Pradeepto Kumar Biswas v Sabyasachi Mukherjee

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JCA,Steven Chong JCA,Quentin Loh JAD
• Judgment Date: 11 April 2022
• Court: Court of Appeal (Singapore)
• Docket Number: Originating Summonses Nos 24 and 25 of 2021

Pradeepto Kumar Biswas

and

Sabyasachi Mukherjee and another and another matter

[2022] SGCA 31

Andrew Phang Boon Leong JCA, Steven Chong JCA and Quentin Loh JAD

Originating Summonses Nos 24 and 25 of 2021

Court of Appeal

Abuse of Process — Henderson v Henderson doctrine — Unsuccessful parties to trial applying for new trial based on allegedly “new” evidence — Whether applications were abuse of process

Civil Procedure — Jurisdiction — Original jurisdiction — Unsuccessful parties to trial seeking new trial under s 60A Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) without pending appeal — Whether court could order new trial without pending appeal — Section 60A Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Civil Procedure — Trial — Applications — Application for new trial — Unsuccessful parties to trial alleging that new evidence showed miscarriage of justice — Whether new evidence showed miscarriage of justice — Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed)

Held, dismissing the applications:

Jurisdiction

(1) Section 60A of the SCJA was a power conferring provision, which was a separate matter from jurisdiction. Jurisdiction was the court's authority to hear and determine disputes, whilst “powers” were the court's capacity to give effect to its determination by making or granting the orders or reliefs sought by the parties. In other words, jurisdiction had to be established before a court could consider what powers it possessed: at [28] and [29].

(2) The power to grant a retrial under s 60A of the SCJA could only be exercised pursuant to the court's appellate jurisdiction, ie, in the context of an appeal or an application ancillary to a pending appeal. It could not be awarded in a standalone originating summons. This was clear from its positioning within the SCJA, as well as its plain language. This position was also corroborated by case law: at [30] to [33].

(3) The applications were made when the court was not seised of appellate jurisdiction and thus the court had no power to order a retrial. The applications were dismissed on this basis: at [34] and [35].

Merits of the applications

(4) A retrial would only be ordered where it would serve the interests of justice; for example, where there was irrefutable proof that material evidence relied upon by the judge was false, or where there had been a discovery of fresh evidence. In the latter situation, the principles in Ladd v Marshall[1954] 1 WLR 1489 (“Ladd v Marshall”) would apply. However, these grounds alone might not necessitate a retrial if it could be shown that the result was correct in any event: at [36] to [38].

(5) The evidence relied upon by Mr Biswas in seeking a retrial of OS 24 did not support his argument. The evidence did not show that the Investments were real or had value: at [49] and [52].

(6) The evidence relied upon by IOGPL in seeking a retrial of OS 25 did not show that it had locus standi, nor did it show that a loan was given to Mrs Mukherjee. Furthermore, some of the evidence relied upon was readily available at trial: at [62], [63] and [68]–[73].

Abuse of process

(7) OS 24 was a “classic” abuse of process as Mr Biswas had improperly invoked the court's processes. OS 24 was one of four pending matters before the Supreme Court in which the allegations made and relief sought were identical. This was indicative of a desire to oppress the Mukherjees with heavy litigation: at [75], [78] to [80], [82] and [84].

(8) OS 25 was an abuse of process under the extended doctrine of res judicata. The key documents raised in OS 25 could have been raised at trial, ie, the issues raised by IOGPL could have and ought to have been ventilated before the judge. This was a paradigm breach of the rule in Henderson v Henderson(1843) 3 Hare 100; [1843] 67 ER 313: at [86] to [88].

Costs

(9) Indemnity costs of S$20,000 were awarded to the Mukherjees, as the applicants' actions fell into all four categories of objectionable conduct warranting costs as set out in Airtrust (Hong Kong) Ltd v PH Hydraulics & Engineering Pte Ltd[2016] 5 SLR 103. The only reason the quantum of costs ordered was not higher was due to the relatively simple nature of the applications, and counsel's reasonable conduct of his case at the oral hearing: at [95] and [96].

[Observation: IOGPL had made a serious allegation against lawyers who were not involved in OS 24 and OS 25 – this called for a proper factual inquiry and it was inappropriate to deal with such allegations via affidavit alone: at [60].]

Furthermore, whether IOGPL's previous lawyers had failed to adduce the SPA at trial was irrelevant – the proper course of action would be to commence a suit for professional negligence against the lawyers: at [61].

The court reiterated that lawyers should not embolden their clients to file impulsive and unmeritorious applications at whim, and had to fulfil their roles, as members of the legal profession as well as officers of the court, in ensuring the smooth and efficient administration of justice: at [96].]

