February 12, 2026 court of first instance - Orders
Claim No: CFI 055/2020
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
NS INVESTMENTS LIMITED
Claimant
and
AJAY SETHI
Defendant
ORDER WITH REASONS OF H.E. DEPUTY CHIEF JUSTICE ALI AL MADHANI
UPON the Consent Order dated 15 June 2023 (the “June Consent Order”)
AND UPON the Judgment of H.E. Deputy Chief Justice Ali Al Madhani dated 27 September 2023 (the “Judgment”)
AND UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated 7 February 2025 awarding 50% of the Defendant’s legal costs (the “Costs Order”)
AND UPON the Claimant’s Application No. CFI-055-2020/11 dated 6 February 2025 seeking a variation of the Consent Order and the Judgment (the “Variation Application”)
AND UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated 21 January 2026 (the “January Order”)
AND UPON the Claimant’s Application No. CFI-055-2020/13 dated 30 December 2025 seeking an extension of time to commence detailed costs assessment (the “Extension Application”)
AND PURSUANT TO the Rules of the DIFC Courts (“RDC”)
IT IS HEREBY ORDERED THAT:
1. The Variation Application is granted.
2. The Extension Application is granted. The Claimant is to file its Detailed Costs Assessment pursuant to the Consent Order dated 15 June 2023 and the Costs Order dated 7 February 2025 by no later than 4pm on 27 February 2026.
3. There shall be no order as to costs.
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 12 February 2026
At: 3pm
1. Two applications will be dealt with in this Order;
(a) the Claimant’s Application No. CFI-055-2020/11 dated 6 February 2025 (the “Variation Application”); and
(b) the Defendant’s Application No. CFI-055-2020/13 dated 30 December 2025 seeking an extension of time to commence detailed assessment costs (the “Extension Application”).
2. As it is not necessary to do so at this point in proceedings, I will dispense with a reiteration of the case background and procedural history, unless where needed for context.
The Extension Application
3. The Extension Application, submitted pursuant to RDC 4.2(1) and 40.13, was filed on 30 December 2025, and the Certificate of Service was filed on and effective from 15 January 2026. Therefore, the time for the Defendant to file evidence in answer has now lapsed pursuant to Rule 23.41(2) of the Rules of the DIFC Courts (“RDC”); I accept that this Extension Application is therefore uncontested.
4. This Extension Application is made seeking an extension of time under RDC 4.2(1) for the Claimant to file its Detailed Costs Assessment pursuant to the Consent Order dated 15 June 2023 and the Costs Order dated 7 February 2025 by no later than 30 January 2026, and an order confirming that no sanction should be imposed in respect of the timing of the Claimant’s Detailed Costs Assessment including as regards interest, particularly in circumstances where neither party has initiated a DCA to date and the Defendant has already obtained an order for 50% of his claimed costs on account in his favour, pursuant to RDC 40.13.
5. RDC 4.2(1) grants the Court case management powers to adjust the time for compliance with any court order, even if the application to do so is made after the time for compliance expires, and RDC 40.13 reads that:
“If:
(1) the paying party has not made an application in accordance with Rule 40.11; and
(2) the receiving party commences the proceedings later than the period specified in Rule 40.10;
the Court may disallow all or part of the interest otherwise payable to the receiving party under Article 39 of the Court Law, No. 10 of 2004 but must not impose any other sanction except in accordance with Rule 38.60.”
6. Additionally, the Claimant highlights that the Costs Order does not address the Claimant’s entitlement to costs under the procedural history of the case; this is determined below for the Variation Application.
7. As the Extension Application goes uncontested, and considering that the extension sought is moderate, the procedural history is fragmented and complex, and no prejudice against the Defendant is brought to the attention of the Court, I see no reason not to grant the Extension Application. As the original deadline in the Extension Application has now lapsed, I will grant a different deadline of my own initiative under the Court’s case management powers at RDC 4.2(14).
8. The Extension Application is granted.
The Variation Application
9. This Variation Application was filed on 6 February 2025, seeking a variation of two orders;
(a) Paragraph 2 of the Consent Order dated 15 June 2023 (the “June Consent Order”) is varied to read as follows: “The Defendant shall pay the Claimant’s costs of the claim for repayment of the principal amount of the Loan, such costs to be assessed if not agreed”.
(b) Paragraph 4 of the Judgment of H.E. Deputy Chief Justice Ali Al Madhani dated 27 September 2023 (the “Judgment”) is varied to read as follows: “The Claimant shall pay the Defendant’s costs of the claim for interest on the Loan, to be assessed if not agreed.”
10. The power to vary of amend orders to correct misstatements, omissions or language is found at RDC 36.41, which reads:
“The Court may at any time correct an accidental slip or omission in a judgment or order.”
Further, the Court has inherent power to vary its own order to make the meaning and intention of the Court clear under RDC 36.45. Given that the nature of a consent order is for the Court to encapsulate the intention and settlement terms of the parties within its own format and forum, it falls within the scope of the Court’s inherent power as well as the general power in RDC 36.41. Therefore, I am satisfied that the Court has jurisdiction to vary the June Consent Order.
