SHAH NISAR v. SATWANI KIRAN KAMLESH AND OTHERS

HCA 3142/2016

[2019] HKCFI 810

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3142 OF 2016

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J U D G M E N T

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1.  This is the trial of the proceedings commenced by Mr Shah Nisar (the “Plaintiff”) against three defendants. The 1^stdefendant is an individual, Mr Satwani Kiran Kamlesh (the “1^stDefendant”) and two companies, namely, Pearl China Limited (the “2^nd Defendant”) and Diyaash Hong Kong Limited (the “3^rdDefendant”).

2.  The Plaintiff’s claim is succinctly set out in a four-page amended Statement of Claim.  As can be seen from the said amended Statement of Claim, the Plaintiff’s pleaded case is as follows.

3.  The Plaintiff says that he lent monies to the 1^stDefendant. The claim against the 2^nd and 3^rd Defendants is only pleaded as an alternative, namely as recipients of monies which were wrongly transferred.

4.  At the material time, the 1^st Defendant told the Plaintiff that he was a businessman carrying on trading business by purchasing various luxury items in European countries and then selling them at a profit in Hong Kong.  He claimed that he did not have sufficient capital and therefore sought a loanfrom the Plaintiff.  In exchange, he would offer the Plaintiff 7% of the profit he made from the sale of such luxury items and would repay all incidental expenses including those related to hotel accommodation, meals, and travel.

5.  The Plaintiff accepted the offer and went to Europe with the 1^st Defendant, and all such items bought were handed to the 1^stDefendant after purchase.  Between the period from 28 January 2016 to 13 June 2016, the Plaintiff, at the request made orally by the 1^stDefendant, agreed to lend monies.  These monies would either come from the Plaintiff’s own resources or he would have to borrow from a third party, in which case he would also charge that amount of interest which the Plaintiff himself would have to pay to that third party.  These total HK$935,909 and €27,293:

Loan Amounts

Item	Date	Amount (HK$)	Amount (€)
(a)	28 January 2016	100,000
(b)	1 February 2016	97,000
(c)	2 February 2016	138,000
(d)	6 February 2016		23,161
(e)	4 March 2016	165,000
(f)	23 April 2016	9,500
(g)	13 May 2016	100,000
(h)	13 May 2016	77,520
(i)	22 May 2016		4,132
(j)	10 June 2016	100,000
(k)	9 February 2016 – 13 June 2016 (credit card payment)	105,889
(l)	Interest paid for HK$300,000 borrowed for and on behalf of the 1st Defendant	43,000
Total :		HK$ 935,909	€ 27,293

6.  The Plaintiff claims that for items (a), (b), (c), and (j), these weregiven in cash by the Plaintiff to the 1^stDefendant in Hong Kong face-to-face.  For items (d) and (i), these were given in cash to the 1^stDefendant in Dubai and in France. 

7.  For item (e), these were monies which were transferred from the Plaintiff to an account belonging to the 2^nd Defendant at the request of the 1^stDefendant. For item (f), these were monies paid into the 3^rdDefendant’s account at the request of the 1^stDefendant. Items (g) and (h) were monies paid into the 2^ndDefendant’s account at the request of the 1^stDefendant.

8.  Item (k) represented incidental expenses of trips which the 1^st Defendant had agreed to pay the Plaintiff, as mentioned above.

9.  A pre-action letter was sent by the Plaintiff, through his then solicitors, on 19 September 2016 demanding repayment of the said loans.  Nopayment was forthcoming and therefore these proceedings were commenced on 1 December 2016.  In gist, the Plaintiff’s primary case is for repayment of the loans against the 1^stDefendant.  Only as an alternative are certain amounts sought against the 2^nd and 3^rd Defendants for the amounts they had received in the way described above.

10.  The 1^st and 2^nd Defendants filed their Defence on 29 March 2017.  The Defence is short and without any particulars.  Insofar as items (a), (b), (e), (f), (g) is concerned, the Defendants aver that those sums have been repaid.  Although this is not made clear, presumably the Defendants accept that a loan was made but their case is that it was repaid.

