“[The properties in question], emanating from William’s estate, were part of a larger holding which had already been partially disposed of. They consisted of 13 separate flats in two adjacent streets and were in appalling condition. Most were empty and the rest had sitting tenants in occupation. They were all subject to, or would be subject to, Housing Act Notices. They were virtually unsaleable and Neil and William’s estate, which Subhash was aware of, could not afford to renovate them into a saleable condition.”
“don’t worry, I will sort it out”
“Dear brother Subhash, Kiranbhabhi (sister-in-law), Rishi and Rupa”
“There is no question about me remembering because I was not involved in this and I do not know about this and this topic never came up. Because Subhash has signed here as my attorney, you can now see very clearly that he has misused my power of attorney. 25 D12/45/ll & 15-19. ”
“I have not received a single penny but they should prove to the Judge - the honourable Judge that whether, if they have paid, then which account it has come from, which account it has gone to, they must prove that. 26 D12/47/ll & 7-11. ”
“A. There is no question about it because you have seen in the video link whether my sister Vijaya has any money or not; millions of pounds! And it was very clear. Q. You did not receive half a million pounds from Vijaya for the shares in Glen? Vijaya has any money or not; millions of pounds! And it was very clear. 110. million. D12/47/11 & 7 – 13. ”
“I have cleared this matter with my client over the telephone”
“Q. Are you able to point to the individual or individuals who received that advice and then said: yes, please follow that advice and set the company up? A Yes sir, First [the solicitor who carried out the conveyancing into Ramila’s name] raised [the advice to transfer the properties into an off-shore company] after I think he had been to Jersey for some conference or advice. Then he communicated that to me saying: Subhash, this is a good idea. In the case of Ramila or, you know, is she going to die, then you have a problem. So I said: fair enough so I did communicate that advice to Ramila and her siblings and that was then communicated back saying: yes, you should form the company quickly. Q. How did you communicate to Ramila: by telephone or writing? A. Normally we used to do it by telephone, because in writing it was rather dangerous. Q. Did she give you instructions to set up the company in writing? A. No, by telephone. … Q. And it is said that the consideration was£1 million was paid to Ramila? A. That is correct, and the shares as well. Q. Do you know whether the£1 million was paid to Ramila? A. Over the period, monies were certainly drawn by them and then – I do not have much other details. Q. Were you involved in arranging for the payments from Glen to Ramila? A. No, but the directors were certainly making some payments to her. Q. How do you know that? A. Because I used to do the accounts initially. Q. Do you know what happened to the properties after they were transferred to Glen? A. All I know is that Glen has been sold by the family in the year 2000. Q. Do you know who to? A. To some people in – Portuguese people in Mozambique as far as I know. Q. I see, do you know in whose name the properties are now registered? A. In Glen’s name, as I recall. Q. Still registered in Glen’s name? A. As far as I know. Q. You said “they were”, which date? A. I think, when – last year, when the solicitors were talking to Ramila and me they were in Glen’s name. 35 Trial no. 1, D17/170 – 172. ”
“Glen International Limited/Teso International Limited … We have always been scrupulously honest with you about our fee rates … What you have difficulty in grasping is that we are the Directors [emphasis in the original] of these companies and as such need to know what is going on but, more importantly, are seen to be people carrying out the actions. You see us as simply as an office you send correspondence to or draft letters for, and do not take seriously our role. Bearing in mind the activities of the company, your involvement and its financial background I think you are taking an unwarranted risk with regard to the U.K. Revenue, in fact for the future I believe the Directors offshore should have more control and you purely perform an accounting function not a decision-making function as you are inclined to do. This is the fundamental difference between our firms, you try to minimise our role, effectively you want a rubber stamping operation, we as Directors are not happy with that condition and hence spend time going through the correspondence you sent us which you think is unnecessary. 36 See below, paragraph 336. ”
“Therefore you have absolutely no cause to worry about these accounts as Terry Martin would have reassured you and we have done so. We have paid you over£207,000 since our meeting … I would like you to transfer the sufficient amount of money from Neil’s account to close Mukesh’s account as was agreed at the time.”