11. In support of this Application, the Claimant filed the Second Witness Statement of Joshua Kemp. This statement has already been considered in the January Order, but by way of brief summary for each variation request;
(a) The language of the June Consent Order had a different meaning than contended by the Defendant in the First Witness Statement of Salah Mattoo. In an email dated 8 May 2023, the Defendant confirmed that it no longer intended to contest the claim for the principal loan amount, and instead focus the determinative issue on the outstanding interest. The Claimant agreed. On 9 May 2023, it was agreed that the consent order would deal with costs. On further communication up until the 14 June 2023, including the Pre-Trial Review on 18 May 2023, Kemp submits that it was clear that the June Consent Order required a term for the Defendant to pay the Claimant’s costs of proceedings to date for the Principal Loan Amount, and that quantum would be determined by way of detailed assessment. However, paragraph 2 of the June Consent Order reads “in the case”, which was not intended. This is merely a drafting error, of which the Defendant is seeking to take advantage of, as there is no discernible reason for the Claimant to agree to only have their costs of the principal claim on the condition that they would prevail on the interest claim.
(b) Second, Kemp submits that the summary order of the Judgment reads on its face that the Claimant was to pay the Defendant’s costs of the whole proceedings, including the Principal Loan Amount. With context, this is not the case, as the only live issue for the Judgment was the loan amount, as clearly reflected in paragraph 1 of the Schedule of Reasons:
“This claim is brought entirely on the basis that the Claimant is entitled to be paid the agreed interest rates arising from a loan agreement (the “Loan Agreement”) signed between the Claimant and the Defendant on 2 July 2019 (the “Claim”).”
No submissions were made during the Trial that would circumvent the intention of the June Consent Order. Therefore, the proper construction of the Judgment is that the Claimant is liable for the Defendant's costs on the interest claim only; any other wording is solely the consequence of the unfortunate syntax of the June Consent Order. Further, the Defendant withdrew his counterclaim with no order as to costs, yet did not exclude those costs from the total amount he claims to have incurred.
12. The January Order has an effect on the Variation Application insofar as it blocks any other avenue except to award the application on its face. At paragraph 7 of the January Order, the Defendant’s Refund Application is rejected on the basis that it constitutes a “fresh claim”, therefore defeating any opportunity for the Defendant to circumvent the absence of a counterclaim and recover any costs that could be incurred through bringing the refund issue to current proceedings. The Detailed Assessment Application was granted, and at paragraph 13 of the January Order it reads:
“The only live issue in this case post the 15 June 2023 Consent Order, was the interest as the Defendant conceded on the Principal Amount of USD 1,298,977. This was paid. Therefore, pending costs should only be paid for successful applications regarding the interest.”
13. In my view, even if costs were not addressed in the June Consent Order, the January Order makes clear that the Defendant’s awarded costs are limited to its success in the interest claim.
14. Paragraph 8(b) of the Fifth Witness Statement of Salah Matoo reads:
“it is a fact that the Defendant was the successful party at all stages of this litigation. All the issues to be determined by the Courts were decided at the Trial.”
This is both wrong and contradictory. The Defendant was successful on the determinative issue and all applications relating to the interest only. The Defendant was not successful at “all stages of this litigation”; the Defendant conceded with the Principal Loan claim.
15. Costs follow the event; this is the standard rule. The ‘event’ in this case is the Trial issue, being the interest claim. This does not include pre-Trial correspondence on the concession of the Principal Loan claim when in reference to the Judgment. I am satisfied that the parties intended to include costs to date regarding the Principal Loan in the June Consent Order based on the correspondence filed under ‘Exhibit JK2’. It would not make sense for the Claimant to suspend costs owed until the conclusion of the Trial, and risk losing owed costs to the loss of the Interest claim.
16. The summary order of the Judgment, at paragraph 4, reads:
“The Defendant shall be awarded their costs of these proceedings…”
This was intended to isolate costs to the Trial outcome, not to reference the entire procedural history including the Principal Loan claim.
17. Therefore, on the basis that it is clear the parties intended to award costs to the Claimant for the June Consent Order, and that the January Order limits the Defendant’s scope of recoverable costs, and that the Judgment was intended to limit the costs awarded to the Defendant to the Trial issue, the Variation Application is granted.
18. The June Consent Order and the Judgment shall be amended at paragraphs 2 and 4 respectively to read as follows:
(a) “The Defendant shall pay the Claimant’s costs of the claim for repayment of the principal amount of the Loan calculated up to 15 June 2023, with such costs to be assessed if not agreed.”
(b) “The Claimant shall pay the Defendant’s costs of the claim for interest on the Loan, to be assessed if not agreed.”
Conclusion
19. For the aforementioned reasons, both Applications are granted.
20. There shall be no order as to costs.
