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1. I am John Smith from Collaws LLP. We represent the claimant, Nesbo Gas PLC.
2. The Claimant is an English company that supplies natural gas to industrial entities worldwide.
3. The Defendant is a natural gas company based in Indian company. It is represented by Swallows & Co LLP.
4. This is a dispute regarding enforcement of a Bank Guarantee under a Joint Venture Agreement dated 16 May 2016 (“JVA”) between the parties.
5. Pursuant to the Civil Procedural Rules, Part 24, the Claimant respectfully moves this Court for entry of an Order granting summary judgment in its favour by seeking enforcement of the contract entered into by the parties.
6. This motion is based upon the pleadings on file, all of which are filed in support of this motion. The relevant testimony and exhibits are included in support of this motion. They are attached as follows:
i. Joint Venture Agreement of 16 May 2016 (Appendix A)
ii. Application notice of 8 January 2021(Appendix B)
iii. Witness Statement of Hermann Maier of 8 January 2021 (Appendix C)
iv. Witness Statement of Paul Ezra of 15 January 2021 (Appendix D)
v. Particulars of Claim of 11 December 2020 (Appendix E)
vi. Defence of 11 January 2021 to the Particulars of Claim (Appendix F)
7. The evidence submitted along with this motion will demonstrate that the Defendant does not have any genuine issue of material fact with respect to Claimant’s cause of action, save for the amount of Claimant’s reasonable and necessary attorney’s fees.
8. The evidence submitted will establish that the JVA of 16 May 2016 between the Claimant and the Defendant is a valid and enforceable contract.
9. Defendant’s negative defence of lack of intent to enforce indemnity clause 19(b) of JVA at paragraph 4 of the Defence of 11 January 2021 is without any conceivable merit as a matter of law.
i. As a matter of law, the signing of the JVA on 16 May 2016 and the subsequently availing the loan from Metrobank by signing the loan agreement of 1 July 2016 are evidence of ratifying the JVA.
ii. The defence under paragraph 5 of the Defence does not have any conceivable merit. The meeting on 11 June 2018 was held shortly before the first instalment of the loan was due payment. Dr Maier of the Claimant and Sir Lancelot Ezra of the Defendant discussed has discussed about the repayment process.
iii. At no time, neither there was any agreement between the Dr Maier and Sir Lancelot Ezra that clause 19(b) would not be enforceable nor Dr Maier indicated or specified about clause 19(b) to that effect.
iv. As a matter of law, the Defendant is estopped from denying the validity of the JVA, particularly clause 19(b). It defence under paragraph 11 is not of conceivable merit.
9. As a matter of law, the Defendant must indemnify the Claimant of the Guaranteed Sum of £6,322,440 paid to Metrobank.
10. As a matter of law, the Defendant’s defence under paragraph 12 that it was entitled to treat the JVA as terminated does not have any merit.
i. Each of the parties was required to serve the other party a six month prior notice of termination. The Claimant’s announcement on 13 April 2020 in the London Stock Exchange does not constitute a notice to terminate under the JVA, clause 29.
ii. The letter from the Defendant 13 April 2020 through their solicitors, Swallows & Co LLP treating the Claimant’s announcement in the London Stock Exchange and immediately terminating the JVA is a breach of JVA, clause 29 notice requirement.
iii. By the letter, the Defendant released itself of the JVA obligations and liabilities. This act and the following conduct of not paying the loan instalment and non-indemnification of the Claimant of the Guaranteed sum constitute a breach of the JVA.
11. As a matter of law, the Defendant does not have any real prospect of successfully defending this claim and no other compelling reason of why the case should be disposed of at a trial. The Claimant, hence, moves this court for a summary judgment.
12. By the JVA between the parties to upgrade the Defendant’s gas plant and develop new gas pipelines in India, the Claimant agreed to act as a guarantor for the Defendant against a loan from Metrobank S.A. for the sum of £10 million. The Loan Agreement was entered dated 1 July 2016.
