Full Judgment Text
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 18.09.2024
+ CS(COMM) 800/2024
OMIRICO LIMITED & ANR. .....Plaintiffs
Through: Mr.Anand Tiwari, Mr.Vijay
Nair, Ms.Pallavi Tayal and
Ms.Tanvi, Advs.
versus
PJSC SBERBANK & ANR. .....Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
I.A. 39656/2024
1. This is an application seeking condonation of delay in re-filing
of the Suit.
2. For reasons stated in the application, the delay is condoned.
3. The application is, accordingly, disposed of.
I.A. 39655/2024
4. This application has been filed by the plaintiff under Order
XXXVIII Rule 5 read with Section 151 of the Code of Civil
Procedure, 1908.
5. The application has been rendered infructuous in view of the
Order passed today and the same is, accordingly, disposed of.
CS(COMM) 800/2024
6. This Suit has been filed by the plaintiffs, praying for the
following reliefs:
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CS(COMM) 800/2024
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By:SUNIL
Signing Date:21.09.2024
17:59:43
“ a. Pass a Decree of Mandatory Injunction,
thereby enforcing the Mareva Injunction
Order dated 14.08.2023 passed by the District
Court of Nicosia, Cyprus in Action No. 2019 of
2023 and prohibiting the Defendant No. 1
personally and/or its employees and/or
servants and/or agents and/or front mans
and/or directors and/or officials and/or
officers and/or representatives to use and/or
remit and/or transfer and/or withdraw and/or
burden by any means and/or donate and/or
assign and/or pledge and/or otherwise dispose
and/or alienate any assets and/or amounts up
to US$170,000,000.00 (one hundred seventy
million USD) and/or equivalent amount in any
other currency at the time of the issuance of
the present order from its accounts and/or
bank accounts the Defendant No.1 maintains
in banks and/or banking Institutions and/or
financial and/or private banking institutions in
India, and/or any other assets up to the
amount of US$170,000,000.00 (one hundred
seventy million USD) and/or prohibit all
transactions of the Defendant No. 1's bank
accounts and/or prohibit any payment of third
party claims and/or any other transaction
and/or transactions in regards to the
Defendant No. 1's capital up to the amount of
US$170,000,000.00 (one hundred seventy
million USD) under its direct and/or indirect
control and/or ownership until the final
decision of the District Court of Nicosia,
Cyprus in Action No. 2019 of 2023 and/or
until any further Court Order.”
7. It is the case of the plaintiffs that a Loan Agreement dated
15.12.2010 was entered into between the plaintiff no.2, that is,
Torresant Industry Limited, and the plaintiff no.1/Company, that is,
Omirico Limited, whereunder the plaintiff no.2 lent an amount of
$117,980,000 to the plaintiff no. 1. The loan amount was advanced for
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CS(COMM) 800/2024
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By:SUNIL
Signing Date:21.09.2024
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a period of 5 years to be repaid on or before 15.12.2015.
8. The plaintiffs state that, thereafter, by way of addendums, the
due date for the repayment of the loan had been extended. Finally,
vide Letter dated 04.03.2022, a demand notice was issued by the
plaintiff no.2 on the plaintiff no.1, seeking repayment of the loan
amount. Subsequently, on 12.04.2022, the plaintiff no.2 preferred a
winding up petition bearing Petition No.132/2022 in the District Court
of Limassol against the plaintiff no.1.
9. An Interim Order dated 14.04.2022 was passed by the District
Court of Nicosia, thereby, appointing a provisional liquidator, namely,
Mr.Ionnis Poyiadjis.
10. Several correspondences were exchanged by the said liquidator
with the Directors of the plaintiff no.1, who gave him various
documents and evidence in order to trace and safeguard the assets of
the plaintiff no.1.
11. The liquidator also informed the defendant no.1, vide a Letter
dated 06.05.2022, of the Prohibition Order dated 14.04.2022 passed
by the District Court of Nicosia.
