State Bank of India & Ors v Mallya [2025] EWHC 858 (Ch) (09 April 2025)

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Cite as: [2025] EWHC 858 (Ch)

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		Neutral Citation Number: [2025] EWHC 858 (Ch)
		Case No: CH-2020-000143 CH – 2021 – 000135 CH – 2021 - 000180

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
On appeal from Chief ICC Judge Briggs

Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL

9 April 2025

B e f o r e :

Sir Anthony Mann, sitting as a judge of the High Court
____________________

Between:

	State Bank of India and others	Appellants in the 000143 appeal; respondent in the 000135 and 000180 appeals
	- and -
	Vijay Mallya	Respondent in the 000143 appeal; appellant in the 000135 and 000180 appeals

____________________

Mr Tony Beswetherick KC and Ms Karen Petch (instructed by TLT LLP) for the Banks
Mr Mark Watson-Gandy (instructed by Zaiwalla & Co Limited) for Dr Mallya

Hearing dates: 21st, 22nd and 23rd February 2025
____________________

HTML VERSION OF APPROVED JUDGMENT
____________________

This judgment was handed down remotely at 10.00am on 9 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

Sir Anthony Mann :

Introduction

These are three appeals (technically one appeal and two outstanding applications for permission to appeal) relating to a bankruptcy order made against Dr Mallya on the petition of a number of Indian banks and one petitioner who is a successor in title to various other Indian banks. By and large it will be unnecessary to distinguish between the various petitioners and I shall not do so.

The appeal is from orders made on three decisions of Chief ICCJ Briggs. What follows is a very generalised outline of the appeals and their background. Later in this judgment I flesh out those details under the various appeals when I consider each of them in turn. The debtor, Dr Mallya, is, or was, the controlling shareholder of a large group of Indian companies including Kingfisher Airlines Limited. He was a well-known Indian businessman and a former member of the Indian parliament and is living in England under a permanent permission to remain. He guaranteed the debt of Kingfisher Airlines under a guarantee which did not afford any express proprietary security for his liabilities, and indeed it disclaimed the creation of security. In due course the principal debt was called in, as was the guarantee, and the lending banks obtained a judgment in an Indian tribunal called the Debts Recovery Tribunal ("the DRT"). The terms of the judgment of that court or tribunal are central to many issues on these appeals. It was in the sterling equivalent sum of approximately £1.12bn. The judgment was then registered in this jurisdiction and that registered judgment was the basis of the bankruptcy petition in this matter.

During the course of the petition Dr Mallya took the point that the petitioning banks had security for the bankruptcy debt and there was no reference to that security in the petition as required under the Insolvency Act 1986 section 269. and Rule 10.9 of the Insolvency Rules. They require any security held by the petitioner to be valued or waived. It was said that the petition should fail for that reason. The banks did not accept they had security, but in a judgment dated 9th April 2020 the Chief Judge held that the banks were secured creditors because of an estoppel arising out of the DRT decision. That decision is the subject of the first appeal before me, permission having been granted by Snowden J. I shall call this the "Security appeal" and the judge's judgment is the "Security judgment" ([2020] EWHC 96 (Ch)).

Having thus held, on the application of the banks the Chief Judge gave the banks permission to amend the petition (indeed, on one reading he actually ordered them to do so) to add an averment that, without prejudice to their contention that they had no security, the banks waived whatever security they had over Dr Mallya's Indian assets. The judge gave his decision on 18th May 2021 (the "Amendment judgment" - [2021] EWHC 1312 (Ch)). Dr Mallya seeks to appeal the decision to allow the amendment on the basis that it was improper to amend to include such a waiver because public policy prevented such a waiver. That is his first appeal, for which permission has not been granted. A wrapped-up hearing has been ordered in respect of his application for permission, to be heard with his second appeal (and the third with which I have to deal).

That third appeal arises out of what happened next. When the amended petition came on for hearing the Chief Judge made a bankruptcy order on 26th July 2021. In the course of argument on the petition Dr Mallya sought to argue that there was no petition debt. Despite the fact that judgment had been obtained and registered, and the petition debt was based on that, Dr Mallya alleged that part of the sum owed had in fact been received by the banks but they had not given credit for it because they said the receipt was only conditional in the sense that there might be an obligation to repay it. Those sums covered half or more of the petition debt. The rest of the sum said to be owing was in respect of interest which was said to be challenged in separate proceedings in India. If that challenge succeeded, and the "conditional" payments should have been treated as repayments, then it is said that no debt was owing at the date of the petition. Chief ICCJ Briggs rejected both these arguments and made a bankruptcy order - [2021] EWHC 2260 (Ch). Those determinations are challenged in an appeal for which permission is needed, and again a wrapped-up hearing has been ordered. I will call these elements of these appeals the Conditionality appeal and the Interest Rate appeal, and together they constitute the Bankruptcy Order appeal.

On these appeals the petitioners were represented by Mr Tony Beswetherick KC. Dr Mallya was represented by Mr Mark Watson-Gandy, who was apparently instructed very much at the last minute.

The essential factual background to all three appeals

The following facts are the factual background to all three appeals. They are derived from the three judgments appealed from or are otherwise from common ground.

On 21st December 2010 Dr Mallya gave an unlimited guarantee of the liabilities of Kingfisher Airline Ltd to various banks (essentially the petitioners). The guarantee contained the following provisions relevant to this appeal, as recited by Chief ICCJ Briggs in the Security judgment at paragraph 13:

(i) The guarantee would not result in the existence of or create any encumbrance over all or any of his present or future revenues or assets;

(ii) There was a negative pledge which precluded him from disposing of any part of his property or assets without the consent of the lenders.

On 26th June 2013 the banks commenced proceedings in the DRT against the airline, and against Dr Mallya and another of his companies (United Breweries (Holdings) Ltd - "UBHL") on the principal debt and on guarantees. That tribunal is effectively the court with jurisdiction to adjudicate on those claims. On 11th June and 3rd September 2016 Provisional Attachment orders were made against Dr Mallya under the Prevention of Money Laundering Act 2002 (the "PMLA") in favour of an enforcing body known as the Enforcement Directorate (the "ED"). This was in effect a provisional forfeiture order, whose ultimate fate, at least so far as Dr Mallya is concerned, depends on the resolution of Indian criminal proceedings against Dr Mallya. Dr Mallya has not returned to India to face those proceedings and they are still pending.

On 19th January 2017 the DRT gave judgment against Dr Mallya on his guarantee in the sterling equivalent of over £1.2bn - "the DRT judgment". The judgment was obviously given in Indian currency - Crore, which is 10m rupees - but to achieve consistency and to give a clearer idea of the sums involved I will refer throughout to the sterling equivalent of any Indian currency matters. I will also express relevant sums in round terms, because precise amounts do not matter. The DRT judgment is one of the judgments out of which the estoppels in this case are said to arise. I will have to come back to its terms later.

On 24th November 2017 the banks obtained registration of the DRT judgment in this jurisdiction, together with a freezing order. Dr Mallya applied to set aside the registration and on 8^th May 2018 that application was rejected in a comprehensive judgment of Mr Andrew Henshaw QC, sitting as he then was as a deputy judge in the Commercial Court. Since then that registered judgment has stood unchallenged, though credit has been given against it for some receipts by the banks.

There appears to have been a degree of competition between the banks and the Enforcement Directorate arising out of the attachment orders referred to above under the PMLA jurisdiction and on 10th October 2018 Justice Singh of the PMLA Appellate Tribunal ordered the ED to maintain the status quo pending the outcome of the banks' appeals against the Provisional Attachment order. The judgment on this application ("the Singh judgment") is said to be another source of estoppels in this case, and relevant in other ways which will appear.

On 11th September 2018 the banks presented the present petition against Dr Mallya. At the time the petition debt was said to be £1.112bn. It was based on the registered judgment and the debt had increased as a result of accruing interest. As a result of subsequent recoveries which the banks acknowledge as such the petition debt was amended downwards in a subsequent Re-Amended Petition to something over £1.05bn.

On 10th December 2019 Dr Mallya filed a writ petition in the High Court of Karnataka in India challenging the interest element of the DRT judgment. This petition has received an issue number in the court but has not yet obtained a petition number, which is necessary before it can be served and proceeded with. Apparently the originating document has to go through some verification process before that new number can be given. The document was not served by the date of the petition, and, I was told (and it was not disputed) it had still not been served by the hearing of these appeals. This is significant because it is the challenge to interest that is one of the two principal issues in the Bankruptcy Order appeal.

The Security appeal - the judgment below

In the judgment which is the subject of this appeal the court below held, contrary to the submissions of the banks, that their debt was secured. Because of that the petitioners' petition failed to comply with the 1986 Act and the Insolvency Rules because it stated that it was unsecured (paragraph 18) when it was not.

The relevant provisions are:

"s267 (2) Subject to the next three sections, a creditor's petition may be presented to the court in respect of a debt or debts only if, at the time the petition is presented—

…

(b) the debt, or each of the debts, is for a liquidated sum payable to the petitioning creditor, or one or more of the petitioning creditors, either immediately or at some certain, future time, and is unsecured, … [emphasis supplied]"

"s269 (1) A debt which is the debt, or one of the debts, in respect of which a creditor's petition is presented need not be unsecured if either—

(a) the petition contains a statement by the person having the right to enforce the security that he is willing, in the event of a bankruptcy order being made, to give up his security for the benefit of all the bankrupt's creditors, …

s383 (2) Subject to the next two subsections and any provision of the rules requiring a creditor to give up his security for the purposes of proving a debt, a debt is secured for the purposes of this Group of Parts to the extent that the person to whom the debt is owed holds any security for the debt (whether a mortgage, charge, lien or other security) over any property of the person by whom the debt is owed.

(3) Where a statement such as is mentioned in section 269(1)(a) in Chapter I of Part IX has been made by a secured creditor for the purposes of any bankruptcy petition and a bankruptcy order is subsequently made on that petition, the creditor is deemed for the purposes of the Parts in this Group to have given up the security specified in the statement".

Insolvency Rule 10.9 repeats the need for a statement about security:

"10.9.—(1) The petition must state for each debt in relation to which it is presented—

…

(f) that the debt is unsecured (subject to section 269);"

If the petition was wrong in its statement about the absence of security then it was faulty as the Chief Judge held. The petitioners/appellants say that he was wrong.

As I have pointed out, there was no express document by which Dr Mallya in terms conferred security on the banks. However, the judge held that security existed by reason of an estoppel arising out of the DRT judgment. Although parts of his reasoning appeared from earlier paragraphs, paragraphs 28 and following draw his conclusions. In paragraph 34 he adopted Rule 48 of Dicey, Morris & Collins on the Conflict of Laws 15th Edn and in paragraph 35 he applied it:

"34. The conclusiveness of a foreign judgment is dealt with in Rule 48 of Dicey, Morris & Collins on the Conflict of Laws (15^th Ed) at 14R-118 which provides:

"A foreign judgment which is final and conclusive on the merits and not impeachable under any of Rules 49 to 52 is conclusive as to any matter thereby adjudicated upon, and cannot be impeached for any error either of fact or law."

35. The authors of Dicey state that Rule 48 has never been questioned and that the Rule is consistent with the maxims interest reipublicae ut sit finis litium and nemo debet bis vexari pro eadem causa. They explain that Rule 48 "holds good whether the judgment is relied upon by the claimant or defendant" whether in rem or in personam. Of consequence Rule 48 "precludes a party from denying any matter of fact or law necessarily decided in the earlier judgment". In my judgment the DRT judgment (i) is a final judgment on the merits (it is not argued otherwise) (ii) is a judgment of a foreign court of competent jurisdiction (it is not argued otherwise) (iii) where the parties are clearly identified and (iv) is a judgment that concerns the subject matter or issues (namely security) that are argued before the court at this bankruptcy hearing. Accordingly Rule 48 applies: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 A.C. 853; The Sennar (No 2) [1985] 1 WLR 490."

He therefore seems to be relying on findings of the DRT in the DRT judgment (and not the Singh judgment). Preceding paragraphs set out his route.

