Super Max Offshore Holdings & Anor v Malhotra [2020] EWHC 1023 (Comm)

"(1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth."

"16.2 The court may waive any procedural defect in the commencement or conduct of a committal application if satisfied that no injustice has been caused to the respondent by the defect."

“Sameer Khan is there under my instruction to curb the mess made ofthe Indian market by [AM] and yourself." It was presented as though the Defendant had appointed SK as National Sales Head (India) on 19 December (i.e. before the Picken Order) by a contract carrying that date (providing for an annual salary of INR 100, 000,000 and ostensibly signed on that date by SK and Mr Rajib Kumar. However it is plain that that is another example of backdating; Ms Bhattacharjee, after discussing on 20 December a draft with Mr Wagh, by reference to using Mr Abraham’s contract with appropriate adjustments, supplied a draft (with a then proposed salary of only INR 90,000,000), said to contain outstanding queries, for Mr Wagh's consideration on 21 December; and on 23 December she sent an email to Mr Kumar (one of the signatories of the ‘contract’ dated four days earlier): “This is the service agreement of Sameer Khan, which we are yet to roll out. I believe there are salary differences, due to which the process is delayed. As next week I won’t be around, please refer the same for any changes”

“New joinee: Sameer Khan – confidentiality maintained for his onboarding, just got the approval from [the Defendant]", to which Mr Wagh responded on the same day, confirming its confidentiality. It would seem therefore that, with the approval of the Defendant, the contract ostensibly dated and signed 19 December was in fact agreed and executed on 3 January. Then, by a letter dated 5 January 2017, Mr Kumar wrote to SK to say that “Effective immediately it has been decided that you will no longer be working as NSM – Wholesale India… In view of this you have been assigned with a new role in the Special Projects. Therefore you are re-designated as “VP-Special Projects “reporting directly to the Gr[oup] Chairman. You are therefore advised not to interact with Sales Person[nel] as discussed earlier. All other terms & conditions of your appointment will remain same”

“(1) On 16 January 2017, Mr Sameer Khan (a Group employee at the time) emailed the Defendant's personal email address (rockeek@gmail.com) from his own personal email address (sameer_hll2003@yahoo.com) attaching information about Indian cyber-crime law. In May 2017, bogus criminal complaints were filed by people closely associated with the Defendant against two Group employees alleging hacking crimes. It is to be inferred that on a date between the making of the Second Baker Order and Mr Khan's email, the Defendant solicited the information on Indian cyber-crime law from Mr Khan (thereby communicating directly with a Relevant Employee in breach of Clause 2 of the Second Baker Order). (2) On 25 January 2017, Mr Khan sent a second email to the Defendant (using their personal email addresses), attaching documents and analysis relating to the Supermax business. It is to be inferred that on a date between the making of the Second Baker Order and Mr Khan's email, the Defendant solicited this information from Mr Khan (thereby communicating directly with a Relevant Employee in breach of Clause 2 of the Second Baker Order). (3) On 1 February 2017, Mr Khan sent a third email to the Defendant (using their personal email addresses) attaching documents and analysis relating to the Supermax business. It is to be inferred that on a date between the making of the Males Order and Mr Khan's email, the Defendant solicited this information from Mr Khan (thereby communicating directly with a Relevant Employee in breach of Clause 3 of the Males Order). (4) On 4 February 2017, Mr Khan sent a fourth email to the Defendant (using their personal email addresses) attaching documents and analysis relating to the Supermax business. It is to be inferred that on a date between the making of the Males Order and Mr Khan's email, the Defendant solicited this information from Mr Khan (thereby communicating directly with a Relevant Employee in breach of Clause 3 of the Males Order). (5) On 6 February 2017 Mr Khan sent a fifth email to the Defendant (using their personal email addresses) attaching documents and analysis relating to the Supermax business. It is to be inferred that on a date between the making of the Males Order and Mr Khan's email, the Defendant solicited this information from Mr Khan (thereby communicating directly with a Relevant Employee in breach of Clause 3 of the Males Order).”