12. It was also realised that the plaintiff no.1 had deposited
approximately $153,945,145, distributed in four accounts in the
defendant no.1, Moscow, Russia, and had also deposited a sum of
$42,236 with a Bank named Societe Generale.
13. The liquidator went ahead and attempted a test transfer of
€5000 (RUB 300,000) to a banking institution situated outside Russia.
The aim of the liquidator was to transfer the whole amount of $
153,945,145, being the deposit of the plaintiff no.1. However, by an
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CS(COMM) 800/2024
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By:SUNIL
Signing Date:21.09.2024
17:59:43
Order bearing no.03-12-4/9244 dated 29.09.2022 of the Central Bank
of the Russian Federation, the said transfer was blocked and thus,
rejected by the defendant no.1.
14. A letter was issued by the defendant no.2, who is the 100%
shareholder of the plaintiff no.1, to the Prosecutor General of the
Russian Federation requesting to confiscate the deposited amount of
the plaintiff no.1. Based on the said letter, the Deputy Prosecutor
General of the Russian Federation initiated proceedings against the
Magomedov Brothers (Summa Group) and the plaintiff no.1, and filed
a Statement of Claim with the Russian Court for confiscation of the
assets of the plaintiff no.1 situated with Sberbank, that is, the
defendant no.1.
15. On the same day, the Statement of Claim was accepted by the
Russian Court, and by the Order dated 02.12.2022, the Russian Court
being satisfied with the claims by the prosecutor, seized and blocked
the account of the plaintiff no.1 held in the defendant no.1/Bank for an
amount of $150,289,000. An appeal filed by the plaintiff no.1 in the
High Court of Russia against the said order was also dismissed, vide
Order dated 20.04.2023.
16. In the meantime, an interim receiver was appointed by the
District Court of Nicosia, Cyprus, and by an Order dated 14.08.2023,
the said Court allowed an ex parte application filed by the liquidator,
granting a worldwide injunction (“Mareva Injunction”) for securing
the assets of the plaintiff no.1 against the defendant no.1 and
restraining the defendant no.1 from disposing off assets to the extent
of $170,000,000. It is for the enforcement of the said order that the
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CS(COMM) 800/2024
Digitally Signed
By:SUNIL
Signing Date:21.09.2024
17:59:43
present Suit has been filed by the plaintiffs.
17. The final winding up order of the plaintiff no.1 was passed by
the said Court on 29.03.2024.
18. The plaintiffs in the present suit seek to invoke the territorial
jurisdiction of this Court by asserting as under:
“24. That this Hon'ble Court has the
territorial jurisdiction to entertain and decide
the present suit as some of the assets of the
Defendant No. 1, against whom effective
orders are being sought, are situated within
the jurisdiction of this Hon'ble Court and the
Defendant No. 1 is carrying on its business in
the ordinary course within the territorial
jurisdiction of this Hon'ble Court.
Accordingly, this Hon'ble Court has the
jurisdiction to adjudicate upon the present
dispute.”
19. The Memo of Parties that has been filed in the present Suit is as
under:
“ MEMO OF PARTIES
1. OMIRICO LIMITED
A Company registered under the laws of
Cyprus
Having its Office at
195, Archbishop Makarios III Avenue,
Neocleous House, 3030,
Limassol, Cyprus.
THROUGH ITS LIQUIDATOR
MR. ANDREAS I. KARYDES
Available at
12, Mykinon Street, 6th Floor
1065, Nicosia
Cyprus.
2. TORRESANT INDUSTRY LIMITED
A company incorporated under the
Laws of the British Virgin Islands
Registration number 677246
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CS(COMM) 800/2024
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By:SUNIL
Signing Date:21.09.2024
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Having its registered office at
Drake Chambers, PO Box 3321,
Road Town, Tortola,
British Virgin Islands
… PLAINTIFFS
VERSUS
1. PJSC SBERBANK
A public Joint Stock Company
Incorporated under the Laws of Russia
Having its principal office at
19 Vavilova Street,
117997 Moscow
Russia
E-mail: nodalofficer@sberbank.ru
And Indian offices at:
Upper Ground Floor &
Fourth (4th) Floor
Birla Tower,
25-Barakhamba Road,
New Delhi
India – 110001.
