs 50 and 51. To summarise, the Court relied on her oral testimony. Radley explained the ESDA process which enables the impression left on a page which may be one or more pages below upon which the original impression is made. This can be used to determine whether the page in question was physically written on. As there is no pleaded issue in the case that the disputed documents were altered, rearranged or substituted, the line of cross-examination of the ESDA technique was irrelevant to the determination of the ultimate issue. The only question for the Court was whether the disputed signature belonged to and was written by D4. The Judgment therefore defeats D4’s objection in this ground to the Court’s approach to Ellen Radley’s general statements in her report.

26. D4 failed to give oral testimony. Therefore, any assertion that his managerial duties or personal condition would have reasonably excluded him from signing or authorising a signature on a 100% personal guarantee to the loan cannot be considered.

27. This ground has no prospect of success in demonstrating that the Judgment was wrong on the above matters. Therefore, it is dismissed.

Second Ground: Non-Consideration of Questions of Law

28. D4 submits that the Court erred in failing to permit him from raising contentions to points of law in reference to the consumer protection standards of the Central Bank of the UAE and the DFSA Conduct of Business Rules, which were allegedly highly relevant to the disputed matter as such provisions supported the defence that D4 was unaware of the Personal Guarantee and related relevant documents.

Response to Second Ground

29. The Court did not refuse D4 from using DIFC Law; it refused submissions unrelated to the disputed signature so close to trial without notice or application, as very explicitly stated in the Judgment:

“[25] Notwithstanding the clear directions I made following the Application for Immediate Judgment, in the skeleton argument filed shortly before the trial on behalf of Mr Shetty, an attempt was made to raise issues not related to the authenticity of Mr Shetty’s signature on the Guarantee. That attempt was made without prior notice to the Bank, and without any application for leave to amend Mr Shetty’s defence. In these circumstances, an attempt to introduce new grounds of contention without prior notice on the eve of trial was entirely inappropriate.” [emphasis added].

30. Further, at paragraph 26, the Judgment specifically addresses the Claimant’s compliance to the proper protocols under the DFSA Rules, which were unnecessary to consider:

“The new grounds of contention related to an alleged failure on the part of the Bank to comply with consumer protection regulations and an alleged breach of the Bank’s duty of care. In addition to the procedural irregularities to which I have referred, it was clear from a perusal of the grounds that they enjoyed no greater prospect of success than the grounds which I had struck out at the time of the Immediate Judgment Application. For these various reasons it is unnecessary to give any consideration to those grounds.”

31. D4’s misunderstanding of the Judgment does not raise a permissible ground of appeal. This ground is dismissed.

Third Ground: Erred Conclusions as to the Expert’s Independence

32. D4 objects to the Court’s conclusion that Mr Albah’s evidence lacks independence. D4 relies on RDC 31.19 and RDC 31.11 to show that the onus is on the party to instruct an expert, not counsel, who are limited to communicating changes in opinion of an expert only.

33. It is also denied that counsel were excluded from instructing Mr Albah as counsel accompanied Mr Albah to the forensic examination of the documents that took place in the Claimant’s office on 26 June 2023, and were involved in co-ordinating with Mr Albah’s office as well as filing the report in evidence. Conclusions drawn to the contrary are therefore erroneous.

34. On the Court’s reference to Mr Albah’s determination regarding D4’s signature on the Personal Guarantee only is showing lack of independence, D4 submits that the Court erred as this observation is purely egregious since Mr Albah made identical observations in the 2023 report. D4 also objects to the Court’s suggestion that Mr Albah’s qualifications are not credible as there is no “logical or legal basis for linking these factors to any purported lack of independence.”

Response to Third Ground

35. Methods of instruction formed only a small part of the Court’s decision to disregard Mr Albah’s expert evidence, but nonetheless D4 has mischaracterised counsel’s involvement as being from beginning to end, yet fails to actually state that counsel were included in the initial instruction of the expert. More importantly, the Court’s decision was based on Mr Albah’s actual evidence being inconsistent, unreliable and contradictory, as well as lacking precision and detail in the methodology and reason for his conclusion on the legitimacy of the disputed signatures.

