Bishopgate Capital Limited v Boston Asia Capital LLC (WA-22NCvC-514-08/2018)

BOSTON ASIA CAPITAL LLC

MEHAMOOD HOSEIN (PASPOT USA: 561425418 & 561425407) …DEFENDAN-DEFENDAN

The Plaintiff’s claim is for the return of the sum of money remitted to the Plaintiff from a 3rd party deposited in the 1st Defendant’s Bank account at the behest of the 2nd Defendant and now being wrongfully withheld by the Defendants. 14/03/2025 16:21:34

There is a chequered history to the proceeding in this case which arose as a result of a number of appeals to the Court of Appeal which resulted in remittance back from the Court of Appeal. The Court do not intend to elaborate the details here.

Suffice to state that the present remittance to this Court from the Court of Appeal is to continue with the Trial by hearing the evidence of the Defendants which the Court had earlier expunged from record.

This Court had barred the 2nd Defendant from testifying on behalf of the Defendants at the trial as the Defendants had committed contempt of a Court of Appeal order directing the Defendants to deposit a sum of money to Court which they had failed to do.

This Court resumed the trial as directed by the Court of Appeal and considered the entire evidence of both the Plaintiff and the Defendant before allowing the Plaintiff’s claim. The brief facts

Shorn of all its technicalities and details the dispute in this case revolves around the remittance of money by a company called Calfin Capital Private Limited (“Calfin”) to the 1st Defendant’s Bank account.

Whilst the 2nd Defendant was still its Director the Plaintiff a registered limited liability company had entered into a Promissory S/N /KDxjnqwyUqeZSIHzs8v/A Note Agreement having a face value of USD 10 million with companies called Calfin Capital Private Limited (“Calfin”) and Gouetephone Tecnology Private Limited (“GTPL”) on 12/11/2017. This promissory note was insured by Arcipelago Insurance Limited (“AIL”) with a premium of USD 150,000.

On 4/12/2017 the Plaintiff whilst the 2nd Defendant was still a Director of the Plaintiff entered into an agreement with Calfin to provide a secured loan of USD 5.25 million on a condition that the owner of Calfin issue a personal cheque which was to be kept in custody of AIL.

The 2nd Defendant resigned as a Director of the Plaintiff on 8/12/2017 whereby Yatin Anantrai Trivedi was appointed on 22/2/2017 additional Director together with Samer an existing Director.

10.

On 30/3/2018 the Plaintiff instructed AIL to remit the sum of USD 25 million (“the said money”) kept by them on behalf of Calfin to the Plaintiff’s Director Samer. However, since the Plaintiff had no bank account the Plaintiff agreed with the suggestion of the 2nd Defendant that the money to be parked temporarily in trust, in the account of his company, the 1st Defendant.

The dispute in this case leading to the filing of this claim in Court arose after the money was transferred by Calfin to the 1st Defendant’s account and Defendants failed to release the said S/N /KDxjnqwyUqeZSIHzs8v/A sum of money to the Plaintiff upon the repeated instructions and request of the Plaintiff. The issue

There is a competing claim to the money remitted whereby the Plaintiff claims the ownership of the money as it was a repayment of the loan given to Calfin. The Defendants on the other hand contend that the money is the payment for the service rendered by the 2nd Defendant under a joint venture agreement, by enabling the Plaintiff’s commercial transaction with Calfin.

The Court in this case determined that the competing claims by the parties can be resolved by determining the purpose the said of money was remitted by AIL and deposited into the account of the 1st Defendant. The purpose of the remittance

In order to determine the purpose for the remittance of the money the sequence of events that transpired in this case must be looked at. The sequence leading to the remittance of the said money is reflected in the documents adduced in this case. The documents adduced are listed below following the sequence of events:

The first sequence of event leading to the remittance the sum of money from AIL is a letter dated 30/3/2018 send by the Plaintiff to

The letter informed AIL that Calfin had breached the agreement with the Plaintiff and therefore the Plaintiff would like to exercise its right under the contract to cash the security which was the personal cheque issued by Mr Menon dated 31/3/2018 in favor Samer Moulen Yousef for the sum of USD 5.25 million. Plaintiff’s company Resolution

The next document is the Plaintiff’s company Resolution dated 11/4/2018 issued by its sole member Ian Lim Teck Soon resolving that Mr Yatin Trivedi a Director is given an authorization to instruct Calfin to transfer the amount of USD 5.25 million to the 1st Defendant to its given Bank account in USA. Further it is stated that the money is to be held by the 1st Defendant on trust for the Plaintiff.

The Defendants in this case disputed the validity of this Resolution as it was passed by Ian Lim (SP1) without discussions with other Directors of the Plaintiff and was self-serving.

It is clear that at the point of Resolution the 2nd Defendant was no longer a Director of the Plaintiff and could not have known about S/N /KDxjnqwyUqeZSIHzs8v/A the events leading to the Resolution. Further the person authorised was himself a Director of the Plaintiff.

The Court ruled that the contention of the Defendants against the validity of the Resolution is baseless. The Court accepts this document as a valid documentary evidence.

In pursuance of the Resolution above and the authorisation Mr. Trivedi wrote on the same day 11/4/2018 to Calfin to direct them that as the repayment of the loan given to Calfin, to transfer the said sum of money to the 1st Defendant’s Bank of which the details were given

In pursuance of the letter to Calfin dated 11/4/2018, two Remittance Advises (“RA”) were issued. The 1st RA is dated 16/4/2018 is in the sum of remittance is USD 2.648 million in which the beneficiary is the 1st Defendant.