The route starts (in effect) at paragraph 12 where he recites the guarantee and refers to security documents created by Kingfisher Airlines (not Dr Mallya). Then he refers to share pledges given to the banks by Kingfisher Airlines and UBHL (not Dr Mallya) which had been realised. Then he referred to the sixth defendant before the DRT, which was the Commissioner of Service Tax, and adverted to the sixth question before the DRT which was: "Whether the sixth defendant has got a first charge of the movable and immovable properties of defendants 1 to 3"; defendants 1 to 3 were Kingfisher Airlines, UBHL and Dr Mallya respectively. Then he cites paragraph 92 of the DRT judgment:

"The said claim of the sixth defendant cannot be accepted in view of section 31(b) of the RDDB & FI Act according to which the rights of secured creditors to realise secured debts due and payable to them by sale of assets over which security interest is created shall have priority and shall be paid in priority over all debts and government dues including revenues, taxes, cesses and rates due by them to the Central and State Government of any local authority. Further, even according to the 6th defendant, u/s 88 of Finance Act 1994, the claim of the sixth defendant will be subject to the banks claim. Hence, the claim of the sixth defendant for first charge over the charged assets of the defendants 1 to 3 is rejected and it is held that claim of the sixth defendant will be considered for distribution only as a second charge subject to the first charge of applicant banks being fully satisfied…"

At this stage I observe that this is really a statement of priorities, not a particular finding about securities held by the 1^st to 3rd defendants. The provisions of the Act whose name was abbreviated in that paragraph are set out in paragraph 14 of the judgment of Chief ICCJ Briggs:

"14 Chapter VI, section 31B of the Recovery of Debts Due and Financial Institutions Act 1993 cited as authority for the proposition that the Banks have a first charge over the assets of Dr Mallya in the DRT judgment provides:

"Notwithstanding anything contained in any other law for the time being in force, the rights of secured creditors to realise secured debts due and payable to them by sale of assets over which security interest is created, shall have priority and shall be paid in priority over all other debts and Government dues including revenues, taxes…due to the Central Government, State Government or local authority"

Mr Beswetherick submitted that contrary to what the Chief Judge said, that statute was not authority for that proposition. I agree that it is hard to see how it can be such an authority bearing in mind, as I have said, that it is about priorities between interests, not the creation of interests.

Paragraph 13 of the judgment then recites various provisions of Dr Mallya's guarantee, including the negative pledge and "no security" provisions referred to above, and ends by referring to an order made by the DRT:

"In the event of failure of defendants to pay the said OA amount, the applicant bank is at liberty to sell the hypothecated/mortgaged movables/immovables properties described in schedules to the main petition according to law…the Applicant Banks are also at liberty to proceed against the person and properties of the defendants 1 to 4 in execution proceedings."

That does not seem to amount to a clear finding as to what securities were held.

At paragraph 15 the judge cites an Indian definition of a security interest and a secured creditor under the Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002:

" By section 2(1)(b) a security interest means "a mortgage, charge, assignment or any other right, title or interest of any kind whatsoever upon property, created in favour of any bank or financial institution". The definition states that secured creditor means "any bank or financial institution or any consortium or group of banks or financial institutions holding any right, title or interest upon any tangible asset or intangible asset as specified…in whose favour security interest is created by any borrower for due repayment of any financial assistance". The term 'pledge' is also defined as a security interest."

On the basis of this and the DRT judge's likely knowledge of it, the Chief Judge said that:

"it is highly likely that Shri. K. Srinvasan [the judge in the DRT] was finding not only that the debt was due but that the Banks were secured and as a first chargee have priority over other charges."

He does not refer to any other specific passages or specific findings in the DRT judgment which might be said to amount to a finding that the banks were secured creditors.

Then the judge turned his attention to the challenge to the making of the attachment orders (forfeiture) carried out by the Enforcement Directive. An application for interim relief came before Justice Singh and led to the delivery of the Singh judgment. Because of the case made by Dr Mallya on this judgment it is necessary to consider in detail what the Chief Judge said about it and its background. In considering this judgment it is important to remember that this judgment is not said to be a source of the estoppel as to security. It could not be, because it was not a final judgment.

The Chief ICCJ Briggs said:

"16. As a result of the Banks reporting a potential fraud provisional attachment orders were made pursuant to the Prevention of Money Laundering Act 2002 on an application of the Deputy Director of ED [the Enforcement Directorate]. The attachment orders are said to be "in respect of movable properties and immovable properties as detailed below". The 'detail below' is contained in a schedule and provides a list of moveable and immovable properties which includes the pledge on shares and other assets of Dr Mallya, Kingfisher and UBHL. … The Banks subsequently challenged the attachment orders and filed three applications for condonation of delay. I am informed by counsel for Dr Mallya that the challenge application made by the Banks stated at paragraph 17 that they have "an interest in all the assets of Dr Vijay Mallya" by reason of the PG [personal guarantee] and the DRT judgment; and at paragraph 19 "the Applicants have an interest in the assets of Dr. Vijay Mallya by virtue of the Personal Guarantee dated 21.12.2010, on which basis recoveries had already been made against certain of his assets". This is strong evidence that the Banks knew or should have known that they held security."

I was not shown (and I do not believe the judge below was shown) the schedule recording the pledges so it is not known to what security or property this schedule refers. Mr Watson-Gandy did not assert any useful positive content of this schedule, so it is not apparent that it expressly referred to any security given by Dr Mallya as opposed to the other two debtors (who, it is apparent, did give some security as that term would normally be understood). It is also significant to note that the only source of the banks' rights (presumably now said to be security rights) was the personal guarantee, whose provisions would seem to be inconsistent with security rights properly so called.

The judge below then set out various paragraphs in Justice Singh's judgment and reached a conclusion on it:

"18. In his judgment Justice Singh set out the argument of the Banks that they have prior rights over the moveable and immovable properties in respect of Dr Mallya, UBHL and Kingfisher pursuant to the contractual provisions in the PG, a corporate guarantee and by a final order dated 19 January 2017 (the DRT judgment). The first respondent to the applications was the Deputy Director of the ED, the second to fifth respondents were Kingfisher, Dr Mallya, UBHL and Kingfisher Finvest India Ltd. The application for condonation of delay related to a delay of 562 days and the judgment of Justice Singh sets out the relevant part of the application:

"4. It is further submitted the Impugned Order was passed by the Adjudicating Authority inter alia confirming the Provisional Attachment Order dated 03.09.2016 passed by the Respondent No.1 in the criminal case bearing ECIR No. ECIR/07/MBZO/2016 inter alia attaching movable and immovable properties of the Respondent Nos. 2 to 5 are bad in law as the Appellants have prior right over the moveable and immovable properties of the Respondent Nos. 2 to 5 pursuant to the Personal Guarantee dated 21.12.2010, the Corporate Guarantee dated 21.12.2010 and the Final Order passed by the DRT on 19.01.2017 in O.A. No 766/2013 inter alia holding that the Respondent Nos 2 to 5 are jointly and severally liable to pay the OA amount and consequently by the Recovery Certificate in favour of the Appellants."

19. At paragraph 10 of the Judgment:

"I have gone through the application filed by the appellants for condonation of delay. This Tribunal is of the considered opinion that as a matter of fact, ED has failed to perform his duty not to implead the appellants (lenders) banks despite having full knowledge that the loan amounts have to be returned by Vijay Mallya and his associate company to the banks who are the mortgagees of the attached properties. One is failed to understand why have not done so when they were full aware. Thus, the prayer made in the application for condonation of delay is liable to be allowed as the sufficient cause has been shown…" (emphasis supplied)

20. Having dealt with the condonation application Justice Singh explained (paragraphs 20 and 21):

'Earlier, the State Bank of India and other banks have appreciated the investigation of the ED and were also satisfied with the Provisional Attachment Order passed by the ED and the confirmation order. Once the State Bank of India and other banks have come to the notice that the ED may not agree to dispose of the properties by the banks (in view of the decree passed) till the completion of trial under Section 5(5) of the Act, the banks have decided to challenge the impugned order before this Tribunal…Therefore, it appears that in the present appeal, the banks are seeking the interim order. Admittedly, the trial may take a number of years in view of the nature of the case and bulky records. The banks are the secured creditors against the unpaid loans by the Vijay Mallya and his associate companies.' (emphasis supplied).

21. This is further evidence to support the view that the Banks knew or should have known of the security."

For the avoidance of doubt, the emphases in those passages were supplied by Chief ICCJ Briggs. He then cited further provisions in this judgment and reached a conclusion:

"24. The Tribunal found that "in view of settled law on the subject, I am of the opinion the appellant Bank is the rightful claimant who have already obtained decree against the borrower from DRT" and (at paragraph 34):

"The Respondent No 1 is not having any lien over the said properties as the Appellant banks are now the Legal Transferee of said properties".

25. The Justice explained that the ED did not have title over the identified property, that the Banks are entitled to dispose of the properties if they chose and "have priority rights on assets of the secured creditors to recover the loan amount/debts by sale of assets over which security interest in created." And at paragraph 38 of the judgment the Justice said:

"In view of facts and nature of the present case, I am of the opinion that once the banks are secured creditors and have obtained the final decree from the court which has attained finality, the banks are bound to receive the default loan amount from Vijay Mallya and his companies. He was/is active person of the companies. The loans amount has to be paid by the borrowers. It is a banks money. It must come to the banks..."

26. The result of the challenge application in the High Court of Karnataka is that the Banks succeeded in demonstrating that the contractual nature of the PG made them secured creditors over certain assets of Dr Mallya, and the security had priority over any security obtained by the ED by reason of the attachment orders and interim orders were made. The terminology used suggests that the Justice was making interim findings but there can be little doubt that the Banks were asserting rights over property as secured creditors."

Having set all that out Chief ICCJ Briggs reached his conclusions in paragraphs 31-33:

"31. I agree with Mr Marshall that, the DRT judgment is of a competent court that found the PG gave rise to the "consequences prescribed by Indian statute under section 31B of the Recovery of Debts Due to Banks and Financial Institutions Act 1993 (as inserted by the Enforcement of Security Interest and Recovery of Debts Laws and Miscellaneous Provisions Act 2016) ("Section 31B"), namely that the rights of secured creditors to 'realise secured debts due and payable to them by sale of assets over which security interest is created' take priority over all other debts and government dues and that this is 'notwithstanding anything contained in any other law'." The fact of security is reinforced by the findings in the PMLA. Ms Shekerdemian argues that as the DRT judgment is against other parties as well as Dr Mallya "this is not security". She argues that the judgment merely gives rise to a right to enforce.

32.In my judgment the analysis given by the DRT and Justice Singh goes further than that contended by Ms Shekerdemian. This is not just a question of enforcement. The Banks are entitled to enforce the order made by the DRT over Dr Mallya's property rights. "

33.In my judgment the term "security" is used by the Indian Courts in a particular manner. It gives rise to a specific form of encumbrance over the property rights of Dr Mallya. It is specific as it gives the Banks priority in the business of collecting-in proceeds from the sale (enforcement) of specified property owned by Dr Mallya. The ability to make a claim on the proceeds enables the Banks to receive payment ahead of Dr Mallya and all other creditors. Another way of putting it is that the security interest found to exist, provides the creditor Banks with a right to secure payment of the sums said to be due. The rights also secure Dr Mallya's contractual obligations under the PG. The security interest does not purport to transfer outright any interest in Dr Mallya's property (which is not necessary for security) but restricts his right to dispose of specific assets free from the security interest. The security provisions are defined by Indian statute and the term "security" in English law is "no wider than the ordinary meaning of the word": Bristol Airport Plc v Powdrill [1990] 1 Ch 744, 760.

It was these findings that led to the conclusion that there was a finding in the DRT that the banks had security, and that this led to an estoppel. It should be noted that his estoppel finding was as to the DRT's judgment, not the Singh judgment. Apparently the notice of opposition to the petition originally based an estoppel argument on the Singh judgment, but 2 or 3 working days before the hearing below a witness statement was served which shifted the focus to the DRT judgment and the Singh judgment was no longer relied on as giving rise to the estoppel. The judge relied on it as evidence of knowledge of security, and no more. On this appeal the Singh judgment is relied on in support of an approbation and reprobation argument, to which I will come.

The security appeal - law

The law was not much in dispute. It was accepted by the petitioners that a foreign judgment can give rise to an issue estoppel and Mr Beswetherick did not take issue with the formulation in paragraph 35 of the judgment below so far as it went. He took issue with the application of that formulation, of course, and in particular the application of element (iv). However, he also pointed out and relied on an important over-arching point about the care which is required in considering estoppels arising out of foreign judgments. That point relates to the need to establish clarity in relation to estoppels said to arise from such judgments. This emerges from Good Challenger Navegante SA v Metalexportimport SA [2003] EWCA Civ 1668.

