Transasia Private Capital Ltd v Todi Ashish

• Jurisdiction: Singapore
• Judge: Andre Maniam JC
• Judgment Date: 16 February 2021
• Year: 2021
• Docket Number: Suit No 909 of 2020 (Summons No 531 of 2021)
• Court: High Court (Singapore)

Transasia Private Capital Ltd (in its capacity as manager, for and on behalf of Asian Trade Finance Fund, a sub-fund of TA Asian Multi-Finance Fund)

and

Todi Ashish

[2021] SGHC 39

Andre Maniam JC

Suit No 909 of 2020 (Summons No 531 of 2021)

General Division of the High Court

Civil Procedure — Inherent powers — Defendant not entering appearance — Defendant resident overseas — Plaintiff entitled to summary judgment in default of appearance — Default judgment not enforceable in foreign jurisdiction where defendant's assets were known or reasonably believed to be located — Whether plaintiff would suffer serious injustice if it was not granted judgment on merits — Whether court had power to grant judgment on merits — Order 12 r 4(b) and O 13 r 1(1) Rules of Court (2014 Rev Ed)

Held, allowing the application:

(1) It was well settled that the court could consider a claim on the merits instead of entering judgment in default of appearance or entering judgment in default of defence: at [13].

(2) Where the defendant was absent, the plaintiff could adduce evidence in respect of his claim, and the court, after due consideration of the evidence, had full discretion whether to proceed with the case and hear the merits or give judgment without trial: at [15] and [16].

(3) Where there was material before a court to suggest that a judgment not given on the merits might well not be enforceable in foreign jurisdictions where the defendant was known or reasonably believed to have assets, there would be serious injustice to the plaintiff if the court refrained from exercising its inherent jurisdiction to consider the claim on its merits: at [18] and [19].

(4) A foreign judgment would not be considered conclusive under Indian law if it had not been given on the merits of the case. Transasia would suffer serious injustice if the court refrained from exercising its inherent jurisdiction in the circumstances presented: at [17] and [19].

(5) On the evidence, Transasia was entitled to judgment for the relief sought. Accordingly, Transasia was granted judgment on the merits for the sums claimed up to the date of the writ, contractual interest from that date until payment, and costs and disbursements (on an indemnity basis pursuant to the Guarantee) to be fixed or taxed if not agreed: at [20] to [24] and [26].

[Observation: A defendant who was in default of appearance could not be in a better position (in terms of avoiding summary judgment) than a defendant who entered appearance and filed a defence, but against whom summary judgment under O 14 of the ROC was then granted because there was no issue or question in dispute which ought to be tried, or other reason for trial. Moreover, the writ informed the defendant that if he failed to satisfy the claim or enter an appearance, the plaintiff might proceed with the action and enter judgment against him without further notice: at [25].]

Case(s) referred to

Berliner Bank AG v Karageorgis [1996] 1 Lloyd's Rep 426 (refd)

Govindan Asari Kesavan Asari v Sankaran Asari Balakrishnan Asari AIR 1958 Ker 203 (refd)

Habib Bank Ltd v Central Bank of Sudan [2007] 1 WLR 470 (refd)

Indian Overseas Bank v Svil Agro Pte Ltd [2014] 3 SLR 892 (folld)

International Woollen Mills v Standard Wool (UK) Ltd [2001] 2 LRI 765 (refd)

Panwell Investments Pte Ltd v Lau Ee Theow [1996] 3 SLR(R) 73; [1997] 1 SLR 469 (refd)

Seagate Technology International v Vikas Goel [2016] SGHC 12 (folld)

Singapore Telecommunications Ltd v APM Infotech Pte Ltd [2011] SGHC 147 (folld)

Trafigura Pte Ltd v Emirates General Petroleum Corp [2010] EWHC 87 (Comm) (refd)

Facts

Canwell Commerce Pte Ltd (“Canwell”) was a customer of the plaintiff (“Transasia”) and maintained an account with it. Transasia granted a revolving trade finance facility to Canwell on the terms of a facility agreement (“the Facility Agreement”). The defendant (“Ashish”) was a director and shareholder of Canwell, and signed a personal guarantee (“the Guarantee”) guaranteeing Canwell's obligations to Transasia under the Facility Agreement. Canwell drew down three loans under the Facility Agreement but failed to repay Transasia.

Transasia demanded that Canwell repay the principal sums due plus interest and fees. Transasia also demanded payment from Ashish as guarantor. Transasia then made a statutory demand against Ashish in June 2020. However, Transasia received no payment in response...