“represents loan accounts which are currently interest free, and not payable on demand”
“This represents Overseas loan accounts which are not payable on demand. Interest payable will be rolled up. No provision is made in these accounts.”
“Glen’s accounts show an increasing indebtedness expressed to be owed overseas … I understand that it represents the assets and funds advanced to Glen by the beneficial owner over the years. Barby’sthird witness statement, paragraph 16, D4(4)/16. ”
“I have to put you on full notice that you have not been honest with me about your fee rates and your claims are totally wrong. I have done a full analysis of all the work that your alleged people have done on this company, I do not accept that its continuously active (sic) throughout the year (meaning your firm doing very substantial work) as I have been copying correspondence only to your office. … Therefore, in view of your letter and very unhelpful attitude, as I may put it, the clients are very very concerned and have telephoned me to instruct me to transfer their business to their new advisors. You will be getting the necessary letters through the solicitors and the new advisors.”
“I have been primarily responsible for the formal management of Glen”
“Dear Mr Thakrar Teso International Group Limited Further to our recent telephone discussions in connection with the problems at 57 Landsdown Lane and the High Court Injunction, I now enclose a letter from the Directors of Glen addressed to yourself confirming your appointment as Property Agent for the company with the authority to carry out whatever actions you deem necessary in defending and maintaining the company’s stock of property. I trust this letter is satisfactory, but if you require any amendment do not hesitate to contact me. One of the further points of discussion that we had was your request for a new BVI company to be incorporated which would be used to take a charge on the properties currently owned by Glen so as to protect them from any claims made against the company. … I have now arranged for a company with [the name Teso International Group Limited] to be incorporated and now enclose a copy of the Certificate of Incorporation whereby you will see that the company was incorporated on 22nd November, 1995. My understanding is that the new company will acquire the shares currently issued in Glen in exchange for the debts due by the company to the Shareholders and, at the same time, will take a charge over the properties owned by Glen as security for the loans. You will no doubt be instructing Claremont Smith to deal with the various legal formalities.”
“Q. Did you discuss what the nature of the companies was that you were taking over? A. Well, yes, and in this particular case I discussed it with Mr Shelton, who said effectively Teso was inactive, a company which simply held charges. I do not think we discussed it. There were not any loans. In fact, I am reasonably certain that we did not. My understanding of what Teso was, as it were, on day one was it was a company that held mortgages. Q. Mr Shelton said that the raison d’étre, and that is his phrase, of Teso was simply to hold mortgages. They did not have to be all over the place. Its job was to be a barrier to genuine third Party creditors of wherever the entity was or whoever the person was over whom the charge was placed, or the property lien was placed. Are you aware of that? A. I am aware of that. I read the transcript. Q. Where you aware of that at the time? A. I was not aware of that at the time, no I was aware that the companies had a common owner and I was aware that there was a prophylactic quality clearly to the activities of Teso, but I would not say I was aware in the way in which Mr Shelton put it in the witness box, no. D16/177/20 – 178/18 Mr Barby’s Guernsey-based management company took over the management of Teso from Anchor in March 2005. He said that at that time and since then, the company had been effectively “no longer active”
“It is done this way: there are some people they call intermediates; people who do this sort of business. They get money from you to pay somebody else, so what I did was I called one of these persons … I called them or sent a little note, handwritten like a little piece of paper that I needed to make a payment to somebody else. So I get money, cash, on the money from the country where I am and I pass this to the person who will pay my debt in the other country. From the time I give the money to this person until the money is received at the other end, I really do not know how this goes.”
“The money I took from my own business and also from loans I had with friends. We ask loans to friends, to people we trust, people we know, particulars, individuals, so if I did not have enough money for the payment, from my business, I would ask the remainder of the money as a loan to somebody else and pay the money.”
“This is done by trust. So I would learn that the money was paid just by talking to the person who made the payment, or the person, as soon as they would make the payment, they will just contact me saying: everything is fine, the payment is done. And I very rarely … would contact the person who receive the money to check the money was paid.”