“50 (9) Mr Sameer Khan. He was rehired by Mr Malhotra as head of wholesale sales in India in circumstances addressed more fully below. He was a thoroughly unsatisfactory witness whose answers often lacked credibility and were inconsistent with contemporaneous documents. He was genuinely opposed to the management strategy (which had been approved by the Advisory Board) to rebalance sales more in favour of retail outlets, including barbers, from the predominantly wholesale model previously pursued. This was not, however, his guiding motivation. He was plainly loyal to Mr Malhotra, which was the reason for his engagement in December 2016, and was prepared to say in evidence whatever be believed would support Mr Malhotra's case, even when he knew it to be untrue. …. 89 (5) Mr Khan's continuing operational role is apparent not only from what he did, but also from Mr Malhotra's email to Mr Abraham of 3 January 2017. On 2 January 2017 Mr Abraham had received an email from Datta K enclosing sensitive stocklist target incentive and price list information which he had copied to Mr Khan. Mr Abraham had also learned around this time that Datta K and Mr Kulkarni had been setting up calls for Mr Khan with the field sales team. When he instructed them to stop such actions immediately, instead of following his directive they copied the email to Mr Khan and thence to Mr Malhotra who replied to Mr Abraham on 3 January, copied to Messrs Khan, Datta K and Kulkarni (and later much more widely distributed by them lower down the sales force) that "Sameer Khan is there under my instruction to curb the mess made of the market by Anindo and yourself". I have already referred to the undermining effect of this email and what it went on to say, but its significance in the present context is that it reveals Mr Malhotra's instructions as to the role which Mr Khan was to play, which was an operational one as a counter to the management decisions of Mr Abraham and Mr Anindo Mukherji. (6) I reject Mr Malhotra's evidence that he changed Mr Khan's role in early January because he did not want it to trespass on either the role of the wholesale sales team or Mr Anindo Mukherji's work and that it was "an audit type function gathering information not interfering with reporting lines." There is a letter dated 5 January 2017 purporting to change Mr Khan's title to VP Special Projects Division. The evidence suggests that it was backdated from 12 January 2017 or thereafter. Whenever the change in title occurred, it did not stop Mr Khan from carrying out his brief to undermine Mr Anindo Mukherji and Mr Abraham. He continued to report directly to Mr Malhotra so that Mr Abraham remained sidelined and undermined. On 5 January 2017 Mr Khan coordinated a series of emails from senior sales managers to Mr Malhotra denigrating current management and/or praising Mr Khan and attributing their success to him. These were procured at Mr Malhotra's instigation for him to forward to the board. Mr Khan continued to occupy his old office at Thane and regularly interacted with Datta K and Mr Kulkarni who told Mr Abraham that they felt that they could not refuse instructions from Mr Malhotra when he instructed them to assist Mr Khan. Mr Khan was responsible for preparing, at Mr Malhotra's behest, four documents entitled "value destruction" reports which purported to show the adverse effect which the senior management had had on sales. These were provided to Mr Malhotra on 9 January 2017 for him to include in the papers for the next Advisory Board meeting, which he did without identifying their author. By the very use of the title "value destruction", both Mr Malhotra and Mr Khan intended them to undermine Mr Anindo Mukherji and Mr Abraham. A further "value destruction" report was sent by Mr Khan to Mr Malhotra on 10 January 2017 and on for Advisory Board consideration. On 1 February 2017 Mr Khan forwarded to Mr Malhotra what purported to be three letters of complaint from wholesalers. These had been procured by Mr Khan as part of the role assigned by Mr Malhotra which was to provide evidence which Mr Malhotra could use against senior management. They had been backdated to early January and were, as Mr Khan knew, spurious. On 6 February 2017, for the same purposes, Mr Khan orchestrated a series of letters from distributors addressed to Mr Malhotra which were critical of Mr Abraham and praised Mr Khan. These were backdated to 19 and 20 December 2016 and sent to Mr Malhotra, at his private email address, by Mr Khan, from his private email address, on 6 February 2017, notwithstanding that they purported to be addressed to Mr Malhotra, not Mr Khan. Again they were spurious. Mr Abraham's evidence, which I accept, is that although Mr Khan's role means that in theory none of the sales force report to him, in practice he sits in the middle of the team who have worked with him in the past, with Mr Abraham and Mr Anindo Mukherji locked out. Many of the sales force have told Mr Abraham that it is difficult to refuse to carry out Mr Khan's instructions because he has the authority of Mr Malhotra, and there have been multiple instances where Mr Abraham was able to track disruptions in the field back to Mr Khan. …. 91. I conclude that Mr Khan's continuing disruption was part of the continuing attempt by Mr Malhotra to impose his own strategy on the business in parallel to the management which Mr Anindo Mukherji and Mr Abraham have been trying to carry through. It is inconceivable that Mr Khan would continue to behave in this way without Mr Malhotra's approval and authority. It is not necessary to decide whether this is as a result of direct communication between the two, or whether others such as Mr Chaudhuri have been involved, as they clearly were in the past. … 102. Ms Bingham also relied upon the fact that Mr Malhotra forwarded to the board a series of 10 emails sent to him on 5 January 2017 from senior employees criticising current management and/or praising the efforts and success of Mr Khan. These were sent to Mr Malhotra within the space of a few hours. I reject his evidence that they were unsolicited. His explanation that the employees happened to have been talking amongst themselves because they were "tickled pink at the upbeat of the sales" is improbable. I conclude that he procured these messages, through Mr Khan, as part of the campaign to justify Mr Khan's appointment and exaggerate its effect, with the same motives as the misleading 41% growth email. This is of a piece with his procuring emails from customers and distributors through Mr Khan in February 2017, to which I have referred above.”

