Jhaveri Darsan Jitendra v Lakshmi Anil Salgaocar (as Administratrix of the Estate of Anil Vassudeva Salgaocar, deceased)
| Jurisdiction | British Virgin Islands |
| Judge | Adderley J |
| Judgment Date | 01 April 2019 |
| Judgment citation (vLex) | [2019] ECSC J0401-3 |
| Docket Number | CLAIM NO.: BVIHC (COM) 83 of 2017 |
| Court | High Court (British Virgin Islands) |
| Date | 01 April 2019 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(COMMERCIAL DIVISION)
CLAIM NO.: BVIHC (COM) 83 of 2017
CLAIM NO:. BVIHC (COM) 213 of 2017
Mr Kenneth MacLean QC of Serle Court and with him Mr Matthew Brown and Dr Alecia Johns of Conyers Dill and Pearmen for the applicant
Mr Toby Landau QC of Essex Court Chambers and with him Mr James Nobel and Stuart Cullen of Harney Westwood and Riegels for the respondents
Forum non conveniens — Stay of proceedings — Issue Estoppel
Adderley J Ag: On 28 February, 2019 I dismissed the applications in this matter to set aside service outside the jurisdiction, and the application for a stay of the proceedings. I promised to give my reasons at a later date and now do so.
There were four applications before the court. Two of the applications ( the set aside applications) in BVIHC( COM) 83 of 2017 (“BVI 83”) and 213 of 2017 (“BVI 213”) were made by Mrs Lakshmi Anil Salgacor ( Mrs Salgaocar) in her capacity as administratrix of the Estate of Mr Anil Vassudeva Salgaocar Deceased (“the Estate”) to set aside permission granted by Wallbank J at an ex parte hearing on 26 April 2018 to serve proceedings in both actions out of the jurisdiction on Mrs Salgaocar.
The questions for resolution were fairly summarized as follows:
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(1) The other two applications ( the stay applications) were by two British Virgin Islands (“BVI”) companies, Winter Meadow Capital Inc ( Winter Meadow) and Million Dragon Wealth Limited ( Million Dragon) for a stay of the same proceedings brought against them. Million Dragon and Winter Meadow are special purpose vehicles companies(SPVs) which indirectly hold assets located overseas and do not carry on any trading activities in the BVI or elsewhere.
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(2) At all material times Million Dragon was the sole shareholder 22 BVI Subsidiary Companies, each of which owned 1 of 22 apartments in a real estate development in Singapore known as Newton Imperial Condominium development and Winter Meadow indirectly owned marine and shipping assets which were employed in the mining shipping and transportation of iron ore from India to China by a businesses controlled by the claimant and deceased.
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(3) The principle ground relied on by the Estate to support the set aside applications was it's contention that the BVI is not clearly and distinctly the appropriate forum to bring the claims and that the claimants failed to discharge their burden at the ex parte stage to show that it was. The principal ground for the stay applications is that the BVI is not the appropriate forum to bring the claims and Singapore clearly is.
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(4) Mrs Salgaocar is the applicant in the set aside application and Million Dragon and Winter Meadow are respectively defendants in the actions, and the applicants in the stay applications.
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(5) Mr Jhaveria Darsan Jitendra (“ Mr Jitendra”) along with PD Holdings Limited (PDH) a special purpose vehicle company incorporated in the United Arab Emerites (“UAE”) which Mr Jitendra at all material times controlled, are the co-claimants in the actions and the respondents to the set aside applications
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(6) I should point out at the outset that in making my decision on the applications, in accordance with my mandate, I must examined the evidence and the law and exercised my discretion afresh.
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(a) whether the Estate should be allowed to relitigate issues that have already been decided by the Singapore High Court in in Anti Suit Injunction Proceedings (“ASI Proceedings”)
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(b) whether, in any event, BVI 83 and BVI 213 should be stayed against the BVI defendants under the forum non conveniens principle
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(c) whether service of BVI 83 and BVI 213 on the Estate should be set aside on the basis that the BVI is no the natural forum
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(d) whether BVI 83 and BVI 213 should be stayed on “case management” grounds
The Deceased was a successful businessman who amoung other things had mining interests in Goa and Karnataka, India.
Mr Jhaveria Darsan Jitendra ( Mr Jitendra) is an Indian Businessman with residency in Hong Kong with close connections in Singapore who at some point engaged in the diamond trade in India. The Deceased and Mr Jitendra were long-standing business partners before his death, however this relationship subsequently unraveled.
