Pradeepto Kumar Biswas v Sabyasachi Mukherjee and another and another matter

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA
• Judgment Date: 11 April 2022
• Neutral Citation: [2022] SGCA 31
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summonses Nos 24 and 25 of 2021
• Published date: 16 April 2022
• Year: 2022
• Hearing Date: 04 March 2022
• Plaintiff Counsel: Lim Tean (Carson Law Chambers)
• Defendant Counsel: See Chern Yang and Cheng Hiu Lam Larisa (Drew & Napier LLC)
• Subject Matter: Civil Procedure,Jurisdiction,Original jurisdiction,Trial,Applications,Application for new trial,Abuse of Process,Henderson v Henderson doctrine
• Citation: [2022] SGCA 31

Andrew Phang Boon Leong JCA (delivering the grounds of decision of the court): Introduction

This court was faced with two applications. Both were filed in respect of matters that had concluded some two years prior. Quite aside from the questionable timing of the applications, of greater concern was their manifest lack of merit, and the abuse of process they entailed.

The first application, CA/OS 24/2021 (“OS 24”), was an application filed by Pradeepto Kumar Biswas (“Mr Biswas”). Mr Biswas asked that a new trial (otherwise referred to as a “retrial”) be ordered in respect of S 1270/2014 (“S 1270”). The respondents in OS 24, Sabyasachi Mukherjee (“Dr Mukherjee”) and his wife, Gouri Mukherjee (“Mrs Mukherjee”), were the successful plaintiffs in S 1270. Belinda Ang J (as she then was; the “Judge”) found in S 1270 that Mr Biswas was liable for breach of fiduciary duty due to his mishandling of the Mukherjees’ funds that were meant to be investments.

The other application, CA/OS 25/2021 (“OS 25”), was an application by Indian Ocean Group Pte Ltd (“IOGPL”). Mr Biswas is the sole shareholder and Managing Director of IOGPL. IOGPL sought a retrial in respect of HC/S 417/2017 (“S 417”). In S 417, the Judge dismissed IOGPL’s claim to recover a loan. Mrs Mukherjee is the respondent in OS 25; she was the successful defendant in S 417.

S 1270 and S 417 were heard together and culminated in a single written judgment, delivered by the Judge on 11 December 2018 (see Sabyasachi Mukherjee and another v Pradeepto Kumar Biswas and another suit [2018] SGHC 271 (the “Judgment”)). As noted, the Judge allowed the Mukherjees’ claims in S 1270 but dismissed IOGPL’s claim in S 417. Mr Biswas and IOGPL appealed vide CA/CA 2/2019 (“CA 2”) and CA/CA 3/2019 (“CA 3”), respectively. On 25 November 2019, we struck out CA 2 due to Mr Biswas’s breach of an unless order (see the decision of this court in Pradeepto Kumar Biswas v Sabyasachi Mukherjee and another [2019] SGCA 79). CA 3 was deemed withdrawn on 9 April 2019.

Almost two years after CA 2 was struck out, Mr Biswas and IOGPL filed the present applications, alleging a miscarriage of justice and seeking retrials pursuant to s 60A of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”). They argued, primarily, that the Mukherjees had committed perjury, and that the Judge had erred in finding that the Mukherjees’ investments were “shams or duds”.

On 4 March 2022, having heard parties’ submissions, we orally dismissed OS 24 and OS 25, on the basis that this court was without jurisdiction to hear the applications. We now provide our detailed grounds of decision.

Background

We briefly recount the facts and procedural history behind OS 24 and OS 25.

Mr Biswas was the Mukherjees’ investment advisor. He had introduced various investments to them, and helped the Mukherjees transact with the various companies. The Mukherjees sought to recover reasonable sums from Mr Biswas out of the US$4.5m which they had invested in the following products: Swajas Air Charters Limited (“Swajas”), US$500,000; Neodymium Holdings Ltd (“Neodymium”), US$250,000; Peak Commodities Inc (“Peak”), US$500,000; Pacatolus Growth Fund Class 6 (“Pacatolus”), US$2,250,000; Trade Sea International Pte Ltd (“Trade Sea”), US$200,000; Farmlands of Africa Inc. (“Farmlands”); US$300,000 and SEW Trident Global Pte Ltd (“SEW”), US$500,000 (out of which the Mukherjees sought to recover only US$250,000).

The Mukherjees alleged, and the Judge accepted, that Mr Biswas had used the aforementioned funds which were purportedly for investments in Neodymium, Peak, Pacatolus, Trade Sea, and SEW (collectively referred to as “the Investments”) for his own purposes which were never disclosed. The Judge dismissed the Mukherjees’ claim in respect of returns on the investments in Swajas and Farmlands (see the Judgment at [112] and [208], respectively).

In 2014, the Mukherjees brought S 1270 against Mr Biswas. Their allegation was that Mr Biswas had fraudulently procured investments from them, and “swindled them of US$3.45m through a complex labyrinth of financial instruments” (see the Judgment at [1]).

