Ramesh Vangal v Indian Overseas Bank

• Jurisdiction: Singapore
• Judge: Woo Bih Li JAD,Debbie Ong Siew Ling JAD,Valerie Thean J
• Judgment Date: 10 July 2023
• Docket Number: Civil Appeal No 8 of 2023 and Originating Application No 6 of 2023
• Court: High Court Appellate Division (Singapore)

Ramesh Vangal

and

Indian Overseas Bank and another matter

[2023] SGHC(A) 25

Woo Bih Li JAD, Debbie Ong Siew Ling JAD and Valerie Thean J

Civil Appeal No 8 of 2023 and Originating Application No 6 of 2023

Appellate Division of the High Court

Civil Procedure — Foreign judgments — Registration — Judgment creditor seeking to set aside registered foreign judgment or adjourn setting-aside application — Foreign appeal pending for almost five years — Initial application to stay execution of foreign judgment in foreign jurisdiction rejected — Judgment creditor filing renewed application to stay execution in foreign jurisdiction — Judgment creditor not making any offer of security — Judgment creditor not adducing evidence of assets and apparent inability to meet foreign judgment — Whether judge erred in not setting aside registered foreign judgment or adjourning setting-aside application — Section 6(1) Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed)

Held, dismissing the appeal and application:

Permission to appeal in OA 6

(1) Drawing the threads from the foreign authorities and also considering the factors applied by the Judge below, the following principles were derived on how a Singapore court should exercise its discretion under s 6(1) of the REFJA: (a) the court had to have regard to the interests of the judgment creditor in the fruits of its success, balanced against the interests of the judgment debtor that the foreign appeal was not rendered nugatory; (b) the court should examine whether there would be excessive delays occasioned to the judgment creditor in enforcement if an adjournment were granted; (c) the court should factor in any offer by the judgment debtor to provide security; (d) the court should consider how readily the judgment debtor would be able to recover the judgment sums paid over if the registered judgment was enforced and the foreign appeal then subsequently allowed; (e) the court should be satisfied, in relation to the foreign appeal, that it was a bona fide one that was or would be prosecuted with due diligence; and (f) it was inappropriate for the Singapore court to assess the merits of the appeal pending in the foreign court: at [44].

(2) It was incorrect for Mr Vangal to assume that the Judge should have granted an adjournment of SUM 2662 simply because the Second HK Stay Application was pending, and that the failure to grant the adjournment amounted to prejudging the Second HK Stay Application. Mr Vangal conveniently omitted to highlight that the First HK Stay Application was already dismissed in Hong Kong, and that this should be given weight in the exercise of discretion: at [48] and [49].

(3) The Judge had already permitted one prior adjournment of SUM 2662 pending the outcome of the First HK Stay Application. There was no good reason for the Judge to grant another adjournment pending the Second HK Stay Application when no new reasons were provided beyond the mere existence of the renewed application, and especially when Mr Vangal had failed to give any assurance to the Judge that that application would be heard soon: at [51].

(4) Mr Vangal failed to show that there was an error of law or an exceptional error of fact. The Judge correctly exercised his discretion not to adjourn as: (a) Mr Vangal made no offer of security despite the Judge mentioning this as a factor to be considered in any fresh application for a further adjournment for SUM 2662; (b) Mr Vangal would have no difficulty in recovering any sum paid over to IOB as IOB was a well-established bank with a presence in Hong Kong; and (c) there would be significant delays occasioned to IOB in enforcement as the HK Appeal had been outstanding for a few years and the Second HK Stay Application might not be heard for quite some time: at [52].

(5) There was no question of importance upon which further argument and a decision of a higher tribunal would be to the public advantage. The question framed by Mr Vangal was incorrect as the Judge considered other factors beyond the uncertainty surrounding when the Hong Kong proceedings would be resolved or that these would take a longer time than in Singapore to be heard: at [55] and [56].

The appeal in AD 8

(6) IOB's omission to adduce evidence that the HK Judgment was enforceable in Hong Kong at the time of applying for registration of the HK Judgment in Singapore under O 67 r 3(4) of the ROC 2014, was a curable non-compliance. There was nothing to suggest that there was bad faith on the part of IOB in making this omission and this was likely an inadvertent mistake. IOB would not have intentionally made an error which was against its own interest. There was no utility to be gained in setting aside ORC 5731 only to require IOB to apply once more to register the HK Judgment, especially when both sides did not dispute its enforceability: at [62]–[66].

(7) Concerning IOB's duty to make full and frank disclosure, the failure to disclose that Mr Vangal had successfully set aside a statutory demand issued by IOB was not material. The outcome of the setting aside of the statutory demand did not impugn upon the validity of the underlying HK Judgment, and neither was it the case that the HK Judgment could not be registered in future. It was not as if IOB was trying to hide an adverse fact prejudicial to its application. The failure to disclose IOB's delay in registering the HK Judgment was also not material as this would have been plain and apparent: at [67] to [69].