E-mail: nodalofficer@sberbank.ru
AND
81-B, 8th Floor ,
5th North Avenue,
Maker Maxity,
Bandra Kurla Complex,
Bandra East, Mumbai,
Maharashtra, 400051
E-mail: nodalofficer@sberbank.ru
2. P JSC TRANSNEFT
A public Joint Stock Company
incorporated under the Laws of Russia
Having its registered office at
57, Bol'shaya Plyanka Street
119180, Moscow,
Russia
E-mail: transneft@ak.transneft.ru
...... DEFENDANTS ”
Signature Not Verified
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CS(COMM) 800/2024
Digitally Signed
By:SUNIL
Signing Date:21.09.2024
17:59:43
20. As is noted herein above, the present Suit has been filed by the
plaintiffs seeking enforcement of the Mareva Injunction Order dated
14.08.2023 passed by the District Court of Nicosia, Cyprus in Action
No. 2019 of 2023, and prohibiting the Defendant No. 1 to use and/or
remit and/or transfer and/or withdraw and/or burden by any means
and/or donate and/or assign and/or pledge and/or otherwise dispose
and/or alienate any assets and/or amounts up to US$170,000,000.00
(one hundred seventy million USD) and/or equivalent amount in any
other currency at the time of the issuance of the present order from its
accounts and/or bank accounts the Defendant No.1 maintains in banks
and/or banking Institutions and/or financial and/or private banking
institutions in India, and/or any other assets up to the amount of
US$170,000,000.00 (one hundred seventy million USD) and/or to
prohibit all transactions of the Defendant No. 1's bank accounts and/or
prohibit any payment of third party claims and/or any other
transaction and/or transactions in regards to the Defendant No. 1's
capital up to the amount of US$170,000,000.00 (one hundred seventy
million USD) under its direct and/or indirect control and/or ownership
until the final decision of the District Court of Nicosia, Cyprus in
Action No. 2019 of 2023 and/or until any further Court Order .
21. In the present case, it is an admitted fact that the alleged money
of plaintiff no.1, held in defendant no.1 bank, is deposited at the
branch in Russia. The documents also show that none of the
transactions have taken place within the jurisdiction of this Court
either between the plaintiff no.1 and the plaintiff no.2 or between the
plaintiffs and the defendant no.1.
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CS(COMM) 800/2024
Digitally Signed
By:SUNIL
Signing Date:21.09.2024
17:59:43
22. Further, the assets that the plaintiffs seek to be injuncted
through the present Suit are also situated in Russia, and as is evident
from the orders referred hereinabove, have been seized by the Russian
Courts. Though the plaintiffs make several averments on why the said
orders are procedurally and otherwise wrong, it is not for this Court to
look into those issues, also in absence of the party at whose instance
those orders were passed.
23. The plaintiffs themselves disclosed that the defendant nos.1 and
2 are both situated in Russia.
24. The plaintiffs have given no details of any property or assets of
the defendants within the jurisdiction of this Court. The Suit is
completely vague and silent on this vital aspect. They have probably
sought to invoke the territorial jurisdiction of this Court only by
giving the office address of some branch of the said defendant no.1 in
India. In my opinion, this is not sufficient to invoke the jurisdiction of
this Court when admittedly the assets are situated in Russia, money is
also admittedly held in Russia and there are orders passed by the
Russian Courts in regard thereto.
25. The Suit is totally misconceived and smacks of mala fide .
26. The Suit is, accordingly, dismissed imposing costs of
Rs.1,00,000/- on the plaintiffs, to be deposited with the Delhi High
Court Bar Clerks’ Association within a period of four weeks from
today.
NAVIN CHAWLA, J
SEPTEMBER 18, 2024 /ns/ VS
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Signature Not Verified
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CS(COMM) 800/2024
Digitally Signed
By:SUNIL
Signing Date:21.09.2024
17:59:43