"50. The authorities show that in order to establish an issue estoppel four conditions must be satisfied, namely (1) that the judgment must be given by a foreign court of competent jurisdiction; (2) that the judgment must be final and conclusive and on the merits; (3) that there must be identity of parties; and (4) that there must be identity of subject matter, which means that the issue decided by the foreign court must be the same as that arising in the English proceedings: see, in particular Carl Zeiss Stiftung v Rayner C Keeler Ltd (No 2) [1967] 1 AC 853 ("the Carl Zeiss" case), The Sennar (No 2) [1985] 1 WLR 490, especially per Lord Brandon at p 499, and Desert Sun Loan Corporation v Hill [1996] 2 All ER 847.

…

"54. The authorities establish that there must be "a full contestation and a clear decision" on the issue in question. That is made clear in the speech of Lord Wilberforce in the Carl Zeiss case and (as the judge observed in paragraph 36) was echoed by Lord Brandon in The Sennar (No 2). The cases also underline four further important features of the approach of the courts to issue estoppel, which I will consider in turn. They are as follows:

i) It is irrelevant that the English court may form the view that the decision of the foreign court was wrong either on the facts or as a matter of English law.

ii) The courts must be cautious before concluding that the foreign court made a clear decision on the relevant issue because the procedures of the court may be different and it may not be easy to determine the precise identity of the issues being determined.

iii) The decision of the court must be necessary for its decision.

iv) The application of the principles of issue estoppel is subject to the overriding consideration that it must work justice and not injustice."

The need to establish there was a "full contestation" of the issue in question is set out with clarity in the judgment of Lord Wilberforce in the Carl Zeiss , cited at paragraph 59 of Good Challenger:

"As a matter of principle (and we are really thrown back upon principle), whether the recognition of judgments is based upon a recognition of vested rights, or upon considerations of public interest in limiting relitigation, there seems to be no acceptable reason why the recognition of foreign judgments should not extend to the recognition of issue decisions. From the nature of things (and here it is right to recall Lord Brougham's warning) this, in the case of foreign judgments, may involve difficulties and necessitate caution. The right to ascertain the precise issue decided, by examination of the court's judgment, of the pleadings and possibly of the evidence, may well, in the case of courts whose procedure, decision-making technique, and substantive law is not the same as our own, make it difficult or even impossible to establish the identity of the issue there decided with that attempted here to be raised, or the necessity for the foreign decision. And I think that it would be right for a court in this country, when faced with a claim of issue estoppel arising out of foreign proceedings, to receive the claim with caution in circumstances where the party against whom the estoppel is raised might not have had occasion to raise the particular issue. The fact that the court can (as I have stated) examine the pleadings, evidence and other material, seems fully consistent with its right to take a broad view of the result of the foreign decision. But with these reservations, where after careful examination there appears to have been a full contestation and a clear decision on an issue, it would in my opinion be unfortunate to exclude estoppel by issue decision from the sphere of recognition."

It is on the application of those principles of clarity that this appeal really turns. Mr Beswetherick submitted that when one applies those principles to the present case and to the judgment below, it can be seen that there is no clarity and the estoppel should not have been found.

The Security appeal - issue estoppel point

Ground 1 of the Amended Grounds of Appeal claims that the judge below erred in finding the estoppel that he did because the existence of the (alleged) security was not in issue before the DRT and it was not a necessary issue for the DRT to decide. When one considers the DRT judgment properly one can see that it does not identify or confer anything that English law would treat as security, and the judge failed to identify any such matters that he relied on. Furthermore he is said to have been wrong to find that the Singh judgment was supportive evidence on which he could rely because it was not a final judgment and the issue was not a necessary one for Justice Singh to decide either. Consequently the judge was wrong to find the petition was faulty and wrong to require an amendment.

Those arguments require a consideration of the two Indian court judgments, particularly in the light of the warnings in Good Challenger. However, before turning to that it is necessary to consider the question of what "security" means within the 1986 Act and the Rules. Mr Beswetherick submitted that it meant security in an English law sense. Mr Watson-Gandy did not seem to contest that, and I am sure that is right.

By way of elaboration, Mr Beswetherick and the judge below relied on what was accepted by Browne-Wilkinson V-C in Bristol Airport Plc v Powdrill [1990] 1 Ch 744, at p760. In that case he accepted a submission from Mr Crystal QC (at page 760) that security is created where in addition to a personal promise from the debtor a creditor obtains "rights exercisable against some property in which the debtor has an interest in order to enforce the discharge of the debtor's obligation to the creditor." That seems to me to be appropriately applied to the present statutory context, save that, insofar as it is not implicit in that formulation, the statute obviously contemplates an interest that is capable of taking priority over the interests of other creditors. That element obviously arises from the reference in section 269(1)(a) of the 1986 Act to giving up rights "for the benefit of all the bankrupt's creditors".

I shall call this form of security "security strictly so called", without pre-judging any of the issues that arise on this appeal. That is the form of security which should be the subject of the estoppel alleged and needs to be found in the DRT judgment if Dr Mallya's complaint about the form of the petition is to succeed. Obviously the Indian courts would not be expected to rule specifically on whether an alleged "security" was security within the English legislation, but in order for the estoppel to operate there must at least be a finding of some sort of interest of such a nature as falls within the English requirements.

Chief ICCJ Briggs reached his conclusion on this in his paragraph 33, set out above. In particular, he found that the banks were able to receive payment "ahead of Dr Mallya and all other creditors". That sort of fact must have been found by the Indian court if the res judicata/issue estoppel claim is to be made out. It is Mr Beswetherick's case that it is not made out. He also points out, correctly, that there was no attempt to identify clearly the nature and extent of the security which it was said had not been disclosed. I was told (without correction) that requests by the banks to identify the security during this litigation were not responded to with that information. Furthermore, it is not apparent from the judgment below what the security was that the judge found other than in general terms. It is not identified in terms of its subject matter or the manner of its creation. While that might not be a complete bar to the creation of an estoppel, it does seem to me to pose difficulties which need to be addressed. One would have thought that, if Dr Mallya was alleging that he had given security, he would know, or have some idea, of what it was he was saying he had given. Yet apparently he did not.

Particular care must be taken over the use of the word "security" in the Indian judgments because (as the two Indian judgments themselves demonstrate at times) it can be used in a more general way which goes beyond the definition to which it is appropriate to work in this case. Thus, for example, a guarantee is sometimes referred to as "security" for the principal debt, and that is not necessarily inapt, but a guarantee would not be security within the meaning of the insolvency legislation under consideration here.

At the beginning of this appeal I asked Mr Watson-Gandy what the security was that he said was not disclosed in the petition. He said that the security was a first charge whose source was the guarantee, an oral undertaking given by counsel for the petitioners before the DRT (which Mr Watson-Gandy accepted was an undertaking not to dispose of property) and section 31B of the Indian statute referred to above. By way of identifying the property caught by the charge he relied on shares referred to in the DRT judgment. During the course of submissions Mr Watson-Gandy also sought to rely on assets described in Indian originating proceedings as identifying assets caught by the charge relied on.

That being the case (and it has some sort of cross-reference to the DRT judgment, as will appear) it should first be observed that those matters would not normally create a security within the meaning of the English statute. The guarantee goes out of its way to explain that it did not create security. All it has is a negative pledge, which does not create a security interest, at least in English law. Similarly an oral undertaking not to dispose of property cannot amount to security within the English statute. Again, as I have already pointed out, section 31B would seem to be governing the question of priorities between government debt and security interests; it does not seem to create a security interest. So this would not seem to be promising territory for an assertion of security. It becomes even more important to look carefully at the judgment appealed from to see what was found and at the DRT judgment (which is said to be the fount of the estoppel) to see how the latter is said to give rise to some sort of charge through the mechanism of estoppel. That requires a detailed consideration of the DRT judgment, bearing in mind the caution required by Good Challenger.

The only passage or finding in the judgment below which was relied on by the judge as giving rise to the estoppel is that set out in paragraph 12 of the judge's judgment and the order set out in paragraph 13. They do not explain how it was said that the banks had a charge, what the charge covered or a description of what the issue was between Dr Mallya on the one hand and the banks on the other which would have led to an issue estoppel, bearing in mind that the estoppel has to arise as a result of a lis between the parties. Those are all shortcomings which need to be addressed. I do not consider that the judgment is at all clear on those points. It merely states some sort of conclusion, and that is not necessarily sufficient.

It is further said by Mr Beswetherick that when one looks at the DRT judgment, and such preceding material as was available, one cannot identify an issue between the relevant parties, or a finding that amounts to a resolution of that issue. That is said to be particularly so when the matter is viewed through the prism of Good Challenger's warnings about the need for care and clarity in relation to foreign judgments.

I agree that in order for there to be an issue estoppel operating between Dr Mallya and the banks there has to be an issue between those parties which was actually decided by the foreign court. Whether that is the case obviously has to be determined by the judgment itself, but prior material such as pleadings can be looked at in order to determine the matter - see Lord Wilberforce's speech cited above. As will be seen, in the present matter the DRT judgment does not plainly articulate such an issue, and there are no pleadings, or documents of a similar nature, in evidence. The only "prior" procedural document that is in evidence is an affidavit of a Mr Thakar, an Assistant Commissioner in the Service Tax Commission.

This affidavit was not before the judge below. That is because it relates to the DRT judgment, and that judgment, as opposed to the Singh judgment, was not said to be the source of the estoppel until just two full working days before the hearing below; so the banks did not have an opportunity to introduce it. On giving permission to appeal Snowden J allowed the affidavit as new evidence on the appeal. He gave permission to Dr Mallya to put in evidence to explain the context of this affidavit which might include copies of related evidence. Dr Mallya did not avail himself of that opportunity. So there is only the affidavit.

The affidavit sets out material and averments on which (apparently) the Commissioners (the 6th respondent in the application) based their case. Its whole purpose is to set out a case for saying that the Commissioners had rights in respect of liabilities of Kingfisher Airlines that were superior to the rights of the banks over assets of Kingfisher Airlines. Nowhere is there a reference to the Commissioners having rights over the assets of Dr Mallya which were superior to any rights of the banks. That latter point simply does not appear in the affidavit.

That is said, rightly, to be important context for the DRT. Other than the DRT judgment itself there is no other document in evidence, whether a pleading or otherwise, which indicates the existence, nature and scope of any issue between the banks on the one hand and Dr Mallya on the other. That point is heavily relied on, with justification, by Mr Beswetherick.

At last, therefore, I turn to the DRT judgment itself to ascertain whether it contained material which gave rise to the issue estoppel alleged by Dr Mallya and found by Chief ICCJ Briggs.

Mr Beswetherick took me to large parts of the DRT judgment in order to show what issues were being tried, and in order to demonstrate what issues were not being tried. However, it will be useful to start with the parts which Mr Watson-Gandy claimed gave rise to an issue estoppel. In my view, and contrary to some of his submissions, he bears the burden of demonstrating that the banks are estopped because he is making a positive case to that effect. It is inherent in Mr Beswetherick's case that he has not fulfilled that burden.

The following are the parts or passages relied on by Mr Watson-Gandy, without any real attempt to set out any prior context. In these passages (and in the judgment as a whole) Kingfisher Airline and UBHL are defendants nos 1 and 2 respectively, Dr Mallya is defendant no 3 and the Commissioners are defendant no 6.

First, paragraph 2(xi) under the heading "Averments made by applicant banks in brief". Here it is said:

"The Applicant-Banks have also initiated action against the secured assets of the Defendants under the SARFAESI Act [the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002] and these documents are filed as [exhibits specified]. The said measures initiated under the provisions of the SARFAESI Act were objected to by the defendants 1 to 3 but were rejected by the Authorised Officer of the banks. Therefore, according to the applicant banks, the first defendant as principal borrower and 2nd and 3rd defendants as guarantors for the 1st defendant are all jointly and severally due and liable to pay the claim made by them in the OA [Originating Application]."

It is not apparent to me how this passage demonstrates clearly, or clearly enough, some averment of security given by Dr Mallya over his assets. It is noteworthy that the passage ends by referring to money liabilities, not security liabilities. Furthermore, this is in the context of the earlier passages in the DRT judgment which set out averments of actual security given by Kingfisher Airlines and UBHL (and the 4th defendant), followed by paragraph 2(vii) which states (presumably recording an averment by the banks) that UBHL and Dr Mallya had given personal guarantees "for securing the repayment of [the Kingfisher loans]". That is not a reference to security properly so called, but it is worth noting that the word "securing" is used in a broader way than in relation to security strictly so called. This shows that some care may have to be used in considering the derivatives of the word "secure" in this judgment.

