Pradeepto Kumar Biswas v Sabyasachi Mukherjee and another

• Jurisdiction: Singapore
• Judge: See Kee Oon JAD
• Judgment Date: 31 January 2024
• Neutral Citation: [2024] SGHC(A) 3
• Hearing Date: 27 December 2023
• Docket Number: Originating Application No 54 of 2023
• Citation: [2024] SGHC(A) 3
• Court: High Court Appellate Division (Singapore)
• Year: 2024
• Subject Matter: Civil Procedure,Extension of time,Applicable legal principles for extension of time to file an application for permission to appeal,Prospect of success
• Published date: 01 February 2024

[LawNet Admin Note: The following judgment is displayed as received from source]

Audrey Lim J (delivering the judgment of the court):

By AD/OA 54/2023 (the “EOT Application”), the Applicant, Mr Pradeepto Kumar Biswas, seeks an extension of time to file an originating application for permission to appeal against the decision of Goh Yihan J (the “Judge”) in HC/SUM 268/2023 (“SUM 268”). While the four factors applicable to an application for extension of time are well-settled and not in dispute, in our view, the relevant considerations pertaining to the third factor (ie, the prospect of success) merit some clarification in the context of an application for extension of time to file an application for permission to appeal.

Background and the decision in SUM 268

We begin by briefly setting out the relevant procedural background.

On 1 December 2022, the Assistant Registrar (the “AR”) adjudged the Applicant a bankrupt in HC/B 2425/2021 (“B 2425”). The AR at the same time dismissed the Applicant’s other applications: in SUM 3718/2022 (“SUM 3718”) to stay the proceedings in B 2425 pending the determination of HC/OA 152/2022 (being the Applicant’s application for pre-action discovery against other parties); and in SUM 4306/2022 (“SUM 4306”) to dismiss B 2425 which the Applicant claimed to be based on a false case HC/S 1270/2014 (“Suit 1270”).

In Suit 1270, the Applicant was found liable to the defendants (who are the Respondents in the EOT Application) on certain claims (the “Suit 1270 Judgment”) and was ordered to pay the Respondents US$3.45m plus interest (the “Judgment Debt”). As the Applicant did not pay the Judgment Debt, the Respondents sent several reminders, then issued a statutory demand (the “SD”), and finally filed B 2425 on 8 October 2021.

The Applicant then appealed against the decisions of the AR in SUM 3718, B 2425 and SUM 4306 by way of RA 343/2022, RA 344/2022 and RA 348/2022 (collectively the “Three RAs”).

Additionally, the Applicant filed SUM 268 on 1 February 2023, to adduce fresh evidence contained in his supporting affidavit of the same date (the “1/2/23 Affidavit”), for the hearings of the Three RAs. The Applicant stated that the fresh evidence relates to “how the hearing” of the applications before the AR “proceeded [on 1 December 2022] and how natural justice was breached” (the “Natural Justice Evidence”), and further contains evidence of how the Applicant is “a person of means and is not insolvent and why a bankruptcy order against him should never have been made” (the “Means Evidence”).

On 15 September 2023, the Judge dismissed SUM 268 along with the Three RAs. In doing so, the Judge stated in his written judgment in Sabyasachi Mukherjee and another v Pradeepto Kumar Biswas and another matter [2023] SGHC 262 (the “Judgment”) as follows: The Natural Justice Evidence was more akin to submissions which the Applicant was entitled to make but should not have been characterised as “evidence”. Hence, SUM 268 should not have been made at all on this matter, as there was no “evidence” to admit (see the Judgment at [32]). Even if the Applicant was seeking to adduce evidence, he had failed to satisfy the requirements of the test in Ladd v Marshall [1954] 1 WLR 1489 (“Ladd v Marshall”). Applying the principles in Anan Group (Singapore) Pte Ltd v VTB Bank (Public Joint Stock Co) [2019] 2 SLR 341 (“Anan Group”), the present case fell within the middle of the spectrum identified in Anan Group as the Three RAs involved a hearing of the merits but did not bear the characteristics of a trial. The criteria of non-availability should be applied strictly in the present case, as the applications before the AR were intended to finally dispose of the dispute between the parties (see the Judgment at [33]). Apart from the Natural Justice Evidence (assuming it constituted “evidence”), the other parts of the 1/2/23 Affidavit, such as the documents annexed thereto, had all been available prior to 1 December 2022, and the Applicant had not explained why he could not have obtained them with reasonable diligence for use at the hearing before the AR. Hence, these documents failed the non-availability requirement in Ladd v Marshall (see the Judgment at [34]). In any event, having perused the AR’s minute sheets in relation to the applications, natural justice was not breached at the hearing on 1 December 2022. Hence, the Natural Justice Evidence failed the second requirement in Ladd v Marshall as it was irrelevant and would not have had an important influence on the result of the Three RAs (see the Judgment at [35]). The Means Evidence was not relevant. If the Applicant had the means to satisfy the SD, it was inexplicable why he had not done so since it was issued in July 2019, or even paid the Judgment Debt when it first arose in December 2018 to prevent the issuance of the SD. Second, the basis of B 2425 was that the Applicant failed (either because he had no means or because he had intentionally refused) to satisfy the SD; in either scenario the basis of the bankruptcy order (made on the Applicant’s failure to satisfy the SD) was met (see the Judgment at [36]). Even if the Means Evidence was relevant, the Applicant had no means to satisfy the SD. Although he had asked the AR for six weeks to satisfy the SD on 1 December 2022, more than six months had since passed. If he had the means, the Applicant could have easily raised funds in this period to do so, but he did not. Thus, the Means Evidence also failed the second requirement in Ladd v Marshall (see the Judgment at [36]). Further, the Means Evidence provided in the 1/2/23 Affidavit was not supported by adequate documentary evidence, and thus failed to satisfy the third requirement in Ladd v Marshall as it was not apparently credible (see the Judgment at [37]–[38]).

