EMIRATES BANK INTERNATIONAL PJSC Vs. VIJAY TALWAR

JUDGEMENT

(1.) THIS suit has been filed by the plaintiff (Bank) for recovery of uae DHS 18,13,801. 74 from the defendant. It is pleaded by the plaintiff Bank that it was having its registered office at Dubai, United Arab Emirates (UAE)and a representative office in India. Defendant, a citizen of India and resident of New Delhi was temporarily residing and carrying on business at dubai. He was promoter/shareholder and Director of a Company in Dubai named marmo Company LLC having its registered office at P. O. Box 60057, Dubai (UAE ). This company was in the business of manufacturing/processing and sale of mosaic and marble products. The company was fully financed and managed by the defendant and his wife Mrs. Ramni Talwar. On 12th February, 1995, the defendant as the Director of Marmo Company LLC approached the plaintiff Bank for opening an account with the Bank in the name of Marmo Company LLC. Along with account opening form, the defendant submitted a true copy of his passport showing his permanent address as 187, Jor Bagh, New Delhi. Relying on the information provided by the defendant, an account of Marmo Company LLC was opened by the plaintiff bank on 18th March, 1995. The defendant also approached the plaintiff bank for certain loan/credit facilities for his company on 6th March, 1995 and a facilities Agreement was entered into wherein the defendant could avail from the plaintiff, credit facilities from time to time upto a limit of UAE DHS 2,50,000 by way of overdraft and UAE DHS 41,00,000 by way of documentary credits and other kinds of banking facilities. The defendant was duly authorized by Marmo company LLC for obtaining these facilities from the plaintiff Bank pursuant to a board Resolution dated 7th February 1995. The defendant had agreed and undertaken to pay the plaintiff back, on first demand, all the sums due plus interest, expenses and other charges that may be levied in accordance with the bank's requirements. It was agreed that in case the defendant decided to leave the State of UAE with the intention of taking up residence elsewhere, the defendant shall inform the plaintiff Bank in advance and shall repay any advances outstanding before departure. The defendant executed a personal guarantee on 7th March, 1995 in favour of the plaintiff Bank guarantying the payment to the plaintiff Bank of all amounts which may from time to time become due to the plaintiff Bank from Marmo Company LLC. On 1st August, 1996 at the request of the defendant, the plaintiff Bank enhanced the facilities available to the Marmo Company LLC to a total of UAE DHS 5,00,000 by way of overdraft and uae DHS 53,18,000 by way of documentary credits and bills drawn under them. The Marmo Company LLC availed the facilities provided under the Facilities agreement from time to time and the defendant executed necessary documents required by the plaintiff Bank. Due to the irregularity in payments and settlement of the liability under the facilities, the plaintiff Bank reduced the grant of facilities to the defendant and his Company on 25th September, 1997. The reduced credit facilities granted to the defendant was of UAE DHS 2,50,000 by way of overdraft facility and UAE DHS 29,72,625 by way of documentary credits. The credit facilities were granted by the plaintiff Bank to Marmo company LLC in consideration of a pledge of Marmo Company's assets including equipment, machinery and vehicles financed by the plaintiff Bank and the personal guarantee of the defendant. On 24th September, 1997 Marmo Company LLC confirmed the correctness of balance of accounts showing following balances:

(2.) THE plaintiff submitted that it appeared that the defendant after confirming the outstanding amounts on 25th September 1997, fraudulently fled from UAE without paying the dues and without informing the plaintiff Bank. Apparently the defendant and his wife Mrs. Ramni Talwar fled from UAE as one of the creditors had filed a complaint for bounced cheques against the the defendant. An amount of UAE DHS 16,44,365. 34 had become payable by Marmo company LLC to the plaintiff as on 31st August, 1998. The plaintiff filed a suit before the Dubai Court of First Instance on 12th September, 1998 against marmo Company LLC and the defendant for recovery of this amount along with contractual interest at the rate of 10. 25%. The plaintiff also prayed for the confirmation of the mortgage over the Marmo Company's assets and for confirming the validity of the provisional attachment No. 1950/98 by a self-executing decree without bail.

(3.) ON 30th November, 1998, Dubai Court of First Instance passed a judgment and decreed the suit of the plaintiff against Marmo Company LLC and the defendant jointly, to pay to the plaintiff Bank a sum of UAE DHS 16,44,365. 34 along with interest of 10. 25% p. a. from the due date upto the date of full payment. The Court also confirmed the validity of the mortgage made over the company's assets dated 25th May, 1997 and the attachment No. 1950/98. It is submitted that the decree was passed by the Dubai Court of First Instance on the merits of the case after considering the documents and the pleadings. It is also stated that the defendant's attorney was notified of the case but the defendant's attorney did not attend the Court. After passing of the judgment and decree, the plaintiff Bank initiated execution proceedings and realized an amount of AED 305,830. 57 on 3rd July, 2000 by the sale of the assets of Marmo company LLC. However, a sum of UAE DHS 1,813,801. 74 was still outstanding as on 27th November, 2001.