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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Citicorp International Ltd v Shiv -Vani Oil & Gas Exploration Services Ltd [2014] EWHC 245 (Comm) (11 February 2014) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2014/245.html Cite as: [2014] EWHC 245 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Citicorp International Limited |
Claimant |
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- and - |
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Shiv-Vani Oil & Gas Exploration Services Limited |
Defendant |
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Stuart Cakebread and Duncan
Macpherson (instructed by Zaiwalla & Co) for the defendant.
Hearing date: 29 January 2014
____________________
Crown Copyright ©
Mr Justice Andrew Smith:
"The courts of England and Wales are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Trust Deed, the Agency Agreement, the Conditions or the Bonds and accordingly any legal action or proceedings arising out of or in connection with this Trust Deed, the Conditions or the Bonds ("Proceedings") may be brought in such courts. The Issuer irrevocably submits to the jurisdiction of such courts and waives any objections to Proceedings in such courts on the grounds of venue or on the ground that the Proceedings have been brought in an inconvenient forum. This submission is for the benefit of the Trustee and the Agents shall not limit the right on any of them to take Proceedings in any other court of competent jurisdiction nor shall the taking of Proceedings in any one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction (whether concurrently or not)."
The trust deed also provides that Shiv-Vani irrevocably appoint Law Debenture Services Limited ("Law Debenture") as its authorised agent for service of process in England.
i) Shiv-Vani would comply with, perform and observe the provisions of the trust deed and the "Conditions"; and
ii) Citicorp would be entitled to enforce the obligations of Shiv-Vani under the bonds and the Conditions as if they were set out and contained in the trust deed, which should be read and construed as one document with the bonds.
i) That the bonds bear interest at 5% pa in arrears payable semi-annually on 16 January and 16 July each year;
ii) That default interest accrue on any overdue sums on a daily basis of 5% pa; and
iii) That a failure by Shiv-Vani to pay any interest when due was an Event of Default, and following an Event of Default Citicorp might give notice that the bonds were immediately due and repayable in an amount described as the Accreted Redemption Amount. The conditions stipulate how the Accreted Redemption Amount should be calculated.
iv) That the bonds, the trust deed, an associated agency agreement and "any non-contractual obligations arising out of or in connection with them are governed by, and are to be construed in accordance with, the laws of England. In relation to any legal action or proceedings arising out of or in connection with them, [Shiv-Vani] has in the Trust Deed irrevocably submitted to the courts of England and in relation thereto has appointed [Law Debenture] as its agent for service of process in England."
"Under current conditions of the RBI [sc. Reserve Bank of India] applicable to convertible bonds, [Shiv-Vani] would require the prior approval of the RBI before repaying the Bonds before 17 August 2015, including redemptions pursuant to [specified conditions] or acceleration following an event of default prior to 17 August 2015, and such approval may or may not be forthcoming."
i) That Shiv-Vani was prevented from paying the interest in July 2013 by an "unforeseen and unforeseeable act" of the Indian Service Tax Department, who directed its clients to remit directly (and not via Shiv-Vani) tax due on its invoices, and that as a result it was "commercially impossible" for Shiv-Vani "to fulfil its contractual obligation under the Trust deed on time".
ii) That he understood that ICICI London, the holder of 10% of the bonds, opposed these proceedings; and that on 12 December 2013 Shiv-Vani had sought details of the bondholders to determine whether they supported the litigation and awaited a response.