Next is the section of the judgment in which the passage cited by Chief ICCJ Briggs (at paragraph 12) appears. That passage seems to refer to some security given by defendants 1 to 3, but does not say what it was or who gave it. Standing by itself it does not establish a finding of any security relevant to the English bankruptcy sufficient to found an issue estoppel. In fact its context, as will appear, demonstrates that it was not even summarising prior findings which might found such an estoppel. I deal with the context after I have dealt with the specific passages relied on by Mr Watson-Gandy.

Next Mr Watson-Gandy relied on one of the "Points" by reference to which the DRT judge approached the considerable number of matters before him. Point 14 (paragraph 31) was as follows:

"Point No. 14

WHETHER the 6^th defendant has got first charge over the movable and immovable properties of Defendants 1 to 3"

That does not of itself much assist Mr Watson-Gandy. It indicates that the judge was going to consider whether the Commissioners had a charge, but does not indicate who else might have a charge, or over which properties.

Next was one of the orders that are decreed in the DRT judgment at the end. Orders 1(b) and (c) state:

"(b) The charge of the 6th defendant shall rank as 2nd charge over the schedule properties and other receivable after satisfaction of all claims of applicant banks."

(c) In the event of failure of defendants to pay the said OA [originating application] amount, the applicant bank is at liberty to sell the hypothecated/mortgaged movables/immovables properties described in schedules of the main petition according to law as sought by the applicant bank in the OA."

This order may be thought to be based on there being some claim by the banks over some properties, but it does not identify the nature of the claim, against whom it was made or the property concerned. That might appear from the "schedules" referred to, but that material was not in evidence. That would be the sort of extra material that Lord Wilberforce was referring to which it is appropriate to look at to see the scope of the issues and determination in an estoppel case, but Dr Mallya did not produce it below. (Mr Watson-Gandy offered to produce what he said was the schedule late in the appeal, but I refused to admit it on the ground that it was too late.) Mr Watson-Gandy pointed back to his reliance on Point 14 as demonstrating that the bank was asserting some prior right for these purposes, but it does not get Dr Mallya anywhere. Nor does the liberty to sell in Order 1(c), because it does not identify the interest, the owner or the properties.

Last is a passage in paragraph 41 of the DRT judgment which it is said shows the banks averring security over shares, which would seem to be the clearest averment of such a case. The parts relied on by Mr Watson-Gandy (and his predecessor in his skeleton argument) state:

"41. The main contention of the Applicant-Banks to seek an order as prayed for in the IA No. 5080/2013 is that they have the first charge over the said shares in view of the oral undertaking given by the Ld Counsel for Defendant No 3 before this Tribunal on 26/07/2013; and in view of Clause No.5(ii)(g) of the Personal Guarantee and Corporate Guarantee executed by Defendants No 2 and 3. According to the Ld Senior Counsel Mr Naganand appearing for the Applicant-Banks, these Clauses found in the Guarantee Agreements act as a clear bar against 2nd and 3rd defendants from dealing with the subject shares in any manner whatsoever."

This paragraph is at least a clear reference to a charge in favour of the banks. It coincides with (and may be the source of) Mr Watson-Gandy's contention that the security in question arises from the oral undertaking and negative pledge (to which the passage refers). However, a fuller consideration of this part of the judgment reveals that this passage does not assist Dr Mallya in the way he suggests.

It is first important to note the context in which these remarks were made. Tracking back through the judgment they are "Reasons and Discussion" of three questions:

"a) WHETHER the Banks have established their rights over the subject shares?;

b) WHETHER the rights of the 7th and 9th defendants as pledgees will prevail over the rights of the applicant-banks?; and

c) TO what relief the parties herein are entitled?"

Tracking back further, it is apparent from paragraph 36 that the shares in question were shares in a company known as Watson Ltd which were shares of Dr Mallya. It appears that in an interim application (IA No. 5080/2013) the banks were "shocked" to know that the shares had been pledged to others – apparently the 7th to 9th defendants. It is said in paragraph 36(iv) that the banks averred "that the said pledge was created by the 3rd defendant in violation of the oral undertaking given by his Advocate before this Tribunal and Clause No 5(ii)(g) of the Personal Guarantee dt 21.12.2010 given by the 3rd defendant to the banks for securing the payment of amounts from the 1st defendant under the [restructuring loan agreement] … And that the 3rd defendant's attempt to create any third party interest over the said shares should be curtailed."

The DRT judge then dealt with the "Objections of the 7th, 8th and the 9th defendants". He records:

"37) The main objections of the said defendants as stated in their respective objections are that the petition is not maintainable; that the subject shares do not form part of the securities held by the banks; that the said shares are placed with defendants 7 to 9; that this Tribunal lacks jurisdiction to affect third party rights, that the banks have no rights over the pledged shares…"

It was in that context that the three questions arose. It should be noted that the concept of "securities" in these extracts seems to be a looser use of the word so as to include guarantees, and the only source of the banks' rights are the negative pledges (oral and written).

The DRT judge then went on to elaborate the arguments of the 7th to 9th defendants as to why the written and oral undertakings not to dispose should not affect the pledges that they had taken. He then delivered the reasons which started at paragraph 41. He emphasised that the 2nd and 3rd defendants (UBHL and Dr Mallya) were "completely bound" by their undertakings and "any violation … will not be binding on the Applicant-Banks." His conclusion is at paragraph 44:

"Therefore the admitted oral undertaking given before this Tribunal is of binding nature and any action in violation by the party is void … the encumbrance here in the present case is the oral and written undertakings given by Defendants No 2 and 3 in the Personal and Corporate Guarantees executed by them and the huge claims of banks against them. The said admitted oral undertaking and the clauses in the said guarantees and the claims in OA act as a encumbrance and when the banks have made a colossal claim of around RS.6200.00 Crores against Defendants No 2 and 3, which factor has appeared in the press and which was also widely covered by the Press and media almost every date of hearing, it is not possible to accept that the 7th Defendant was an innocent guarantor."

He concluded in paragraph 50:

"50) In view of the above findings I have no hesitation to hold that creation of charge or pledge etc by the 3rd Defendant in favour of both Defendant No 9 and 7 are in violation of terms of the said oral undertaking and the Guarantee Agreements; and dependency of OA and hence are not legally valid and are hereby set aside."

All this context to paragraph 41 demonstrates that it is considering a competition between the negative pledges on the one hand, and subsequent (real) pledges on the other. It is not dealing with a competition between two competing security rights. The judge found that the subsequent pledges were ineffective as against the banks because of the negative pledges, not because of some prior right which this court would recognise as being "security". Accordingly Mr Watson-Gandy does not get home on the parts of the judgment that he relies on.

A consideration of the wider context of this judgment does not help Mr Watson-Gandy either. In fact it hinders him by making it quite plain that the question of real security (in an English law sense, and in the sense identified above) was not in issue between any of the parties in these proceedings, let alone between the banks and Dr Mallya.

The DRT judge started with a number of paragraphs setting out background and some of the contentions of the parties. At paragraph 2 he sets out "Averments made by applicant banks in brief". He identifies their averment that Dr Mallya had given guarantees but makes no mention at all of securities given by him. He does refer to pledges of shares given by defendants 1 and 2 (and 4) to the banks (paragraph 2(vi)). At paragraph 2(vii) he referred to defendants Nos 2 and 3 (UBHL and Dr Mallya) having provided personal guarantees in favour of the banks "for securing" payment of the principal debt. As Mr Beswetherick observed, this is again using the concept of "security" in a more generalised way not confined to the creation of proprietary rights.

In paragraph 2(xi) the judge referred to the initiation under the SARFAESI Act, relied on by Mr Watson-Gandy. Then in an extensive paragraph 3 the judge described the contents of "Written statement of Defendants 1, 2 and 3". When he gets to sub-paragraph (xi) he observes that "in the light of all these the Defendants No. 1 to 3 denied that the Applicant-Banks were entitled to the benefit of the pledged shares; and that the banks are not entitled to invoke the pledge agreement." It is not clear whether the "all these" he refers to is a reference to a catalogue of other proceedings that he had just set out, or whether it went wider, but in any event the pledge he refers to was not security given by Dr Mallya and it is not described as such. The reference to all three defendants taking the point is no doubt because they made common cause, not because Dr Mallya had given any pledge. The only prior reference is to a pledge given by the other defendants (see above).

The DRT judge then set out various claims by the defendants, including a claim that the guarantees were void ab initio, none of which involve a consideration or an averment of any security given by Dr Mallya. He then turns (in paragraph 17) to "Points for consideration relating to Defendants 1 to 3". He records a challenge to the guarantees (which he subsequently rejected as groundless) but made no reference to anything involving security given by Dr Mallya.

Then in his paragraph 14 he raises the question:

"Whether the 6th defendant has got first charge over movable and immovable properties of defendants 1 to 3".

He got round to dealing with that at paragraph 31 and in that context set out the passage cited by Chief ICCJ Briggs. The fuller recitation of what he decided is as follows:

"i) The 6th defendant has claimed certain monies as arrears of service tax with interest that was collected by the first defendant and not remitted to the sixth defendant. The sixth defendant has filed his written statement in the form of an affidavit, but not filed any separate evidence affidavit. Further, the sixth defendant has also not filed any evidence to prove that the first defendant collected the service tax from its customers and failed to remit to the sixth defendant. The sixth defendant has also not filed any material to substantiate its claim of more than Rs 58 crores, before this Tribunal. The sixth defendant claims first charge over the properties of defendants 1 to 3 for recovery of its outstanding is mentioned above."

There then follows the passage set out by the judge below in his paragraph 12, followed by a final sentence:

" Hence, this point is found against the sixth defendant."

This passage would seem to assume some sort of charge over assets, and other passages in the judgment demonstrate that Kingfisher Airlines had given some real security for its indebtedness, but it is does not appear from this passage what security Dr Mallya had provided, or that there was some sort of question arising in the proceedings between Dr Mallya and the banks as to whether he had given security. Nor is it apparent that the banks were averring some security over the assets of Dr Mallya which should be taken as somehow being affirmed as against the Revenue. Rather, this passage assumes some sort of security (at most) without explaining what it was.

The following paragraphs recite the challenge by the banks to security given by Dr Mallya to Defendants 7 to 9. That is the context of the findings by the DRT judge, identified above, that the security (pledges) was void as having been given in contravention of the negative pledges. I have dealt with this above. Then the judgment ends with the Orders again identified above, which do not assist Mr Watson-Gandy for the reasons I have given.

This is a case in which in order to establish whether there was a finding in a judgment which amounts to an issue estoppel involves a regrettably extensive consideration of a long and complex judgment dealing with a number of issues. The determination involves a consideration of what issues were involved in the proceedings and between which parties. There is no clear single finding of what Mr Watson-Gandy needs in this respect, and the single paragraph relied on by the judge below is insufficient even in the context of his other references. The judge below did not identify material which is capable of giving rise to the estoppel, and a wider consideration of the DRT judgment shows that that material was simply not available. That fuller consideration of the whole DRT judgment reveals that the relevant point was never in issue and there is no clear finding on the point. The banks were alleging a guarantee given by Dr Mallya, but no more (as against him). Any reference to that guarantee as giving security is not a reference to the banks having security in the relevant English law sense and there was no finding that the banks were secured and had a first charge having priority over other charges, contrary to the finding in paragraph 15 of the Chief Judge's judgment. The issue estoppel point therefore fails and the appeal on it succeeds.

It should be reiterated in this context that the Singh judgment, which might be said to contain clearer statements about security, was not relied on as giving rise to an estoppel, but was relied on by the judge as evidencing knowledge of the security (which one might have thought would be unnecessary if notice were needed - the bank would be taken to know what security it had). Since there was no security, this notice is irrelevant.

The Security appeal - approbation and reprobation

That, however, is not an end of the matter because by a respondent's notice Dr Mallya seeks to rely on what happened in both Indian courts as barring the banks from denying they held security over the assets of Dr Mallya by virtue of the doctrine which prevents a party from "approbating and reprobating". It is said that they relied on their having security in such a way as prevents their going back on that reliance.

One of the problems with dealing with this point on appeal is that the judge below did not have it argued as such before him, so some of the necessary fact-finding about the judgment on which it is based (the Singh judgment), and the underlying claims which gave rise to it, has not really been carried out. In addition, while the point is taken in Dr Mallya's skeleton argument on the Security appeal it is not really developed on the facts. Nor was it much developed by Mr Watson-Gandy orally. However, the point has been taken and it has been argued out on the basis of the available material (which is really the Singh judgment) so I will deal it.