36. The criticisms of the Judgment reasoning in this ground are baseless. The third ground has no prospect of success, and so is dismissed.

Fourth Ground: Failure to Assess the Authenticity of the Signature in the Disputed Personal Guarantee

37. D4 objects to the Court failing to physically assess the authenticity of the signature and failing to independently examine the evidence presented by the experts, as well as failing to adhere enough weight on Mr Albah’s evidence.

38. D4 suggests that the Court’s failure to examine the signature and instead depending on Radley’s evidence amounts to an error, particularly as Radley did not compare all known signatures of D4 to the disputed signature, and failed to find an identical existing signature to the disputed signature.

39. D4 excuses Mr Albah’s contradicting oral evidence by submitting through his lack of proficiency in English, which was allegedly exploited by opposing counsel. Had the Court noticed this orchestrated confusion, Mr Albah’s evidence would not have been dismissed.

Response to Fourth Ground

40. It is not for the Judge to personally investigate evidence in disputes; that is the role of the expert, on whom the Judge may rely depending on an assessment as to the credibility of the expert’s evidence.

41. It is ridiculous to suggest that an expert would have had to have sight of every known signature of D4 to legitimise their findings. Nonetheless, it is hypocritical of D4 to place this standard on Radley’s evidence as Mr Albah did not conduct his searches in this way either. It is also plainly incorrect to suggest that Radley’s objective was to find a perfectly matching signature. As clearly explained in her report and during cross examination, the methodology was to identify natural similarities and continuous strokes, as well as other markers that a signature was written by the intended person, and not copied. The Court was satisfied at the time that Radley’s expert evidence is legitimate, and D4 has failed to cast any doubt on her qualifications, method or practice in this Application.

42. The parties are free, to an extent, to instruct any relevant expert they wish. It was the choice of D4 to instruct Mr Albah, whom he has worked with before, to file an expert report on which he was called into an English-speaking court for cross examination. Had there been issues regarding language and understanding, steps could have been taken to ensure that Mr Albah felt properly understood for the purpose of proceedings. D4 failed to take any such steps or raise any such concerns as to Mr Albah’s understanding and communication. Now is not the appropriate time to contest these procedural decisions, nor do these objections contribute to demonstrating that the Judgment was wrong.

43. The fourth ground is dismissed. It has no prospect of success.

Application of the Overriding Objective

44. Finally, D4 submits that the Court did not abide by RDC 1.6 (the Overriding Objective) in its decision-making process, therefore depriving D4 of a fair opportunity to present and defend his case. This submission is based on allegations that the Court declined to consider points of law that were crucial to the defend on the ground that they were not expressly pleaded in the written defence, which is inconsistent with RDC 1.6(1) and (4). No such strictness was shown for the Claimant’s evidence.

45. Further, the Court’s decision to restrict the scope of the Trial to the disputed signature is submitted to be contrary to RDC 1.6(4).

46. Overall, D4 submits that the Court’s failure has resulted in a biased adjudication which warrant a reversal of the Judgment and the setting aside of the First Refusal Order.

47. Independently, none of the grounds submitted have any prospect of success, which is why they have been dismissed. D4’s effort to encompass the Judgment and the Court’s approach as non-compliant with the Overriding Objective is, despite not standing as an actual ground of appeal, also without any prospect of success.

48. The Judgment reasoning was explicitly clear. All evidence that was relevant to the live issue at Trial was carefully considered; the reason for disregarding Mr Albah’s evidence was grounded in demonstrated inconsistency and unreliability. D4 has attempted to widen the scope of his defence and state that he was denied a fair trial, when in fact he absolved his own opportunity to appeal the 11 March 2024 Order.

49. I do not find there to be any merit in this additional point, nor would it qualify to be permitted to carry this Application through to appeal.

Conclusion

50. All four grounds, and the supplementary submission, have failed on the basis that they do not have any prospect of success in showing that the Judgment was wrong on law, fact or procedure.

51. As the Claimant did not respond to this Application, there will be no order as to costs.