In the events which happened there was disagreement in their business dealings. The Deceased claimed that Mr Jitendra held a substantial amount of assets in trust for him and had failed to account for all of those assets despite his written demand that he do so. Consequently in 2015 he issued proceedings in the High Court of Singapore Suit No. HC/S821/2015 ( Suit 821) against Mr Jitendra.
In the Statement of Claim (Amendment No. 3) of Suit 821 at paragraph 2 (a – e), the Deceased alleged that an Oral Agreement was struck in or around December 2003 (“ the 2003 Agreement”) in Honk Kong in the Marco Polo Hong Kong Hotel whereby:
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(a) the Deceased would set up special purpose vehicles (SPV's) for the conduct of businesses and the holding of assets/investments. In particular, establishing SPV's which would be international business companies incorporated in the British Virgin islands for selling iron ore into China. It should be noted that none of these SPVs referred to Million Dragon and Winton Meadow.
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(b) the Deceased would be responsible for the provisions of all funds required for the SPVs including for the capitalization making of investments, acquisition of assets, and for all operating and trading expenses. At the same time the Deceased would have complete and unrestricted control of all aspect of the operation of the SPVs' businesses and finance insofar as he desired it
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(c) Mr Jitendra would be shareholder and/or director of the SPV's and would hold the shares in the SPV's as the Deceased's nominee shareholder and /or fiduciary and/or alternatively, Mr Jitendra was to hold his positions within the SPVs (including his position as shareholder and/or director and/or bank signatory of the SPVs) as a nominee and/or fiduciary and/or otherwise for the benefit of or to act on the instructions of the Deceased. Mr Jitendra would act in accordance and comply with any and/ or all instructions from the Deceased as to any actions to be taken on connection with the SPV's (including all monies and/or investments and/or other assets held by the SPV's.
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(d) The Deceased would be the sole beneficial owner of all the shares issued in the SPV's (including but not limited to the SPV-BVI Companies) and all monies and/or investments and/or other assets held by the SPVs. Mr Jitendra would hold any interest he may have in the SPV Assets on trust for the Deceased.
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(e) In consideration, the Deceased agreed to pay Mr Jitendra US$0.50 for each wet metric ton (WMT) of cargo sold by an SPV-BVI Trading Company on a C&F basis.
In support of his claim, the Deceased entered caveats on the land title register of various properties in Singapore that were owned by Mr Jitendra, his wife, and/or some SPVs. The Deceased claimed that trust monies had been used to purchase those properties, and that he accordingly had a proprietary interest in them. However, in the Caveat Removal Proceedings, initiated by Mr Jitendra, the Singapore Court of Appeal held that the Deceased claim in Suit 821 is only for the shares in the SPV's incorporated in Singapore and not their assets.
Mr Jitendra did not contest the jurisdiction of the Singapore High Court to adjudicate on Suit 821. In a 145 paragraph defence Amendment No 1 dated 30 October 2015 he denied that there was a “2003 trust agreement”, and outlined that he, not the Deceased, funded the SPVs, trading and investment companies.
Mr Salgaocar died intestate on 1 January 2016 before Suit 821 could progress to trial. His death sparked a dispute that arose between Mrs Salgaoar, and Chandana Anil Salgoacar Mr Salgaocar's daughter, over who should be appointed administratrix of the estate. Such litigation was long and protracted and due to the passage of time Mr Jitendra sought to have Suit 821 discontinued but was unsuccessful.
On 16 May 2017 Mr Jitendra issued BVI 83 against the Estate and Million Dragon. On 7 June 2017 Mrs Salgoacar issued an anti suit injunction (OS 627”) in Singapore pertaining to BVI 83 in her personal capacity seeking to stop BV183 from proceeding.
On 27 July 2016 Receivers were appointed ex parte over Million Dragon in an unrelated matter. They were discharged from office in October 2018.
On 3 December 2017 Mr Jitendra issued BVI 213 against the Estate and Winter Meadow. Both Million Dragon and Winter Meadow filed an acknowledgement of service but reserved their right to make a jurisdictional challenge which is the subject matter of these applications.
On 22 February 2018 Mrs Salgoacar, the wife of the deceased was appointed by the BVI Court administrator ad collogenda bona of the Deceased's estate in the BVI which consisted of shares in Million Dragon and Winter Meadow.
In BVI 83 the claimant claims under an alleged oral agreement (“June 2014 Agreement 1”) whereby the deceased agreed to pay back a ‘shareholder's loan’ made by him through his daughter, the sole shareholder of Million Dragon who at all material times was acting as his nominee. The loan was in the sum of US$41,500,000 and SGD$1,400,000 and the repayment of the loan less amounts that have been received for rent of units in the...
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