Subsequently, in 2017, IOGPL brought S 417 against Mrs Mukherjee to recover an alleged loan made in 2012 through an entity known as “IOEL”. IOGPL owned the single share in IOEL. In July 2012, IOEL made two remittances to the Mukherjees’ UOB account, amounting to US$1.6m. IOGPL’s case was that these were loans as Mrs Mukherjee needed funds for her business. Mrs Mukherjee refuted this, taking the position that the transfers of US$1.6m were the Mukherjees’ own funds and the transfers were made pursuant to their instructions (see the Judgment at [275]–[279]).

The two suits were heard together and disposed of collectively. On 11 December 2018, the Judge found Mr Biswas to be in breach of fiduciary duties owed to the Mukherjees. Mr Biswas was made liable to pay the Mukherjees US$3.45m for the Investments (see the Judgment at [273]). The Judge dismissed S 417, finding that the US$1.6m was indeed the Mukherjees’ funds which they had given to Mr Biswas to manage (see the Judgment at [274]–[294]). The Judge ordered that costs be taxed if not agreed. Parties were unable to agree on costs.

Mr Biswas and IOGPL appealed against the Judge’s decision in the Judgment vide CA 2 and CA 3, respectively. CA 2 was struck out on 25 November 2019 for Mr Biswas’s breach of an unless order. CA 3 was deemed withdrawn on 9 April 2019.

Events following the filing of the present applications Events in OS 24 and OS 25

OS 24 was filed on 6 October 2021, and OS 25 was filed the next day on 7 October 2021. On 1 December 2021, Mr Biswas filed an affidavit in OS 25 that alleged that his lawyers in S 417, M/s Niru & Co (“Niru”), had not disclosed certain evidence at trial. In other words, Mr Biswas made allegations against solicitors who were not involved in the present proceedings. The Mukherjees’ lawyers, Drew & Napier LLC (“D&N”), raised this issue via a letter to the court.

On 8 December 2021, which was the deadline for filing of written submissions, D&N filed written submissions for both OS 24 and OS 25 on behalf of the Mukherjees. The solicitors for Mr Biswas, Carson Law Chambers (“Carson”), filed written submissions for OS 24, but not OS 25. On the same day, D&N wrote to court addressing the issue of the allegations against Niru (as noted above). They stated that they had written to Carson about the issue but had received no response. Accordingly, they wrote to Niru directly. Niru had replied and refuted the allegations made (“Niru’s response”). D&N attached their correspondence with Niru and stated that Niru’s response should be attached to a supplementary affidavit to be filed by IOGPL. Later that same day, Carson wrote to court agreeing to file the supplementary affidavit with Niru’s response attached. They requested that Mr Biswas be given until 29 December 2021 to file the supplementary affidavit with Niru’s response attached, and that parties’ submissions (which were meant to be filed that day) be filed and exchanged one week after 29 December 2021.

In essence, Carson was asking for an extension of time to file its written submissions. On 9 December 2021, D&N objected to Carson’s request and insisted that Carson file its written submissions by 8 December 2021 (which had already elapsed). Subsequently, the court issued to parties the following directions: Carson was directed to file the supplementary affidavit, as well as its written submissions on the merits of OS 25, on 29 December 2021. D&N was to file responsive written submissions to only those portions of Carson’s submissions that dealt with the allegations against Niru. Such submissions were not to deal with the merits of OS 24 and OS 25. The deadline for these submissions was set at 7 January 2022. If D&N deemed that such submissions were not necessary, they were to inform the court by 31 December 2021. There were to be no further extensions of time granted if Carson failed to file written submissions by the stipulated deadline, and OS 24 and OS 25 would be decided based on the available material.

Both parties abided by the stipulated deadlines. However, Mr Biswas, in his supplementary affidavit, included further allegations beyond those pertaining to Niru.

Concurrent related proceedings

After OS 24 and OS 25 were filed, Mr Biswas filed AD/OS 53/2021 (“OS 53”) on 8 November 2021 and HC/S 921/2021 (“the New Suit”) on 10 November 2021, and IOGPL filed AD/OS 62/2021 (“OS 62”) on 8 December 2021.

OS 53 was an application for leave to appeal against the decision of the General Division of the High Court (“the High Court”) not to strike out a statutory demand served on Mr Biswas, such statutory demand being premised on the judgment debt arising from S 1270. Mr Biswas’s allegations in OS 53 by and large mirrored those in the present OSes. OS 53 was being held in abeyance pending disposal of the present OSes.

The New Suit, filed against the Mukherjees, appeared to be a claim in unjust enrichment. The allegations in the New Suit by and large mirrored those in OS 24 and OS 25, namely, that the Mukherjees retained possession of valuable investments/assets.

OS 62 was IOGPL’s application for leave to appeal against Andre Maniam J’s decision in HC/RA 199/2021. Maniam J had dismissed IOGPL’s appeal against an Assistant Registrar’s decision to grant Mrs Mukherjee an extension of time for taxation of the costs of S 417. The matters in OS 62 were distinct from those in the present applications. OS 62 was dismissed by the Appellate Division of the High Court (“the AD”) on 13 January 2022.

Parties’ arguments

Mr Biswas and IOGPL alleged that the Mukherjees had committed perjury in S 1270 and S 417 by failing to disclose their (the Mukherjees’) possession of valuable investments. This, Mr Biswas alleged, showed that the...