Case(s) referred to

Airtrust (Hong Kong) Ltd v PH Hydraulics & Engineering Pte Ltd [2016] 5 SLR 103 (folld)

Au Wai Pang v AG [2014] 3 SLR 357 (refd)

DyStar Global Holdings (Singapore) Pte Ltd v Kiri Industries Ltd [2022] 3 SLR 1 (refd)

Henderson v Henderson (1843) 3 Hare 100; [1843] 67 ER 313 (folld)

Imran bin Mohd Arip v PP [2021] 2 SLR 1198 (refd)

Ladd v Marshall [1954] 1 WLR 1489 (folld)

Mah Kiat Seng v PP [2021] SGCA 79 (refd)

Miya Manik v PP [2021] 2 SLR 1169 (refd)

Muhd Munir v Noor Hidah [1990] 2 SLR(R) 348; [1990] SLR 999 (folld)

Naseer Ahmad Akhtar v Suresh Agarwal [2015] 5 SLR 1032 (refd)

Ong Jane Rebecca v Lim Lie Hoa [2021] 2 SLR 584 (refd)

Pradeepto Kumar Biswas v Sabyasachi Mukherjee [2019] SGCA 79 (refd)

Sabyasachi Mukherjee and another v Pradeepto Kumar Biswas [2018] SGHC 271 (refd)

SIC College of Business and Technology Pte Ltd v Yeo Poh Siah [2016] 2 SLR 118 (refd)

Su Sh-Hsyu v Wee Yue Chew [2007] 3 SLR(R) 673; [2007] 3 SLR 673 (refd)

Susilawati v American Express Bank Ltd [2009] 2 SLR(R) 737; [2009] 2 SLR 737 (refd)

Facts

The applicants in CA/OS 24/2021 (“OS 24”) and CA/OS 25/2021 (“OS 25”) respectively were Pradeepto Kumar Biswas (“Mr Biswas”) and his company, Indian Ocean Group Pte Ltd (“IOGPL”). Sabyasachi Mukherjee and his wife, Gouri Mukherjee (“Mrs Mukherjee”) (collectively, “the Mukherjees”), brought HC/S 1270/2014 (“Suit 1270”) against Mr Biswas for breach of fiduciary duties in relation to his handling of their funds that were meant to be investments (“the Investments”). IOGPL sued Mrs Mukherjee in HC/S 417/2017 (“Suit 417”) to recover an alleged loan from her. Both suits were heard together and culminated in a single written judgment delivered by a High Court judge (“the Judge”).

The Mukherjees were successful in Suit 1270, as the Judge found that Mr Biswas had breached his fiduciary duties in the mishandling of the Investments. The Judge also dismissed Suit 417, finding that the “loan” was actually Mrs Mukherjee's own money, and that in any event, IOGPL did not have locus standi to sue Mrs Mukherjee. The applicants appealed, but their appeals were either struck out or deemed withdrawn by 2019.

Two years later, the applicants filed OS 24 and OS 25, alleging that the Mukherjees had committed “perjury” during the trial and thus there had been a miscarriage of justice. They produced what they alleged to be new evidence that showed this. On the basis of this allegation, they sought a retrial of Suit 1270 and Suit 417 under s 60A of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (the “SCJA”). Importantly, along with OS 24 and OS 25, the applicants had also filed AD/OS 53/2021, and HC/S 921/2021. The allegations in these separate actions were also that the Mukherjees had committed perjury in the course of Suit 1270 and Suit 417.

With regard to OS 24, Mr Biswas argued that he had evidence showing that the Mukherjees had admitted that the Investments were real and had value and thus the Judge was wrong in Suit 1270. With regard to OS 25, IOGPL argued that there was evidence showing that IOGPL had locus standi to sue Mrs Mukherjee, and that the money was a loan. One of these pieces of evidence was a share-purchase agreement (the “SPA”) which IOGPL alleged had been given to its previous solicitors but was not produced at trial.

The Mukherjees resisted the applications, arguing that the court was without jurisdiction to order a retrial and that in any event, the grounds for a retrial were not established. They further argued that the applications were an abuse of process.

Legislation referred to

Professional Conduct (Legal Profession) Rules 2015 r 29

Rules of Court (2006 Rev Ed) O 35 r 2(1)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 60A (consd); ss 49, 53, 53(2)(d)

Lim Tean (Carson Law Chambers) for the applicants in Originating Summonses Nos 24 and 25 of 2021;

See Chern Yang and Cheng Hiu Lam Larisa (Drew & Napier LLC) for the respondents in Originating Summonses Nos 24 and 25 of 2021.

11 April 2022

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

Introduction

1 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.

2 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”) (collectively, the “Mukherjees”), 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...