11.  Insofar as items (c), (d), (i), (j), (k), (l) are concerned, the Defendants curiously plead that, “The Defendants are not aware of the existence of such loan”.  For item (l), more specifically, the Defendants pleaded that, “The Defendants are not aware of any agreement to pay interest under the above purported loans or payments”.

12.  It is worth mentioning that in answer to the Plaintiff’s request for further particulars of the Defence, the Defendants had provided certain particulars as to the time and method of the alleged repayments.  It was alleged that the repayments were made either in cash, or by way of cash cheques. 

13.  I should mention that there was also a Counterclaim made against the Plaintiff for the sum of HK$74,141 and €26,030.  For reasons which I will explain in a moment, the Counterclaim is no longer something that I need to deal with.

14.  By April 2018, the 1^st and 2^nd Defendants’ solicitors had ceased to act and the 1^st and 2^nd Defendants had stopped participating in these proceedings.  On 12 April 2018, by an order made by Master Ho:

“ As the 1^stDefendant has failed to appear at the Case Management Conference today, pursuant to Order 25, Rule 1C(2), the 1^stDefendant’s Counterclaim in this action is provisionally struck out and the costs to defend the Counterclaim be to the Plaintiff in any event.”

15.  On 29 October 2018, Master Ho ordered as follows:

“ Unless within 14 days after the service of this Order to all the Defendants, the Defendants do exchange signed witness statements of facts with the Plaintiff, the Defendants be debarred from adducing witness evidence at trial. The Plaintiff shall thereafter serve the witness statements on all the Defendants forthwith.”

16.  The Plaintiff filed his witness statement on 31 August 2018 substantiating his claim, together with supporting documents.  The Defendants did not file any witness statements or any documents substantiating their pleaded defence.

17.  On 16 January 2019, Master Ho granted leave to the Plaintiff to set down this case with a one day trial estimate before a Judge alone in the running list.  Today is the trial of this action.

18.  Before me, Mr Shah confirmed the truthfulness and accuracy of the contents of his witness statement. The Defendants were unrepresented, but this, of course, does not bar the court from proceeding and having regard to all the circumstances, I consider it appropriate to trial the case in the absence of the defendants.

19.  Given the absence of the defendants, I considered it appropriate to test the Plaintiff on various parts of his evidence and to explain what the Defendants say, in fact, happened.  In particular, I asked him to take me through various credit card statements to explain how item (k) was made up of.

20.  I am satisfied, on the evidence before me and on the balance ofprobabilities that the Plaintiff has made out his case against the 1^stDefendant.  The Plaintiff’s evidence is consistent with some of the contemporaneous documents produced and the Defendants, in particular the 1^st Defendant, haschosen not to give evidence or participate in these proceedings.  In particular, the 1^stDefendant has produced no documentary evidence to either show repayments or that the other items claimed were not properly advanced.

21.  I will not refer to all of the contemporaneous documentary evidence, save that I will highlight one item.  The Plaintiff has produced many pages of WhatsApp communications which he had with the 1^st Defendant.  On 4 September 2016, the Plaintiff had this to say to the 1^st Defendant: “Bro it’s 940k.  I hope that you realise the assistance I provided you through my this loan (sic).”

22.  It is very telling that the 1^st Defendant did not deny either the fact of assistance or the amount of $940,000.  In subsequent communicationsvia WhatsApp, although these can be somewhat confusing, it is clear that thePlaintiff was seeking repayment from the 1^st Defendant and the 1^st Defendant did not appear to deny the Plaintiff’s entitlement.

23.  I note that the “940k” referred to in the WhatsApp is almost similar in amount with the HK$935,909 sought in the Statement of Claim.

24.  For these reasons, I enter judgment against the 1^st defendant in the sum of HK$935,909, together with the sum of €27,293. 

25.  I will also award interest from the date of the writ to the date of judgment at the rate of prime plus 1%. 

26.  Since the Plaintiff has succeeded in his main claim, i.e., against the 1^stDefendant, I will not enter judgment against the 2^nd or 3^rd Defendants.

27.  The Plaintiff will also be entitled to costs against the 1^st Defendant, to be taxed if not agreed, including all reserved costs.

28.  Insofar as the costs between the Plaintiff and the 2^nd and 3^rd Defendants are concerned, save as to those costs orders which have already been made, I make no order as to costs.