“(10) On 5 September 2017, the Defendant's personal adviser, Mr Subhash Chaudhuri, acting on the Defendant's behalf and at his direction, accidently sent a WhatsApp message to Ashish Balan (a Group employee) which was intended for Nitin Merani (a nominee director on the Group company boards) who previously had custody of the company issued phone to which the message was sent (thereby communicating indirectly with Relevant Employees in breach of Clause 2 of the First Popplewell Order. (By amendment]For theavoidance of doubt, Mr Chaudhuri was thereby actingas agent of theDefendant and/or on his behalf or on his instructions or with hisencouragement, and within the scope of the authority conferred by him. Hisaction is, accordingly, to be imputed to, and entails a breach of Clause 2 of the First Popplewell Order by, the Defendant personally.”

“51... Mr Malhotra engaged Mr Chaudhuri as a consultant to handle all his personal litigation in India and "any assignments/tasks that I may allocate to you from time to time". It is clear from the evidence as a whole and from disclosed telephone records in particular, that Mr Chaudhuri's role as a loyal personal assistant to Mr Malhotra included frequent contacts with Mr Khan, Mr Wagh and others within the group who were loyal to Mr Malhotra, at times when the events in dispute in these proceedings must have been being discussed. Mr Chaudhuri was a go-between, through whom Mr Malhotra communicated with others when he wished to conceal his direct involvement. Mr Chaudhuri's evidence on the course of events which are in issue would have been relevant to the issues in the case. He was not called to give evidence by Mr Malhotra and disclosed no documents. I have little doubt that he would have been prepared to do so out of loyalty to Mr Malhotra had Mr Malhotra wished him to give evidence and/or provide documents within his control, including phone and messaging records. The natural inference is that his evidence would not stand up to cross examination and would undermine Mr Malhotra's.”

“Stupid incompetent fat mallu slob”: “Idiot”: on 20 March: “You make a fool of yourself you don’t know your business: you fat incompetent dick: moron”: on 21 March: “you are an incompetent third class salesman that got a job you don’t deserve by fraud… you are a petty crook and will get what you deserve you overweight slob”: “You picked the wrong guy to fight with you obese mallu”: “Dear fat mallu stop talking out of your fat ass: you are a failure and a loser and will end on the street: U are not a ceo, just a fat mallu Gandu”; “You successfully screwed up the business I built you idiot”: “Your two arsehole friends [Balan] and [Rawat] screwed up Wesley”: “Bunch of losers will deal with each of you: fat mallu idiot”: “You buggered up all product launches you monkey…. you are such a moron: I [will] bankrupt you u dickhead: the noose tightens you mallu idiot.” (2) [17-18] to Mr Desai on 21–22 March 2018: “You are fast asleep: wake up please:” “Idiot you need to reply”

“Stupid cunt: waiting to see your ugly face you short shut head: you and your lover Andy [AM] come and destroy the company I made I will now destroy you you little fart: you think I’m a bully you fuckhead! Wait till you see how I’ll screw your happiness you little shit:” “Jackass: you made this personal now sit back and enjoy the rest of your fucked life you incompetent oaf”: “You need to respond you inefficient idiot”. (3) [19-20] to AM on 22 March 2018 … “Your CFO Desai is fast asleep and unresponsive. The board needs to see how much further damage you have done to the company under your pathetic leadership urgently”:.. “And do not fudge figures in your usual fraudulent manner to cover up your incompetence and mislead the board”: … “Overpaid lazy incompetent failure”:.. “You idiots and Actis have screwed up: You will pay my friend, I guarantee you that: You ungrateful wretch:” “I’m coming after you in every court: idiot”: “No wonder General Mills kicked you out you moron”: “You have me to deal with you son of a bitch your nightmare has just begun.”