13. In April 2020, the Claimant announced in the London Stock Exchange to terminate the JVA.
14. On 26 June 2020, the Defendant notified Metrobank of its intention not to make further repayment of the loan. The Defendant had already paid the first two instalments of £2 million plus interest on 1 July 2018 and 1 July 2019.
15. As the Claimant was the guarantor of the Defendant, as per the written deed of guarantee to Metrobank of 1 July 2016, the Claimant paid to Metrobank on 6 August 2020 the sum of £6,322,440 (“Guarantee Sum”) upon the bank’s demand.
16. According to the JVA, indemnity Clause 19 (b), the Claimant demanded from the Defendant payment of the Guarantee Sum through a telephone call on 7 August 2020, which was refused and through a letter on 17 August 2020, which was not responded.
17. The Defendant’s refusal and non-recognition of the Claimant’s demand of payment of the Guarantee sum constitutes a clear violation of the JVA. Therefore, the Claimant has brought this action for the breach of the contract seeking damages and specific performance of the JVA.
18. JVA of 16 May 2016 (Appendix A) signed between the Claimant and the Defendant is a valid and enforceable contract.
19. Based on clause 19(a) that requires the Complainant to act as guarantor of any loan provided to the Defendant, the Complainant gave Metrobank a written deed of guarantee of 1 July 2016. Paragraph 5 of Witness Statement of Paul Ezra of 15 January 2021 (Appendix D) also verifies this term as well that JVA was entered to formalise the relationship between the parties.
20. Consequently, the Defendant signed a loan agreement with Metrobank on 1 July 2016 and was released a loan sum of £10 million on the same date.
Hence, the JVA was ratified by the Defendant and is a valid and enforceable contract.
21. The formal requirement of a guarantee clause or accountability for a debt default is provided under the Statute of Frauds (1677), Section IV.
22. This Act of 1677 provides that no action can be brought against a defendant upon a special promise to answer to a debt default or miscarriages of another person unless there is a form written agreement, memorandum or a note. This formality requirement is supported by the decision of the House of Lords in Elpis Maritime Co v Marti Chartering Co (The Maria D) ([1991 2 Lloyd’s Rep 311)).
23. Any agreement, note or memorandum must also be signed by the party to be charged or the authorised agent. In The Liverpoll Bourough Bank v Thomas Eccles, Richard Eccles (1859) Hurl & N 139, it was held that there is, however, no requirement that it must also be signed by the other contracting party.
24. The time a guarantor pays the beneficiary under the terms of a guarantee, the guarantor is entitled to claim indemnity from the principal subject to the condition that the guarantee was given at the principal's request.
25. In this case, the JVA and the deed of guarantee are signed documents, which meet the formality requirements of Statute of Frauds (1677), Section IV.
26. Claimant had paid the Guarantee sum of £6,322,440 to Metrobank on 6 August 2020. Defedant’s refusal to indemnify the Claimant for sums paid as a guarantor breaches JVA, clause 19(b).
27. The Defendant’s defence that clause 19(b) was never intended to be enforced is based on the 11 June 2018 meeting at Calcutta between Dr Maier of the Claimant and the late Sir Lancelot Ezra of the Defendant.
28. The Defendant has referred to a meeting note dated 16 June 2017 (exhibited PE1 in Witness Statement of Paul Ezra of 15 January 2021 (Appendix D). The Claimant does not have any record of this. The Claimant at any time during the meeting did not agree that Clause 19(b) of JVA would not be enforceable.
29. The meeting note exhibited PE1 is not signed by the Claimant and hence, does not meet the formality requirement of Section IV of Act of 1677. Hence, the defence of non-enforceability of Clause 19(b) does not have any conceivable merit as a matter of law.
Hence, the Claimant has right to enforce the guarantee clause 19(b) under the JVA.
THE CLAIMANT, THEREFORE, prays that this motion be set for hearing and that, upon hearing, summary judgment should be granted.
The Claimant prays for summary judgment on all of the following uses, collectively or in the individually: i) that the Defendant breached the JVA; ii) that its defence of lack of intention to enforce clause 19(b) does not have any legal merit; and iii) the Claimant must be paid liquidated damages for the breach of the JVA, plus costs and legal fees.
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