The relevant law on this starts with Express Newspapers v News (UK) Ltd [1990] 1 WLR 1320 at p 1329F:

"There is a principle of law of general application that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance."

The principle was developed and explained in Malik v Malik [2024] EWCA Civ 1323, citing from earlier cases:

"32. Before Bacon J, it was common ground that the question whether a person is precluded from advancing a position in one case, where they have advanced the opposite in an earlier case, is to be answered by reference to the principles set out by Sir Christopher Floyd in LA Micro Group (UK) Ltd v LA Micro Group Inc [2021] EWCA Civ 1429; [2022] 1 WLR 336, at §19-26. As he concluded at §26:

"…this form of estoppel by conduct is one which is approached by means of a broad, merits-based assessment, and is not constrained by strict rules (as, for example, issue estoppel). The matters to consider include, but are not limited to, those enumerated by Ginsburg J in the New Hampshire case. It is material to ask the question whether it is apparent that the earlier decision was obtained on the footing of, or because of, the stance taken by the party in the earlier proceedings. Absent that factor, whilst the change of position may affect the credibility of the party or the witness concerned, there will not be an impression that one or other court was misled into giving its decision, so that the administration of justice risks being brought into disrepute."

33.The New Hampshire case there referred to was New Hampshire v Maine 532 US 742, and the principles enumerated in it were:

"First, a party's later position must be clearly inconsistent with its earlier position. Secondly, the court may enquire whether the party has succeeded in persuading a court to accept the party's earlier position, so that judicial acceptance of an inconsistent position in later proceedings would create the perception that either the first or the second court was misled. Thirdly, the court may ask whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped."

Zacaroli LJ them summarised the position on the authorities and said:

"36. Ultimately, the label is unimportant. Although Sir Christopher Floyd did not use the phrase, the form of estoppel by conduct in issue can readily be seen as a species of abuse of process. Moreover, as Mr Jourdan pointed out, it is not suggested that the Court of Appeal's decision in LA Micro is not a binding authority on the point. Accordingly, I propose to apply the test, which it was agreed before Bacon J was the appropriate test, namely that set out in LA Micro."

I shall consider the question on the basis of that exposition of the doctrine. Three particular points deserve emphasis. First, the formulation in Malik is that a party cannot adopt "two inconsistent attitudes towards another" (my emphasis). As will appear, that is not the case on the facts of this case. Second, Mr Beswetherick pointed out that the inconsistency, and abuse of process, alleged in the present case arises out of cases in different jurisdictions, which he says goes beyond any of the authorities. He would say that that is because something in this jurisdiction cannot be an abuse of the process of another. Third, it is not sufficient that inconsistent positions be adopted. The New Hampshire case demonstrates that it is a relevant factor to consider whether the party adopting an inconsistent position would derive an unfair advantage or impose an unfair detriment on the other party if not prevented from doing so.

All those three factors are capable of being relevant, but they all have to be viewed through the prism of abuse of process which can be said to underpin the doctrine. It seems to me that if there is sufficient evidence of an abuse (bringing the justice system into disrepute) then that might, in an appropriate case, trump each of the three requirements. I shall bear that in mind too. Having said that, I consider that the third of those factors is of particular significance here because no attempt was made to show any particular unfair advantage to the banks or detriment to Dr Mallya from the bank's asserting here that they had security. The case was advanced from the position that the banks were said to assert one thing before Justice Singh, and another in this jurisdiction, and that was enough. In my view that is not necessarily correct.

It is now necessary to consider the nature of the proceedings before Justice Singh and what the banks' position was in those proceedings. As with the DRT judgment, this is not always wholly clear because of the absence of anything in the nature of application notices or pleadings. The judgment of Chief ICCJ Briggs says this about it:

"16. The Banks subsequently challenged the attachment orders and filed three applications for condonation of delay. I am informed by counsel for Dr Mallya that the challenge application made by the Banks stated at paragraph 17 that they have "an interest in all the assets of Dr Vijay Mallya" by reason of the PG and the DRT judgment; and at paragraph 19 "the Applicants have an interest in the assets of Dr. Vijay Mallya by virtue of the Personal Guarantee dated 21.12.2010, on which basis recoveries had already been made against certain of his assets". This is strong evidence that the Banks knew or should have known that they held security."

The document quoted from was not shown to me, but it may be the document referred to in the judgment of Justice Singh in a paragraph cited by Chief ICCJ Briggs in his own paragraph 18:

"4. It is further submitted the Impugned Order was passed by the Adjudicating Authority inter alia confirming the Provisional Attachment Order dated 03.09.2016 passed by the Respondent No.1 in the criminal case bearing ECIR No. ECIR/07/MBZO/2016 inter alia attaching movable and immovable properties of the Respondent Nos. 2 to 5 are bad in law as the Appellants have prior right over the moveable and immovable properties of the Respondent Nos. 2 to 5 pursuant to the Personal Guarantee dated 21.12.2010, the Corporate Guarantee dated 21.12.2010 and the Final Order passed by the DRT on 19.01.2017 in O.A. No 766/2013 inter alia holding that the Respondent Nos 2 to 5 are jointly and severally liable to pay the OA amount and consequently by the Recovery Certificate in favour of the Appellants."

What is apparent from that is that the banks were apparently not relying on anything other than the Personal Guarantee and the DRT judgment. No further "security" was relied on. That is also apparent form paragraph 4 of the Singh judgment which repeats the same claim (and is one of the express matters relied on by Mr Watson-Gandy as demonstrating approbation).

Dr Mallya was Respondent No. 3 in those proceedings although he does not seem to have participated. The only participants were the banks and the Enforcement Directorate, which makes sense if the application was an interim application to decide what should happen to attached assets pending the determination of the banks' claims to override the attachment.

Chief ICCJ Briggs then set out various passages from the judgment which are now said to be capable of going to the point now in issue. Since Mr Watson-Gandy relied on other passages as well it will be sensible to set out briefly the material on which Mr Watson-Gandy relies as demonstrating approbation, with appropriate emphasis (some of which coincides with emphasis given by Chief ICCJ Briggs):

"10. I have gone through the application filed by the appellants for condonation of delay. This Tribunal is of the considered opinion that as a matter of fact, ED has failed to perform his duty not to implead the appellants (lenders) banks despite having full knowledge that the loan amounts have to be returned by Vijay Mallya and his associate company to the banks who are the mortgagees of the attached properties. " (Chief ICCJ Briggs' emphasis).

…

[Paragraphs 20 and 21] "Earlier, the State Bank of India and other banks have appreciated the investigation of the ED and were also satisfied with the Provisional Attachment Order passed by the ED and the confirmation order. Once the State Bank of India and other banks have come to the notice that the ED may not agree to dispose of the properties by the banks (in view of the decree passed) till the completion of trial under Section 5(5) of the Act, the banks have decided to challenge the impugned order before this Tribunal…Therefore, it appears that in the present appeal, the banks are seeking the interim order. Admittedly, the trial may take a number of years in view of the nature of the case and bulky records. The banks are the secured creditors against the unpaid loans by the Vijay Mallya and his associate companies." [Chief ICCJ Briggs emphasis]

24. The appellants are admittedly secured creditors who have obtained decree against the borrowers who have provided security …

32. In view of settled law on the subject, I am of the opinion that the appellant bank is the rightful claimant who have already obtained decree against the borrower from DRT under SARFAESI Act and has a priority rights to recover the loans amount forthwith."

The result of the hearing (appearing in paragraph 39 of the Singh judgment) is that Dr Mallya was restrained from dealing with certain properties in a Schedule to appeal documents until the next trial date. The properties are not identified or identifiable in the papers before me. The Enforcement Directorate was to maintain the status quo in relation to some properties identified in the "impugned orders" (again not identified) until the next hearing date in the appeal. It is not at all clear to me who was contending otherwise.

Those are the paragraphs which contain material which Mr Watson-Gandy relied on as approbation and which he maintains the banks are not entitled to resile from. Mr Beswetherick sought to put those remarks in a context which he said made it less clear that the banks were doing anything which amounted to an approbation of anything relevant to the question of security. He pointed to the following passages.

In paragraph 10 Justice Singh referred to "the loan amounts have to be returned by Vijay Mallya and his associate company to the banks who are the mortgagees of the attached properties." That is said to demonstrate that the judge was concerned with mortgages properly so called.

In paragraph 13 Justice Singh set out the pleaded background describing, inter alia, the obligations undertaken by the parties in favour of the banks. Although not expressly identified as such the pleading would seem, from its terms, to be the pleading of the banks. Paragraph 5 refers to the master agreement which recast the corporate debt and paragraph 6 refers to the loans being secured by "Security". Paragraph 7 refers to the creation of a Security Trustee to hold "Encumbrances" in accordance with "Security Documents". It would seem that this would refer to security strictly so called. Paragraph 10 refers to various "securities" created by Kingfisher Airlines for the benefit of the banks. This must mean "securities" strictly so called. Paragraph 12 refers to a guarantee given by UBHL "for securing the obligations of [Kingfisher Airlines]", and paragraph 13 describes that Dr Mallya (Respondent No.3) "provided a personal guarantee in favour of [the banks]for securing the obligations of [Kingfisher Airlines]."

It is to be observed that these pleadings distinguish between securities strictly so called and the guarantees. It is not suggested that the guarantees gave any form of security (though the judge does understandably use the word "securing" in its wider sense) and it does not appear that the banks actually pleaded that the guarantees gave them security in any wider form than giving them a collateral claim against the guarantors. When Justice Singh goes on in paragraph 14 to say:

"14. It is the admitted position that in order to secure the loan amount, many securities were given by the borrowers and agreements in this regard were executed"

he was again using "securities" in its wider meaning. Similarly he must have been using it in the same way in paragraph 16 when he said "The banks are admittedly the secured creditors", covering both the genuine securities given by the principal debtor and the guarantees given by UBHL and Dr Mallya. So far nothing in this document suggests the banks were propounding or relying on a case that they had "security" in respect of Dr Mallya beyond his guarantee.

That informs the meaning of what the Justice said in paragraph 21 in the passage relied on by Mr Watson-Gandy - "The banks are the secured creditors against the unpaid loans by the Vijay Mallya and his associate companies". It does not reflect an assertion by the banks that they held security strictly so called over assets of Dr Mallya. Similarly the first sentence of paragraph 24 (quoted above).

Paragraph 33, also relied on by Mr Watson-Gandy, says:

"33. In view of settled law on the subject, I am of the opinion that the appellant bank is the rightful claimant who have already obtained decree against the borrower from DRT under SARFAESI Act and has a priority rights to recover the loans amount forthwith."

This does no more than reflect what the DRT judgment achieved, which is analysed above. It may demonstrate that the banks had achieved a degree of priority against certain other claims, but it does not demonstrate an averment that they had security strictly so called.

Last, Mr Watson-Gandy relied on a paragraph given in expert evidence of Justice Verma, a former judge of the Supreme Court of India. He was an expert engaged by Dr Mallya later in the proceedings, and in the course of one of his reports (necessarily post-dating the Security judgment, and therefore not available to the judge below at that time) he made a general observation about what the banks are said to have said about being "secured creditors" and that they thereby obtained orders in their favour (paragraph 5.2.2). This technically amounts to fresh evidence on this appeal, introduced without any application (or any announcement to that effect by Dr Mallya) and so is technically inadmissible, (though Mr Beswetherick did not take that point) but in any event it does not assist because it is no more than a comment without substantiation and would be inadmissible anyway. However, it is of slight interest to note that his last sentence refers to the fact that at the final hearing in the PMLA proceedings (in which the Singh judgment was an interim judgment) he comments on the result of the final PMLA hearing without in any way suggesting that, or how, the "security" point affected that final judgment, and that final judgment has never been pressed in these proceedings.

Against that background it is necessary to consider how the approbation/reprobation point works. Mr Watson-Gandy's case seems to assert that because the banks had asserted that they had security in one set of proceedings, that was sufficient, without more, and without further inquiry, to bar them from saying something the opposite in another set of proceedings. That is an over-simplification of the doctrine. The doctrine is intended to achieve justice (and/or to prevent there being an abuse of process), and it is relevant to look at a wider picture than is produced by the sort of mechanical exercise proposed by Mr Watson-Gandy.