“You idiot you have messed up the Nigerian business!! And the UAE business: What are you stupid or on a destructive mission”: “Stupid is me and Actis as you take your salary and fuck up the company”: “I created a brand as a business and a useless dickhead like you is destroying it: “Looking forward to seeing you you disgusting piece of shit:” “I will crush you”: “U picked the wrong guy to make an enemy of”. (4) [21-22]to Mr Sreeram on 23 March 2018 “In life pick your friends well and choose your enemies carefully”: “It’s obvious you don’t know your business or the costings.” (5) [8} To SM on 29 January 2018 “Arrest warrant for you in Dubai you Bengali bastard dwarf. Come show your face you motherfucker.” (6) [also 8] to Mr Mateen (by email) on 28 February 2018: “Mateen you are indeed a corrupt two-faced waste of space and people like you give our communities a bad reputation. I know the board of Ormond Street very well and shall have no hesitation of making my views of you well known. No wonder you were sacked by Unilever as an audit guy at age fifty. With good reason.”

“Please see attached by way of service sealed orders as just received from the court. Please indicate whether this suffices for service on your client, or whether we are to email Mr Malhotradirectly.”

“He has been really on a mission to threaten us and intimidate us. That is obviously very clear. I have had to really gather my team together, because my team, unfortunately, experienced the same abuse, sometimes worse, and every time I have had to huddle with them and have had to bind them together to stay in.” (Day 3:168). Further at Day 3:169 he said: “Nobody likes to receive these kind of messages… It was very unfortunate that it came sometime in the middle of the night and my wife woke up and saw the messages and she was all over me telling me: “Get out of this place”

“In all the companies that I have worked in…name-calling is not something I’ve ever experienced in my 30 years of working, except in the March of 2018” (Day 3:199), and at Day 3:201 he said: “A That is how [SM] may have looked at it. I didn’t look at it that way. Q What did you look at it like? A Terrible.”

“...the victimisation of a witness is a contempt of court and unlawful, irrespective of whether other people get to know of it or not. It is a gross affront to the dignity and authority of the court and a grievous wrong to the individual affected.”

“51 (6) Mr Malhotra. He regarded the group as his family business and in his eyes, Mr Anindo Mukherji and Actis have destroyed the value of the group. From the second half of 2016 Mr Malhotra believed, with a genuine and heartfelt passion, that Actis' support for the existing senior management, in particular for Mr Anindo Mukherji, was not in the best interests of the financial health of the group and that he needed to step in to reverse the decline in its fortunes. That passion was apparent throughout his evidence. It clouded his judgment at the time, and infected his evidence, to the extent that he lacked any objectivity or regard for the truth when seeking to portray events in a selfjustificatory way and in an attempt to put Actis representatives and the senior management in the worst light. He would readily attribute fraud, dishonesty or conspiracy to such individuals without any justification. In significant respects he was not prepared to concede the obvious and maintained aspects of his account of events which were contradicted by the contemporaneous documents. His intemperance and bullying manner is clear from a number of the communications he sent. It was apparent that in a number of respects he was not being frank with the court, and at times his evidence was deliberately evasive. I have been driven to the conclusion that in important respects what he said was untrue and deliberately so.”

