Mallya assets case: UK Court of Appeal refuses permission to appeal

Team Udayavani, Jul 26, 2018, 8:44 AM IST

London: The UK’s Court of Appeal has refused Vijay Mallya the permission to appeal against a High Court order in favour of 13 Indian banks to recover funds amounting to nearly 1.145 billion pounds, in another setback to the embattled liquor tycoon.

The 62-year-old businessman, who is separately undergoing an extradition trial in a UK court over fraud and money laundering charges by Indian authorities, had sought permission to appeal against the High Court order dated May 8.

In the ruling, Judge Andrew Henshaw had refused to overturn a worldwide order freezing Mallya’s assets and also denied permission to appeal, which left Mallya with the only option of turning to the Court of Appeal.

Judge Henshaw’s order marked the first recorded case of a judgment of the Debt Recovery Tribunal (DRT) in India being registered by the English High Court, setting a legal precedent. The Court of Appeal judges looked into Mallya’s application seeking permission to appeal and decided against it yesterday.

As a result of the High Court order, the Indian banks – State Bank of India, Bank of Baroda, Corporation bank, Federal Bank Ltd, IDBI Bank, Indian Overseas Bank, Jammu & Kashmir Bank, Punjab & Sind Bank, Punjab National Bank, State Bank of Mysore, UCO Bank, United Bank of India and JM Financial Asset Reconstruction Co Pvt Ltd – have the right to enforce the Indian judgment against Mallya’s assets in England and Wales.

“In the event permission has been refused, then the decision of the judge is final and Mallya does not have any further recourse of appeal against his decision,” said Kartik Mittal, Senior Solicitor at London-based Zaiwalla & Co LLP.

“The English judicial system does not give parties an unfettered right to appeal. The right to appeal is restricted. A party can only appeal a decision of the first instance Court if the first instance Court or the Appellate Court gives the party permission to appeal,” he explained.

“A party is granted permission to appeal only in cases where the appeal appears to have a real prospect of success or there is some other compelling reason why the appeal should be heard. Therefore, in majority of the cases permission is refused,” he added.

In a related High Court ruling on June 26, Justice Bryan had issued an enforcement order in favour of the banks, granting permission to the UK High Court Enforcement Officer to enter Mallya’s properties in Hertfordshire, near London, where he is based.

While it is not an instruction to enter and that particular order can be appealed against, the banks have the option to use the order as one of the means to recover funds owed to them. “The High Court Enforcement Officer, including any Enforcement Agent acting under his authority, may use reasonable force to enter the Property if necessary,” it states.

Mallya has since said that he has handed over a full statement of his UK assets to the court and there was no question of use of force to enter his home Ladywalk in the village of Tewin in England. The former Kingfisher Airlines boss had also issued a lengthy media statement last month, condemning the charges against him as politically motivated.

He then took to social media to clarify that he made the statement “after a long period of silence” because he had filed an application before the Karnataka High Court on June 22, setting out available assets of approximately Rs 13,900 crores.

“Media reports quote an ED [Enforcement Directorate] official stating that I am attempting a plea bargain. Would respectfully suggest that the official read the ED charge sheet first,” Mallya had said in his last Twitter message on the issue on June 30.

“I would invite the ED to advance the same plea bargain theory in Court in front of whom I have placed my assets,” he said. Meanwhile, Mallya remains on bail since his arrest on an extradition warrant in April last year.

He will return for his extradition hearing at Westminster Magistrates’ Court in London on July 31, when closing arguments are expected from the Crown Prosecution Service (CPS), acting on behalf of the Indian government, and Mallya’s defence team. A judgment is expected in the case at a later date, which will be arranged by Judge Emma Arbuthnot.

While the CPS claims it has successfully established a prima facie case of fraud against the businessman, Mallya’s lawyers have sought to establish that the criminal charges against him are “without substance”.

They have also challenged the case on human rights grounds, questioning the conditions at Arthur Road Jail in Mumbai, where the businessman is to be held post-extradition.