So it is necessary to investigate closely exactly what it was that the banks were averring in the previous proceedings. Mr Watson-Gandy has to demonstrate that what was being averred (the approbation) was the opposite of what the banks' case is in the English proceedings. It is clear that in the English proceedings the banks were saying that they had no security strictly so called. In order to get the approbation/reprobation off the ground it must be established that the bank was saying the opposite in the Indian proceedings. That is not apparent at all. It is clear that the bank was asserting some sort of priority to assets over the Enforcement Directorate in the enforcement proceedings, but it is apparent that they were just asserting the result of the DRT proceedings, and for the reasons given above those proceedings do not establish that the banks were found to have security strictly so called. The banks' pleading, cited in the Singh judgment and referred to above, did not rely on that sort of security, and the pleading of their right was just as to the guarantee Looking at the extracts from the Singh judgment which were referred to, or which I have identified, the assertions of the banks cannot be seen clearly to establish that the banks were maintaining a case for full security rights (which would be difficult bearing in mind the provision of the guarantee which abnegated the existence of such security).

Further, the successful application of the doctrine in this case would require a wider assessment of the justice of the case. It is not apparent what final advantage the banks got from adopting whatever position it was that they adopted. The decision of Justice Singh effectively held the ring. What happened on the final resolution of the proceedings, and what position the banks adopted there, would be capable of being relevant, but it is not known.

Overall, I consider that Dr Mallya had not established a sufficient basis for the application of the doctrine in this case so as to disentitle the banks from saying they had no security in an English bankruptcy law sense. It is not clear enough that they were taking a materially different stance before Justice Singh, and it is not clear enough that, in the circumstances, they should not be permitted to resile from what they were saying, if indeed they are resiling at all. In the circumstances this basis of upholding the decision of Chief ICCJ Briggs fails.

The Security appeal - decision

It therefore follows that the Security appeal should be allowed. The banks' pleaded position on security was one which they were entitled to adopt. For the sake of completeness I add that ground 2 of the appeal, which complained that the judge decided his issues without having expert evidence, was not advanced at the hearing before me.

That decision means that the amendment appeal would seem to become irrelevant. However, since it was argued I will decide the point, though perhaps more briefly than I might otherwise have done.

The amendment appeal - the judgment

The first judgment below records what happened when the judge had delivered his decision on the Security point. At the end his judgment Chief ICCJ Briggs held that what he found to be a defect in the petition in relation to security was capable of being cured by amendment, gave permission to amend to bring the petition into line with section 269 of the 1986 Act and directed the filing and service of a draft amended petition which would have to be dealt with at an adjourned hearing. The petitioners duly drafted an amendment which said that, without prejudice to any appeal on the Security point, the petitioners would give up the security which had been found in the event of a bankruptcy order being made.

There was then a hearing over two unfortunately spread-out dates (18th December 2020 and 23rd April 2021) at which the judge considered the proposed amendment and the objections to it. He considered that the form of the amendment was not entirely appropriate but that could be remedied in due course and went on to determine the opposition to the amendment raised by Dr Mallya.

The overall umbrella of the opposition grounds was that to allow the amendment would be to deprive Dr Mallya of a valuable defence, which broke down into 2 essential elements:

(a) Public policy prevented the waiver which the amendment contemplated from taking effect.

(b) The conduct of proceedings in India gave rise to an issue estoppel, or to an attempt to approbate and reprobate, which prevented the waiver.

Chief ICCJ Briggs decided all these points against Dr Mallya – [2021] EWHC 1312 (Ch). He considered a number of Indian statutes said to bear on the issue, and then recited some of the evidence that he heard from two experts in Indian law - retired Justice Verma for Dr Mallya and retired Justice Gowda for the banks. Having done so, he concluded that there was nothing in Indian statute law which prevented a waiver of security (paragraph 71). Then he turned to the "Petitioner's inability to relinquish security - public policy" and considered the opinion of Justice Verma:

"74. Justice Verma turns to the common law to make good his opinion that public policy prevents the Petitioners from relinquishing any security they may hold; there is a principle of Indian law that the waiver of a statutory or non-statutory right affecting public interest is impermissible."

The judge then turned to several authorities which were said by Dr Mallya to make good this proposition and reached a conclusion in paragraph 85:

"85. The parallels between the above cases and the present one are difficult to draw. I have no doubt that public policy was involved in drafting section 31B RDBA to encourage lending to businesses by permitting secured creditors to take priority over other creditors, including government bodies. However, the protection afforded is to secured creditors and not the public at large. There is nothing within the provision or the PIA 1920 that bars a waiver of security rights; indeed it expressly contemplates such waiver. As Justice Gowda pointed out section 9(2) uses very similar language to section 269 IA 1986: "if the petitioning creditor is a secured creditor, he shall in his petition either state that he is willing to relinquish his security for the benefit of creditors in the event of the debtor being adjudged insolvent…" It does not prevent a secured creditor who is a public body or has public shareholders, who once asserted the security, from relinquishing. The only consequence of relinquishment is that it would lead a creditor, who once had a proprietary interest in the property of the debtor, and stood first in the queue for payment, to join the general pool of creditors: in my judgment that is not contrary to public policy: section 47 of PIA 1920."

The section 31B referred to is section 31B of the Recovery of Debts Due and Financial Institutions Act referred to and set out above.

Then the judge turned to a res judicata point. He recorded that the point raised was that representations made by the banks to the Indian courts and judgments given were such that the banks were not entitled to deny that they were public bodies holding security and were bound to act in the public interest. Chief ICCJ Briggs rejected that submission on the basis that assertions could not give rise to issue estoppel and the issue in the application before the Indian courts was not the same as the issue arising on the application before him, and in any event an application to amend is not inconsistent with a decision to disclose security and waive it. He rejected an estoppel argument, based on representations said to have been made before Dr Mallya gave the guarantee, on the facts and further rejected a submission that the doctrine preventing approbation and reprobation prevented the waiver of security.

Dr Mallya challenges those findings. The first thing he relies on in this appeal is an assertion that the judge's first determination about public policy did not deal with or consider the actual point that was being made. It is right that Dr Mallya's overall case was that public policy prevented the banks from surrendering security, and therefore from pleading a waiver, but that public policy was one arising out of the circumstances and not statute. Mr Watson-Gandy submitted that the judge below did not deal with that point because he seemed to base his decision purely on statute.

There seems to be something in this point. I have studied the transcript of the oral submissions made below by Mr Watson-Gandy's predecessor and it is right that his submissions were not centred around public policy arising out of statutes, so the Chief ICCJ Briggs' section based on "a question of statute" deals with submissions that were not made. His next section based on "public policy" seems to proceed to deal with the case advanced below based on more general public policy, and it does indeed deal with authorities which were central to the submissions made below but his conclusory paragraph 85 seems to revert to a consideration of whether statute stood in the way of waiver which was not quite the point made. It is therefore necessary to revisit the point because the judge did not quite decide it, though he set out much of the relevant material. Logically it is probably appropriate to consider the res judicata point first, which is what happened below, but Mr Watson-Gandy addressed the general point first, so I will do the same.

Chief ICCJ Briggs cited four authorities. They all involved a consideration of whether the effect of a particular statutory provision conferring a right or protection could be waived by an individual, and the effect (if any) that the public interest had on any such attempted waiver. The most directly relevant in terms of what the court said, and the case which figured most in Mr Watson-Gandy's submissions, was All India Power Engineer Federation v Sasan Power Ltd (2017) SCC 487, and the passage which figured at the forefront of the submissions was that cited by the judge below:

"It is also clear that if any element of public interest is involved and a waiver takes place by one of the parties to an agreement, such waiver will not be given effect to if it is contrary to public policy."

Mr Watson-Gandy submits that there is a relevant public interest here that the bank should retain the security and therefore the waiver of that security is contrary to Indian public policy and should not be allowed; therefore the amendment should not be allowed.

Chief ICCJ Briggs observed this about that authority:

"84. That maybe taking the principle too far as the court in Dhirendra Nath Gorai pointed out: many provisions are conceived in the interests of the public but not all are intended to protect the public."

Dr Mallya's skeleton argument took the point that it was not for an English court to decide that the Supreme Court of India (the forum in All India) had taken a principle too far, but I do not propose to engage in that debate. In my view the point clearly fails even on the stated All India formulation.

The first thing that has to be done is to identify what the relevant public interest is. Mr Watson-Gandy's case on this stems from a perceived public interest in the banks' taking security for the loans in the first place. This submission stems from an averment that the moneys lent to Kingfisher Airlines were "public moneys" because the banks involved were nationalised banks and the Indian courts had described them as public moneys. That meant that there was a public duty to take security, and it was therefore contrary to public policy to release it. Mr Watson-Gandy carefully formulated his case in these precise terms:

"since there is a duty to take the security, arising out of the fact that it is public money, then it is contrary to public policy to release the security under any circumstances other than enforcement."

That is what he said Chief ICCJ Briggs should have found. It has its roots in what was said in the DRT judgment and in the Singh judgment. In the former the judge said the following in the context of considering a defence by UBHL and Dr Mallya that they had been coerced into giving their guarantees:

"19(ii) The above contention of coercion raised by the second and third defendants are so unworthy of any consideration for the simple reason that there was none. Not only the applicant banks are dealing with the public money, but it was also the defendants 1 to 3, who knowingly availed public money as loans from the banks with a promise to repay the same. It is the bounden legal duty of the banks and borrowers to ensure that such loans are properly secured by a mortgage over immovable properties, hypothecation over movables and guarantees of directors and all other types of guarantees including even that of third parties wherever offered or possible. The second and third defendants cannot expect the banks to give away public money as loans to them without even guarantee from them for the repayment in addition to other securities and loan documents…"

Mr Watson-Gandy also pointed to a later passage:

"49) The commercial world in India should realise that it will no longer be possible for them to avail loans of public money, default in repayment and tried to get away to the lanes and by-lanes of twisted facts."

He further relied on the following passages in the Singh judgment as demonstrating that the moneys in this case had to be treated as "public money":

"32. The Hon'ble Supreme Court of India in the case of Attorney General of India and Ors (AIR 1994 SC 2179) while dealing with the matter and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act has defined the illegally acquired properties and held that such properties are earned and acquired in ways illegal and corrupt, at the cost of the people and the state, hence these properties must justly go back where they belong. In the present case as the money belongs to the Appellant bank it is public money.

…

38. In view of facts and nature of the present case, I am of the opinion that once the banks are secured creditors and have obtained the final decree from the court which has attained finality, the banks are bound to receive the default loan amount from Vijar Mallya and his companies. He was/is the active person of those companies. The loans amount has to be paid by the borrowers. It is a banks money. It must come to the banks. These are public sector banks. The decretal amount is recoverable in law being public money."

The All India case as an authority may be thought to express an uncontroversial proposition in general terms. However, it is necessary to apply its two elements properly to the facts of any given case. First the relevant public interest has to be identified, and second one has to determine that a proposed act is contrary to that interest. Mr Watson-Gandy establishes neither of those things.

So far as the first element (the existence of a public interest) is concerned, one has to consider what the two Indian judgments were saying. The mere description of the moneys lent as being "public money" does not define what the legitimate public interest is in the transactions in question. It is a generalised term which does not necessarily assist much in determining what the consequences of that description are in any particular context. Mr Watson-Gandy would doubtless say that the DRT judgment fills in that blank when it refers to the "bounden duty" of the banks to take proper security. That "duty", as a matter of financial responsibility, would doubtless exist in any bank, nationalised or not, and it is not clear what difference the label "public money" adds.

Furthermore, it is important to note the context in which the DRT judgment makes those remarks. They were made to rebut an allegation of coercion. The judge is basically saying that when it came to the lending transaction the responsible conduct of the banks involved taking adequate security, so it is hardly surprising that, as a matter of commerce, they insisted on security and Dr Mallya would not be surprised at that, or experience coercion. I am not sure that the DRT judge was saying any more than that.

So far as the second element is concerned (acting contrary to the public interest), even if there is a case for saying that the public nature of the moneys being lent somehow gave rise to a public interest in the taking of security, it does not follow that the same "public interest" operates to prevent the giving up of the security outside the context of enforcement. I have carefully recorded above the way in which Mr Watson-Gandy put his case, and it betrays the failure of logic that I have just described. A bank that has taken security that it considers to be necessary and commercially wise, if not essential, may decide that it is in its commercial interests to give up a piece of security, and is entitled to exercise commercial judgment in that respect. Whether or not "public interest" could ever vitiate that commercial judgment, there is no evidence which would support such a vitiation in this case. In the circumstances of this case it is not for the banks to make some sort of case for their decision being in the public interest. It is for Dr Mallya, if he says the amendment and its consequences are not in the public interest, to make that case on the facts. That has not been done, which is not surprising. What seems to have happened is that the banks have taken a commercial view as to how to conduct the English bankruptcy petition (and thereafter their rights in the bankruptcy) and have decided to waive whatever security rights they have in the Indian property, which they do not consider they have anyway according to the proposed amendment.