“(11). On 25 September 2017 the Defendant, through his agent and accomplice Mr Kishor Wagh, procured, instigated or approved the filing of false criminal complaints in Dubai against Mr Mukherji (the Group CEO), Mr Ketan Desai (the Group CFO) and Mr Milind Khamkar (the Group CIO), which were calculated and/or likely to put pressure on Messrs Muhkherji, Desai and Khamkar to resign (thereby taking steps to procure the removal of the Group CEO and Relevant Employees in breach of Clause 3 of the First Baker Order). (12). On 28 September 2017 the Defendant, through his agent and accomplice Mr Ahmad Awwad, instigated or approved the filing of a false criminal complaint in Dubai against Mr Desai which was calculated and/or likely to put pressure on Mr Desai to resign (thereby taking steps to procure the removal of a Relevant Employee in breach of Clause 3 of the First Baker Order). 2. The trial of liability in the Super-Max Case took place between 16 and 26 October 2017 before Mr Justice Popplewell in the High Court in London. Mr Anindo Mukherji (CEO of the Super-Max Group) and Mr Ketan Desai (CFO of the Super-Max Group) were due to give evidence on behalf of the Claimant and Additional Defendant at the trial. Also due to testify were Messrs Kenny Abraham, Shomik Mukherjee and Akhter Mateen. 3. On or around 17 - 25 September 2017 (being shortly before the trial was due to commence) the Defendant procured, by his agents and accomplices Messrs Kishor Wagh and Ahmad Awwad, that there were lodged with the police authorities in Dubai three criminal complaints against Messrs Mukherji and Desai. 4. The criminal complaints in question centred on allegations (a) that Mr Mukherji had made fraudulent expense claims, (b) that Mr Desai had facilitated the reimbursement of those claims and (c) that Mr Desai had stolen a company-issued laptop and iPhone (the "Criminal Complaints"). 5.The Defendant well knew that the Criminal Complaints and each of them were wholly without substance or foundation in fact and that it is standard practice for the police authorities in Dubai to confiscate the passports of individuals who are the subject of criminal investigations. 6. The Defendant procured the making of the Criminal Complaints (a) with the intention of deterring Messrs Mukherji and Desai from testifying in the SuperMax Case/ intimidating them into the withdrawal of their evidence and (b) with the intention of obstructing their attendance at trial. 7. Mr Desai was required to relinquish his passport to the Dubai police on 25 September 2017 and was as a consequence unable to travel to London to give evidence in person at the trial (instead giving evidence by video link following an eleventh hour application for permission to do so). Mr Mukherji succeeded in resisting the confiscation of his passport because it happened to be at the Canadian Embassy for the processing of a visa application and he was accordingly able to travel to London to testify. 9. The Claimant seeks the Court's permission pursuant to CPR rule 81.14 to make a committal application against the Defendant in relation to his interference with the due administration of justice in the case of Super-Max Offshore Holdings (Claimant) and Rakesh Malhotra (Defendant/Additional Claimant) and Actis Consumer Grooming Products Limited (Additional Defendant), claim number CL-2016-000797 (the "Super-Max Case").”

“50 (10) Mr Kishor Wagh. He has been the group Global Head of Human Resources since 2011, working from the Dubai offices. He too was a thoroughly unsatisfactory witness who showed no apparent embarrassment when in cross examination his evidence was repeatedly shown to be inconsistent with contemporaneous documents. These were not errors of recollection. He was at the time of the events in question, and remains, staunchly loyal to Mr Malhotra, and was prepared to lie in his evidence in the belief that it would assist Mr Malhotra's case.”

“I am surprised by this communication, particularly as this has never been broughtup during the last 2 years. You have been aware of most of my business travel and have, in fact, joined me on many occasions,” referring to the Group’s travel policy. The Defendant sent on this response to Mr Wagh. He responded on 2 January: “This just illustrates your flippant attitude. Any professional with afailed track record such as yours would not be wasting company money to set an example to others.”

“72. On 2 January 2017, Mr Malhotra sent Mr Mukherji a long email in aggressive and intimidatory terms. It was in the context of a dispute over procedure in relation to approval of business travel expenses, which Mr Malhotra had raised as a pretext on which to attack Mr Mukherji, but the email was abusive and disparaging in wider and more general terms, accusing him amongst other things of "value destruction" "incompetence" "a failed track record" "wasting company money" and "a flippant attitude". It was copied to Mr Desai and a more junior member of the finance department.”

“(1) A person shall be held liable for an unlawful exercise of his rights. (2) The exercise of a right shall be unlawful: (a) if there is an intentional infringement (of another’s rights) …… (c) if the interests desired are disproportionate to the harm that will be suffered by others; or (d) if it exceeds the bounds of usage and custom.”

“Whoever has knowledge of the perpetration of a crime, that the public prosecution could prosecute and file an action without being asked to do so through a complaint or request, must report this to the public prosecution or one of the judicial police officers.”

“Any person who has knowledge of a crime, yet fails to report such matter to competent authorities, shall be punished by jail sentence for no more than one year or a fine.”