(8) On the substantive issue of whether there was any basis to challenge the Judge's exercise of discretion under s 6(1) of the REFJA to dismiss SUM 2662, Mr Vangal's assertion that the Judge implicitly criticised the Hong Kong court system on the time it took for matters to be heard was rejected. In deciding whether to adjourn the setting-aside application or to set aside the registration of a foreign judgment, the court was entitled to consider the time required for proceedings in a foreign jurisdiction to be determined, and hence, this did not constitute an unwarranted criticism of foreign proceedings: at [70] to [72].

(9) Contrary to Mr Vangal's arguments, the Judge did not make an assessment of the merits of the HK Appeal that was pending and did not consider the strength of Mr Vangal's appeal in making his decision. Even if the Judge had misread Mr Vangal's affidavit on a certain point, that was of no real consequence as it was a fleeting remark and did not suggest that the Judge had any negative perception of the merits of the HK Appeal: at [73] and [74].

(10) The Judge was justified in taking into account the absence of any offer of security by Mr Vangal in denying a further adjournment and also in refusing to set aside ORC 5731. There would be prejudice occasioned to IOB if a further adjournment was granted by the court. On the other hand, Mr Vangal would in all likelihood have no difficulty in recovering from IOB any sum paid over in the event of the HK Appeal succeeding as IOB was a major Indian nationalised bank with branches in Hong Kong: at [77] and [78].

(11) While it was relevant for the court to consider whether the judgment debtor may suffer irremediable harm if no adjournment was granted, Mr Vangal had not demonstrated what prejudice he would face other than the usual consequences of having to face enforcement. The burden of proof was on Mr Vangal to show evidence of his financial means and impecuniosity. However, Mr Vangal chose not to adduce any evidence to substantiate his assertion that he would suffer irreparable financial ruin – both in the proceedings in Hong Kong and in Singapore: at [80].

(12) Even if Mr Vangal had given full disclosure of his assets and means to establish that he was unable to pay the entire sum due and payable under the HK Judgment, it would still be for him to suggest security for part of the sum in the circumstances. He did not do this: at [81].

Case(s) referred to

Ayaz Ahmed v Mustaq Ahmad [2022] SGHC 161 (refd)

Hong Pian Tee v Les Placements Germain Gauthier Inc [2002] 1 SLR(R) 515; [2002] 2 SLR 82 (refd)

Hung Vuong-2, The [2000] 2 SLR(R) 11; [2001] 3 SLR 146 (refd)

Hunt v BP Exploration Co (Libya) Ltd [1980] 1 NZLR 104 (refd)

Indian Overseas Bank v Seabulk Inc [2023] SGHC 42 (refd)

Lee Kuan Yew v Tang Liang Hong [1997] 2 SLR(R) 862; [1997] 3 SLR 489 (refd)

Madihill Development Sdn Bhd v Sinesinga Sdn Bhd [2012] 1 SLR 169 (refd)

Rappo, Tania v Accent Delight International Ltd [2017] 2 SLR 265 (refd)

Rodeo Power Pte Ltd v Tong Seak Kan [2022] SGHC(A) 16 (refd)

Shiamas International Ltd, Re [2014] HKCFI 1601 (refd)

State Bank of India v Mallya [2018] 1 WLR 3865 (refd)

Vasiliy Golovnin, The [2008] 4 SLR(R) 994; [2008] 4 SLR 994 (refd)

Facts

In the underlying case, Indian Overseas Bank (“IOB”) granted credit facilities to a company guaranteed by two individuals, including Mr Ramesh Vangal (“Mr Vangal”). In January 2018, the Hong Kong Court of First Instance (“HKCFI”) found Mr Vangal and other defendants jointly and severally liable to IOB for the sum of about CAD$9.6m and about US$137,000 with interest on those sums (the “HK Judgment”). The defendants, including Mr Vangal, filed an appeal to the Hong Kong Court of Appeal in February 2018 (the “HK Appeal”).

In August 2019, IOB filed an ex parte application to register the HK Judgment in Singapore under the Reciprocal Enforcement of Foreign Judgments Act (Cap 265, 2001 Rev Ed) (“REFJA”). The registration order was successfully obtained by way of HC/ORC 5731/2019 (“ORC 5731”) in August 2019. Thereafter, IOB attempted to serve the Notice of Registration on Mr Vangal in May 2021.

In May 2021, Mr Vangal filed an application in the HKCFI to stay the execution of the HK Judgment (the “First HK Stay Application”) pending the HK Appeal being determined. In June 2021, Mr Vangal then made an application in Singapore to set aside ORC 5731 in HC/SUM 2662/2021...