On that material, therefore, Mr Watson-Gandy's arguments fail. However, it is necessary to pay attention to the evidential material referred to by the judge. It was not really relied on by Mr Watson-Gandy in his oral submissions, and Dr Mallya's skeleton argument relies on the expert evidence for no more than to establish that the principle apparently identified in the All India case was indeed good law. However, I have reviewed what Chief ICCJ Briggs has said about the evidence in his judgment. There is nothing in it which would cause me to revisit the reasoning and conclusions that I have just set out. Indeed, at paragraphs 58 and 61 the judge records evidence from Dr Mallya's own expert (Justice Verma) which would be contrary to the sort of blanket proposition advanced by Mr Watson-Gandy.

Accordingly this line of appeal fails. I do not consider that it has real prospects of success, despite the fact that it has its roots in the judge's not considering counsel's arguments properly, and I refuse permission to appeal on this point.

I therefore turn to the part of the appeal based on res judicata or issue estoppel. Again, the appeal on this point turns on an averment that the judge did not actually address the point that had been made below. In paragraph 86 Chief ICCJ Briggs refers to the opinion of Justice Verma in terms which suggest the point he was asked to decide:

"His opinion related to the issue of whether the Petitioners held security. Dr Mallya argues that by the representations made by the Petitioners in the Indian courts and the judgments given the Petitioners cannot deny that they are public bodies, holding security and act in the public interest."

Having set out material from the two Indian judgments (which I have set out above) he poses the question:

"88. How can these matters said, and judgments relied upon give rise to res judicata?"

And he answers this question in paragraph 89:

"89. Once accurately described it is readily apparent that res judicata cannot succeed as an argument. The submissions made by the Petitioners at hearings in India do not constitute "a decision pronounced". The judgments relied upon do not dispose of the fundamental matters to be decided on this application."

And again in paragraph 91:

"For the reasons I have given, in my judgment, reliance on The Sennar (No 2) does not assist as:

91.1. it cannot be said the issue in this application, in which the estoppel is said to give rise to a bar, is the same issue as that decided by any of the judgments in the earlier actions;

91.2. the assertions made at hearings are not judgments (and certainly not final decisions) of the court; and

91.3. in any event asserting security rights in India is consistent with an application to amend to disclose the security and waive it for the general body of creditors."

The case of Dr Mallya in his Grounds of Appeal is that this betrays a misunderstanding of how the case on res judicata was put. What the judge should have addressed was the question of whether it was res judicata that the public interest was engaged in relation to the obtaining of security, and the decisions showed that it was. Chief ICCJ Briggs apparently addressed a different issue, similar to the first issue he had decided.

The first question is whether the criticism of not addressing the res judicata point is justified on the footing that that was the point taken below and it was not addressed.

In the Grounds of Appeal the point which is said to be res judicata, and which it is said the judge did not address, is said to be:

" Dr Mallya's contention was that the Petitioners had relied before the Indian courts on the public interest in their obtaining security for their loans and that that issue – as to whether the public interest was so engaged in this regard – had been determined, such that it is not now open to the Petitioners to deny that there was a public interest in their holding security."

This is not the same as the transcript reveals as being the way the point was put below (at page 27), where the point was said to be this:

"The real question is over its application to our case and then the question arises, well, is there a public interest in our case that would prohibit the banks from releasing their security?…

The first is that the Indian courts have in fact so decided and the matter is actually res judicata."

The difference seems to me to be this. The Grounds of Appeal put the thing decided as being the public interest in obtaining security, and the ground does not extend to there being a public interest in releasing/not releasing. That latter element is said to flow as some sort of logical conclusion from the pleaded public interest. In the formulation as argued by counsel the thing decided is said to extend to the public interest in there not being a release - that is not treated as being just a logical extension of a prior public interest. The distinction is important when considering the impact of res judicata (or issue estoppel) where clarity is essential.

It has to be said that it is not wholly clear that the judge below dealt with either formulation, because at paragraph 27.3 he identifies one of the questions for him as being:

"Res judicata: has the issue of whether there is a public interest in the Petitioners' retaining the security, they represented (to the Indian courts) they held, already been subject to decision, such as to be res judicata? Dr Mallya relies on Sennar (No 2) [1985] 1 WLR 490 as summarised in the judgment I handed down in this matter on 9 April 2020 at [34-35]."

I accept that this is not quite the same question now raised on this appeal and as that posed by and argued by counsel below, and the decision part of the judgment below (paragraphs 86 to 91) does not clearly align itself with either formulation. However, what is clear is that neither formulation gets Dr Mallya home on this appeal. The suggestion that the Indian courts actually decided that there was a public interest which prevented the release of security is unsustainable on the findings of the judge or on the evidence. There is simply no finding to that effect.

Nor does the narrower formulation assist Dr Mallya. Even if there was a res judicata to the effect that there was a public interest in taking security in any meaningful sense (which I do not actually consider that there was) it does not follow as a matter of res judicata (or issue estoppel) that there should be taken to be a further finding that that public interest prevented any release of the security. That is really an end of the matter.

I do not consider that an appeal on this point has a real prospect of success and I would refuse permission to appeal.

Last there is an estoppel and an approbation and reprobation point. So far as estoppel is concerned the judge ruled against a prior estoppel by representation, and that has not re-emerged in this appeal. So far as an estoppel arising out of the conduct of the proceedings is concerned he preferred the evidence of Justice Gowda to the effect that it was not too late to give up security even if it was relied on for other reasons. There was no inconsistency between relying on security at one point in time and relinquishing it at another when bankruptcy ensued. He accepted the evidence of Justice Gowda that clear statutory provision would be required to prevent a secured creditor from exercising the rights conferred by the Indian equivalent of our section 269. (paragraph 93). In my view that was a decision he was entitled to reach on the evidence and there is no proper basis for challenging it.

So far as approbation and reprobation is concerned the judge ruled as follows:

"94. The submissions are of a similar nature to the estoppel arguments advanced. The Petitioners cannot say one thing in one set of proceedings between the same parties and say the opposite in these proceedings. In other words, the Petitioners may not approbate and reprobate. It does not follow that the Petitioners cannot relinquish their security if that is what they chose to do. There is no inconsistency of approach. The amendment to be made is, if anything, entirely consistent with the contentions previously made that the Petitioners hold security over the assets of Dr Mallya"

The Grounds of Appeal claim that the judge erred in principle because he ought to have found that the banks had "repeatedly" advanced a case that there was a public interest in the recovery of the loans they had advanced and in the existence of the security obtained for those loans. Thus they managed to procure orders in their favour. Alternatively they should not be entitled to approbate and reprobate in relation to the issue - if there was a public interest in the holding of security it was logically impossible to contend that such security could be given up without good reason consistent with such public interest, and such good interest was never identified in the factual or expert evidence.

This ground fails too. So far as estoppel is concerned, the judge was right to say that advancing differing cases at different points of time does not give rise to an inconsistency and an estoppel. More is required than those bare facts. That much is basic law. The approbation/reprobation claim fails because there is nothing wrong with the reasoning of the judge in his paragraph 94. The existence of a good reason for the taking of security does not persist for ever, and that applies even if the "good reason" is "public interest" (whose existence, in relevant terms, I frankly doubt). If the debtor really wishes to run an intelligible case that the giving up of security is somehow against the public interest (which would be a strong case) in the face of an apparently intelligible commercial decision to give up security then he/she must articulate clearly what is said to be contrary to the public interest, which in effect would amount to a case that no reasonable creditor would take that course, as it seems to me.

This ground fails as having no real prospect of success and I do not grant permission to appeal.

The Bankruptcy Order appeal

The amendment to the petition having taken effect, the matter was then restored on 26th July 2021 for a further hearing of the petition. On this occasion the petitioner pressed for the making of a bankruptcy order. Chief ICCJ Briggs delivered judgment on that day. So far as relevant to this appeal, in that judgment he dealt with two arguments advanced by Dr Mallya for dismissing or adjourning the petition. The first was that moneys had been received sufficient to satisfy the debt. This is the "Conditionality issue" or "Conditionality point". The second was that Dr Mallya was mounting a challenge to the interest element of the petition debt, which had not been heard. I will call this the "Interest Rate issue" or "Interest Rate point".

In summary, in his judgment the judge rejected the first point on the footing that the receipt of funds alleged was conditional only, because of an undertaking given by the banks to return or pay the moneys to the Enforcement Directorate if called upon to do so. The petitioners were therefore entitled to treat it as not reducing the petition debt. He rejected the Interest Rate point on the footing that he did not consider that it had sufficient merit and he was not convinced it would be pursued with all due diligence. If he was wrong about the merits he was not satisfied that the claim would be pursued to its conclusion so as to reduce the existing debt within a reasonable time. He therefore made a bankruptcy order. Dr Mallya appeals those conclusions and the making of the order.

The appeals are based on a combination of the averments that under the 1986 Act the petition debt had to be clearly established, whereas in fact it was not, and in any event there was a disputed debt element in terms of the interest which means that it should not have been taken into account in ascertaining whether a petition debt was due. Mr Watson-Gandy accepted that, given the size of the debt and the quantum involved in the two elements of the appeal, he needed to succeed on both in order to overturn the bankruptcy order; otherwise success on just one would mean that there would still be a debt which could be the subject of a petition.

The position on the Conditionality issue is as follows. It arises from the circumstances in which money and assets, previously the subject of the criminal attachment proceedings, were given over to the banks. An officer called the "Recovery Officer" (an officer of the DRT) made orders restoring to the banks assets of Dr Mallya, UBHL and associated companies which had been subjected to the attachment orders. As part of that process the banks were required to provide bond undertakings (judgment paragraph 23) pursuant to which the banks:

"unconditionally and unequivocally undertake to restore assets or its equivalent value under the PMLA Order dated 24 May 2021, if such restoration is required to be done as per the applicable laws."

The Conditionality issue turns on the effect of the bonds given pursuant to that direction. The judgment below (paragraph 37) records evidence from a bank official to the effect that until the conclusion of the criminal trial of Dr Mallya there was a continuing risk that the relevant tribunal might order the assets to be returned. Accordingly, it was said, the receipt of assets could not be considered permanent in a legal sense. Furthermore, the fate of the moneys was also potentially affected by the fact that various parties, including Dr Mallya, had challenged the restoration orders, and 40 creditors had submitted proofs in the liquidation of UBHL which might lead to the reduction of moneys available to meet the DRT judgment because the liquidator might be able to require the UBHL asset proceeds to be paid to him (paragraph 38).

Based on this material Chief ICCJ Briggs rejected a submission that the payment was absolute and that the bond obligation was purely collateral and independent, and considered that the right way to treat the recoveries was that they were "conditional". By analogy with Smith v Ian Simpson [2001] Ch 253 he considered that such a payment did not go to discharge the debt for the purposes of insolvency proceedings (paragraph 40). It might be the case that if the moneys were ultimately forfeited (after a criminal trial) there would be other claims to it because other persons were also the victims of money laundering activities (paragraph 42), so it was not inevitable that all the forfeited moneys would (if reclaimed under the bond) ultimately find their way back to the banks after a call under the bond(as Dr Mallya seems to have contended). At paragraph 56 he concluded:

"56. As long as Dr. Mallya decides to play no part in the [criminal] trial, therefore, and the court maintains its present position of waiting for his return to the jurisdiction before concluding the matter, and in particular deciding whether the realisations will be allocated to Central Government or others who can demonstrate rights in respect of the seized assets, there is no prospect of payment in full, since it is these assets that Dr. Mallya relies upon for payment."

The reference to Dr Mallya not playing any part in the trial was a reference to the fact that his presence was necessary for a criminal trial, and he had declined to return to India voluntarily. Accordingly, it was his decision to absent himself that was holding up the trial. At the time of the hearing an extradition order had been made (judgment paragraph 33) but it has still not been enforced. Apparently Dr Mallya is still resisting extradition on other bases which have yet to be resolved.

The judge's conclusions on Conditionality are challenged on various bases.

First, Mr Watson-Gandy renewed the submission that the receipt of forfeited assets and the obligation to return them if required were independent of each other such that the receipt of assets by the banks was a discharge of the obligations owed by the owners, and even if the bond were called on and payment made the debt would not be reconstituted. He pointed out that under section 271 of the 1986 Act a petition debt must be:

"a debt which, having become payable at the date of the petition … has been neither paid …" (my emphasis to demonstrate his point).