The Judge also dismissed the Three RAs.

On 9 October 2023, the Judge dealt with costs of the matters and awarded costs on an indemnity basis to the Respondents.

Applicant’s attempt to file an application for permission to appeal against SUM 268

On 23 October 2023 (which was the last date for an application for permission to appeal to be filed against the Judge’s decision in SUM 268), the Applicant’s lawyers (“A/C”) attempted to file an application for permission to appeal (the “PTA Application”).

On 24 October 2023, A/C was informed that the filing was rejected for non-compliance with the requirements in the Supreme Court Practice Directions, because, among other things, the cover page on the submissions was not filed and the written submissions failed to include submissions on costs. The Applicant and A/C acknowledged that A/C had inadvertently omitted to include the cover page on the submissions at the time of filing. The Applicant, however, asserted that the draft written submissions did contain submissions on costs and that it was the Service Bureau which had “inadvertently missed out a page which contained the submissions on costs” when the Service Bureau did the filing on 23 October 2023.

On 25 October 2023, A/C attempted to re-file the PTA Application. On the same day, A/C was informed that the re-filing was rejected as it was filed out of time, and that security for costs should have been provided for each set of opposing party represented by a different set of lawyers. Based on the cover page, there were three respondents in the PTA Application, namely the Respondents of the EOT Application (represented by one set of lawyers) and the Official Assignee (the “OA”). In the affidavit supporting the EOT Application, the Applicant explained that the OA was not actually made a respondent to the PTA Application, but his name appeared on the cover page of the PTA Application because he was a named party in B 2425. Hence there was no reason to provide security for costs for the OA.

Thus, on 27 October 2023, A/C re-filed the PTA Application again, this time without naming the OA as a party/respondent to that application. However, on 30 October 2023, A/C was again informed that the filing had been rejected because it was out of time.

The Applicant thus filed the EOT Application on 31 October 2023.

The parties’ respective arguments in the Application

It is not disputed that the PTA Application was not filed in time.

The Applicant submits that the delay was de minimis and was due to human error. The Applicant further asserts that it was the Service Bureau’s error in omitting the costs submissions from the written submissions filed and that security for costs did not have to be provided for the OA who was not a party to SUM 268 (see [11]–[12] above). The Applicant submits that, moreover, the intended PTA Application is not hopeless and has good prospects of succeeding. Finally, the Applicant submits that there would be no prejudice to the Respondents if the extension of time is granted.

The Respondents submit that the EOT Application should be dismissed. Whilst the delay was not inordinately long and the Applicant had explained that it was caused by errors on the part of A/C and the Service Bureau in filing the intended PTA Application, such circumstances are, without more, insufficient to grant an extension of time. The Respondents further submit that the intended PTA Application is a hopeless one as the alleged errors identified by the Applicant pertaining to the Judge’s decision in SUM 268 are not errors of law and there is no question of public importance. The Applicant was essentially raising the same issue which had been raised and ventilated in past proceedings. Lastly, it has been almost five years since the Suit 1270 Judgment and the Applicant has not paid the outstanding costs orders made against him amounting to some $129,299.60. Yet, he seeks to put the Respondents to further costs of defending the EOT Application.

Our decision

Having considered the matter, we dismiss the EOT Application.

In arriving at our...