The 2nd RA dated 17/4/2018 is for a sum of USD 2.602 million again the beneficiary being the 1St Defendant. The purpose of payment in the 1st RA is stated as “Goods Bought “and the 2nd RA is for “Goods Purchased”.

The Defendant argued that the RA were not issued as claimed by the Plaintiff as repayment of the loan by Calfin but were for goods sold and delivered as stated in the RA.

The Court feels that the same argument can be used against the Defendants as there is no evidence to suggest that the Defendants had any relationship with Calfin on purchase of any goods for such a payment to be made.

The Court rules that the purpose stated on the RA bears no significance in light of the sequence of events as reflected in the above documents. The Court dismissed this argument of the Defendants. Court’s findings

Based on the sequence of events as reflected in the documents above the Court is satisfied that the purpose the said money was remitted to the Defendants was the repayment by Calfin of the loan taken from the Plaintiff.

The Court brushed aside the contention of the Defendant that the remittance was for payment of service rendered to the Plaintiff. This is because the sequence of events leading to the remittance to the Defendants clearly does not support this contention.

The Defendant have not adduced a single document to prove that the transfer of the money was for services rendered by the 2nd Defendant. It is clear under section 103 of the Evidence Act that the burden of proving a particular fact lie with the person alleging the fact.

Section 103 of the Evidence Act 1950 stipulates as follows: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

A prosecutes B for theft and wishes the court to believe that B admitted the theft to C. A must prove the admission.

B wishes the court to believe that at the time in question he was elsewhere. He must prove it.

Further if the Defendants were actually aggrieved by the fraud and conspiracy perpetrated by the Plaintiff in not paying for the services rendered by the 2nd Defendant as stated in their counter claim, which are serious allegations, the Defendants should have taken immediate action rather than wait until being sued by the Plaintiff and merely counter claiming.

This delayed conduct of the Defendants show that the entire counter claim is a sham and afterthought. Conduct of a party in a civil suit is relevant for the Court to consider as stipulated in section 8(2) of the Evidence Act 1950: “(2) The conduct of any party, or of any agent to any party, to any suit or proceeding in reference to that suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant if the conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.

The Court also noted that in the Plaintiff’s Resolution it is stated that the said sum of money was to be held in trust by the Defendants on behalf of the Plaintiff. If the money was for services rendered by the 2nd Defendant it makes no sense for the money to be held in trust for the Plaintiff. The Resolution in fact should have expressly stated that the said money was for the services rendered by the 2nd Defendant.

The Court must give effect to the clear wordings in the documents and not allow the contents to be supplanted by exterior evidence. This is clear from section 91 of the Evidence Act 1950 which provides: When the terms of a contract or of a grant or of any other disposition of property have been reduced by or by consent S/N /KDxjnqwyUqeZSIHzs8v/A of the parties to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of the contract, grant or other disposition of property or of the matter except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Company Resolutions are documents required by the law to be reduced into writing and the document reduced in writing should be the proof of the contents. In this case the Resolution clearly specifies that the money remitted to the Defendants is to be held in trust for the Plaintiff.

The Defendants also contend that it is illogical for the said sum of money for the benefit of the Plaintiff is deposited in an unrelated entity. The Defendant further contends that the Plaintiff’s explanation of the difficulty of opening a Bank account is baseless.

On this issue the Court accepts the testimony of the Plaintiff that it was the 2nd Defendant who induced them to transfer the money to the 1st Defendant. Having no Bank account at that point of time the Plaintiff thought this suggestion as feasible.

The Plaintiff’s conduct in accepting the suggestion by the 2nd Defendant is not entirely illogical given the close relationship of the Plaintiff with the 2nd Defendant who at one time was their Director S/N /KDxjnqwyUqeZSIHzs8v/A and there is no evidence of animosity between them. With the benefit of the hindsight the action of the Plaintiff could said to be not prudent but certainly not illogical.

The Court therefore accepts the evidence of the Plaintiff that based on their trust of the 2nd Defendant they had agreed to the suggestion to transfer the money to the 1st Defendant.

Having received the money and holding it on trust for the Plaintiff the Defendants have breached the trust by not remitting the money to the Plaintiff.

Based on the factors above the Court allowed the Plaintiff’s claim for the sum of USD 5.25 million against the Defendants with a cost of RM200,000.

In this case the Court directed the Judgement sum be paid before the Defendant takes further actions in the case including appeal, taking note of the fact that the Defendants had earlier failed to comply with Court’s directives to deposit as security into court and had only complied after committal proceedings had been taken. S/N /KDxjnqwyUqeZSIHzs8v/A Dated: 11.3.2025 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES S/N /KDxjnqwyUqeZSIHzs8v/A For the Plaintiff: Nama Peguamcara: S. Chrishanthini / Yeow Tze Yi Tetuan Yeow & Wong 1-3, Jalan Dataran Jade 1, Jade Hills, 43000 Kajang, Selangor Darul Ehsan. For the Defendant: Nama Peguamcara: Dato Y Sivaloganathan/Dato Dhanaraj/Lingeshwara Raao / Andrew Navin (PDK) Tetuan Kamil Hashim Raj & Lim, Unit B-9-11, Phileo Damansara 1, No.9, Jalan 16/11, Off Jalan Damansara, 46350 Petaling Jaya, Selangor Darul Ehsan.