He submitted that the independence of the receipt (payment) and the bond obligation meant that the debt was paid.

Like the judge below (paragraph 40) I have no hesitation in rejecting that submission. The receipt of the attached assets and the bond are clearly linked, and even if it were the case that the sums would be treated as discharged to any degree, that discharge would be undone if the bond were called on. Any other conclusion on the facts would be absurd.

So the next question is the central one - does the obligation under the bond amount introduce a condition into the receipt such that the banks are entitled to treat the debt as not discharged and then petition in respect of it?

As appears above, Chief ICCJ Briggs relied on precedent in answering this question. In Smith v Ian Simpson the Court of Appeal considered whether tender of a cheque in respect of a debt while a petition was pending could amount to payment which required the dismissal of the petition notwithstanding the provisions of section 284 of the Insolvency Act 1986 under which the payment could have been clawed back. It was held that it did not. Jonathan Parker J based his decision (the lead judgment) on the construction of the Act. At p 253E-F he said:

"Nor, in my judgment, does the express wording of section 271(1) compel the construction contended for by the debtor. The subsection provides that the court shall not make a bankruptcy order unless it is satisfied that the debt "has been neither paid nor secured or compounded for". In my judgment, what the subsection is referring to, when read in context, is a payment which is unconditional in the sense that it is not liable to be avoided in the event that a bankruptcy order is made: that is to say a payment which is not vulnerable to the operation of section 284(1)."

This passage was relied on by the judge as containing reasoning which he could apply. Evans LJ had something to say about conditional payments, in slightly different terms: He said:

"In agreement with Jonathan Parker J, however, I cannot see how a tender which is refused can be regarded as equivalent to payment. "Paid" implies acceptance of the tender, just as securing or compounding the debt requires the creditor's agreement of terms offered by the debtor. A further feature of the present case is that the offer of payment is alleged to have been conditional upon the petition being dismissed by the court. Even if tender was equivalent to payment, this payment could not be unconditional until after the court made its order. For these reasons section 271(1) did not operate directly so as to require the court to dismiss the petition. " (p354G-H)

Mr Watson-Gandy submitted that a statutory clawback was not the same as the obligation under the bond in this case. I agree with that so far as it goes. However, like the judge below I consider that the case is informative when considering whether the banks should be treated as having been "paid" when they received the restored assets. Again like the judge, I do not consider that they should (unless they choose to treat the receipt as payment, which they did not). The inevitable fact that the debt would be due if the bond were called in means that a creditor would not consider himself paid while the bond obligation still existed, and I do not consider that it would be obliged to treat itself as paid. It follows that receipt cannot be treated as an absolute payment so as to give rise to a pro tanto discharge of the debt. It is true that there was no evidence that the received moneys (so far as they were moneys and not assets) were not to be treated as segregated moneys, or moneys held on some form of trust, but nonetheless the banks were under an obligation to pay an equivalent sum if properly called on, and that would mean that the debt is still due at that point. Whatever description one chooses to apply to the receipt ("conditional" or some other term), the debt does not have to be treated as pro tanto discharged. The position is even clearer where assets other than cash were transferred (which was the case). There is no justification for treating that transfer as a pro tanto discharge of the debt - they are assets not cash. It would be anomalous to treat cash differently.

Mr Watson-Gandy took other points in relation to this issue.

First, he relied on a sentence in a judgment of the Prevention of Money Laundering Act Tribunal (dated 24th May 2021) which seemed to suggest that the Enforcement Directorate was relinquishing its rights of confiscation of "the properties". It is not clear what this means, but it does not appear that the court below was shown any evidence that the Directorate had given up its rights under the bond.

Next Mr Watson-Gandy relied on a circularity argument first voiced by Dr Mallya in a witness statement (his 14th). In paragraph 28 of that statement Dr Mallya suggested that the purpose of the bond was in order to enable the Enforcement Directorate to give the assets back to Dr Mallya in the event of his being successful in the criminal proceedings against him. Dr Mallya sought to say that the moneys would come back to the banks by virtue of their "security" over them in any event, so there was no risk in practice of the banks having to make any actual payment under the bond.

This analysis is an over-simplification which assumes some matters and ignores others. First, it assumes that the only purpose of the bond is to enable the Enforcement Directorate to return assets to Dr Mallya (and the others whose assets were forfeited). That is not necessarily the case, and there was no full analysis of what the position might be. It may be, for example, that there are other money laundering claimants who might have claims to the funds in the hands of the Directorate - see the judgment below at paragraph 42. Mr Watson-Gandy's case criticised this statement by Chief ICCJ Briggs as being something that he made up without any evidential basis, but on the material he had it was a legitimate point in demonstrating that the bond point was not as simple as Dr Mallya said it was. Second, it assumes that the banks had a valid form of security, which is not the case (see above). Third, it ignores the challenges to the attachment orders made by the banks themselves (see above).

Next Mr Watson-Gandy took another approbation/reprobation point. He claimed that the banks had given credit for realisations after the petition presentation date. His predecessor's skeleton argument said that following the bond (made as a result of the Restoration Orders) the banks have changed tack, and should not be allowed to do so because that would be approbation and reprobation. I am afraid I do not follow this point The credits relied on were all made before the bond was given, as far as I can see, and Mr Watson-Gandy was unable to demonstrate otherwise. Accordingly if there was a change of tack it was because of a change of circumstances (the bond). There is nothing inconsistent in the banks' behaviour, and this point goes nowhere.

Mr Watson-Gandy's skeleton argument took the point that the judge had previously decided (in the Security judgment) that the banks held security. Accordingly they were entitled to the assets handed over under the Restoration Order, so credit should be given for the value of those assets. There are at least two answers to this point. First, I have held that there was no security. Second, and in any event, that does not take into account the effect of the bond. Whether or not there was security, the bond existed, and presumably the view had been taken that the assets were not automatically to be the subject of security - otherwise the bond would not have been necessary or appropriate. This point does not assist Mr Watson-Gandy.

Accordingly the attempts to undermine the judge's decision on the conditionality point fail. I consider that an appeal based on it has no real prospects of success and would refuse permission to appeal.

That conclusion would be sufficient to make it unnecessary to consider the interest challenge point, because the interest rate point, even if successful, would leave a very substantial petition debt, and Mr Watson-Gandy (as already observed) needs to win on both in order to be able to challenge the bankruptcy order. However, I will consider it since it was argued and since I consider there is a straightforward answer to it.

The point arises out of an averment by Dr Mallya that he has challenged the interest rate element of the debt (which by the time of the petition was very substantial) and it amounted to a disputed debt which would stand in the way of a bankruptcy order. Despite the fact that interest was included in the DRT's order (the rate having been reduced in that order), Dr Mallya launched a challenge to the interest by issuing a writ petition on 10th December 2019. The judgment below (paragraph 11) recorded the evidence that on issue a writ petition is given an issue number, but the court checks to see if procedural requirements have been complied with before it gives a filing number, after which it can be served (it cannot be served before then). The judgment records that no filing number had been given by the date of the bankruptcy order hearing, and I was told (without contradiction) that it had still not been given by the date of this appeal several years later; therefore service had not been effected. The grounds for the challenge were not fully canvassed before me, and it is not necessary to consider them, but they apparently include an averment that it would be wrong to allow interest after the dates of the attachment orders because those orders arose as a result of applications by the banks who thereby obstructed payment.

Before the judge and on this appeal, Dr Mallya argued that the interest element of the petition debt was a disputed debt. The judge accepted that the interest rate proceedings were an afterthought because they were not mentioned in the registration proceedings or the notice of opposition to the petition, were mentioned only in passing just before the first hearing, were not served and had not seriously been foreshadowed in the multiplicity of proceedings and appeals in India (paragraph 44). These are all justifiable grounds for the judge's view that they were an afterthought.

At paragraphs 47ff the judge "discounted" the interest rate claim. The failure to serve was a strong indicator that the challenge would not proceed at all, would not succeed in reducing the petition debt and (if proceeded with at all) would not be successful within a reasonable period of time. Further, he considered expert evidence on the merits of the claim provided by Justice Verma for Dr Mallya and Justice Gowda for the petitioners and preferred the latter which provided "convincing reasons to at least doubt the merits of the interest rate challenge", for reasons that he set out (paragraph 48). In paragraph 49 he concluded:

" 49. These factors, coupled with the known fact that the writ has not been served after three or more years brings me to the conclusion that it is more likely than not that the reasons for failure to serve are connected with a lack of merit when measured against the threshold test, despite it now being said that Dr. Mallya will prosecute the interest rate claim with all due diligence if the court so requires. If I am wrong about the conclusion on the merits, I am not satisfied that the writ will be pursued to conclusion so as to reduce the existing debt within a reasonable time. The debt is present, liquidated and outstanding."

Paragraph 50 refers to there being no current challenge to the DRT judgment, and to the principle that the bankruptcy court should not go behind a judgment debt at the hearing of the petition. In paragraph 58 the judge considered that "the evidence of the interest rate challenge is weak and insubstantial". He fed this through into a consideration of whether to make a bankruptcy order in paragraph 60 where he said:

"It is for Dr Mallya to demonstrate to the satisfaction of the court that he is able to pay in full within a reasonable period of time. His reliance on setting aside the interest rate element of the DRT judgment where it has not been served, and giving no time frame to consider, does not pass the test of satisfying the court that the debt will be paid within a reasonable period of time"

Based on that conclusion, and his reasoning on the conditionality point and more generally, the judge considered a bankruptcy order should be made.

Mr Watson-Gandy criticised the judge's conclusion on the Interest Rate point and its significance on various bases. He submitted that the judge should have considered whether there was a triable issue on the point and found that there was. He should not have conducted what Mr Watson-Gandy described as a mini-trial on the point, and should have taken into account that Justice Verma considered that there was a fairly good chance of success on the premise underlying the interest rate claim in India, namely that equals should be treated equally. In his predecessor's skeleton argument it was said that the judge was wrong to disregard expert evidence about the absence of merit in the Interest Rate claim and should not have inferred that it lacked merit. There was an explanation for the delay – the pandemic and constraints placed on Dr Mallya's ability to pay legal costs, and Dr Mallya had undertaken to pursue the interest rate challenge with diligence.

Mr Beswetherick submitted that the judge carried out an evaluation that he was entitled to carry out and reached a conclusion which he was entitled to reach. The petition was based on a judgment debt and the outstanding interest challenge was not a challenge based on the premise that the debt was not due; rather, it was a challenge which, properly formulated, could only give rise to a proposal to adjourn the petition to allow the challenge to take place, but that was a discretionary factor and the judge was entitled to reach the conclusion that he would not adjourn (which he did).

I consider that Mr Beswetherick is correct in his analysis and his conclusions. The judge was entitled to take the view that he took in relation to the interest rate challenge, both as to its lack of merit and as to the difficulty it faced when set against the fact that there was a judgment debt. A challenge which has not even got as far as full issuing, let alone service (a state of affairs which was still true at the time of the hearing of this appeal) is not one which has obvious merit, and in any event its presence would require no more than an adjournment, if anything, and not a dismissal of the petition. The judge considered that this challenge, along with the other challenges with which he dealt, did not lead to the conclusion that the petition debt would be paid within a reasonable time, so there was no reason to dismiss or adjourn. His paragraph 60, part of which I have cited above, continued:

"This is also true in respect of the challenge to the personal guarantee. The receipts of monies from realisations in India are conditional. There is no time frame as to when the petitioners will be able to retain those receipts unconditionally. There is no evidence that Dr. Mallya will return to India to deal with the criminal trial. The petitioners have the benefit of a judgment debt which has been outstanding for a long time. As matters stand, since the service of the statutory demand, Dr Mallya is deemed insolvent"

And his judgment went on:

"61. Although it has been said that the debt will be paid within a reasonable period of time, it has not been put to the court what period constitutes reasonable. Given the length of time since the first hearing, I conclude that there is insufficient evidence to support unconditional payment within a reasonable period of time"

Accordingly there is nothing in the Interest Rate point, and I would refuse permission to appeal on it.

Conclusion

In the circumstances:

i) I allow the petitioners' appeal in relation to the security point.

ii) I refuse Dr Mallya's permission to appeal on the other appeals.

The bottom line in relation to this is that the bankruptcy order stands.

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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> State Bank of India & Ors v Mallya [2025] EWHC 858 (Ch) (09 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/858.html Cite as: [2025] EWHC 858 (Ch)

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		9 April 2025