“There was no control whatsoever, we just kept paying little by little the debt, and then one day you would learn, yes, the debt was done, finished and that was it really.”
“Q. Which was the same firm who introduced you to Glen in the first place? A. Exactly. Q. They told you when you had paid enough? A. Yes, after I asked them if the debt had been paid in full, yes, they told me everything was correct and they would transfer all the documents to my name.”
“21. … It was reiterated to me by my new lawyers that it was important to provide more details in respect of the amount I paid which amounted in total to£12m . Although I have racked my brains since giving evidence and since seeing my new lawyers in August of this year I have been unable to come up with any further details.”
“12. I had agreed to buy the company for£12M . The manner of payment in respect of the£12M followed a traditional approach within the Indian community. The process is very unfamiliar to European business people and understandably perhaps difficult to accept because everything is done through third Parties. The process has a name (“chitty”) which when translated means something like “a small piece of paper”
“With regard to the beneficial owner of Glen, I can only confirm what appears on the Statutory records and I can confirm that only Ramila Thakrar’s name appears on the Statutory Records.”
“been advised over the weekend that [Vijaya] has sold her shares”
“Q. What evidence did you have in 2000 that Mr Harjivan was the shareholder? A. In 2000 the evidence was, I have told you, that it came from Subhash Thakrar who held Mr Harjivan's power of attorney and also Mrs Radia’s. Q. In 2000? A. In 2000 I think it was, yes. Q. You do understand - obviously you will not know this, Mr Shelton, but I will need to tell you, that there has been a search of powers of attorney granted to Subhash, and in particular, the powers of attorney granted by Mr Harjivan, and the earliest power of attorney that is in evidence and the only earliest power of attorney identified by Mr Harjivan in giving evidence at this trial is dated22nd June 2001 ? A. I am sorry, I thought it was 2000. Q. So, are you saying that you are misrecollecting or that Subhash misinformed you in 2000? A. Without looking at the correspondence, I cannot say. Q. Did Subhash tell you in correspondence then in 2000? A. I think he did. Q. But you are not able at this minute to point to a letter, even among those that you brought to court, which makes that reference? A. No, I did not bring those letters to court. I did not think that date was in dispute. Q. Even though that in October of 2000, having looked at the statutory records, you produced a statement for use in court saying that in October 2000, Ramila was the shareholder? A. Again, without looking at the documents that came from Subhash, I cannot be specific about the dates. Q. So, it might not have been 2000 after all? A. Well, if the documents - if the correspondence from Subhash says 2001, then it was 2001. Q. So you have no knowledge independently of the correspondence? A. I do not have any knowledge independent of the correspondence itself, no.”
“Q. So all you can do is register your extreme surprise that in March of 2003, Subhash was referring to Mrs Radia as the beneficial owner of Glen? A. I think I have said that many times, that I do not believe that that is correct. Q. But your belief is simply based on other statements made by Subhash? A. I have said that many times as well, yes. Q. But not based on seeing the underlying share transfer? A. There was no underlying share transfer as such. Q. All right. I think that cannot quite be right, is it, because otherwise the original shareholder would remain the shareholder. A. Well, these were bearer shares in Glen. So, whoever holds the bearer shares has title to them. Q. And you, of course, would have no idea who at any time held the bearer shares? A. I have never seen the bearer shares. Q. Apart from what Subhash told you? A. Exactly.”
“Updated. Taskforce 1/7/04”
“Re: 92 East Dulwich Road It is imperative that Teso have a separate address to Glen to avoid any wrongful allegations or claims made in Courts, which are wrong. I have advised their solicitors that they are two separate legal entities with separate registrations, separate Company Incorporations in different Countries and separate Shareholders. One is a Property investment Company and the other is like a Bank and lender and therefore, they cannot be connected Parties, as wrongly alleged by Jennifer Israel & Co, Solicitors.”
“Further to your telephone call to me today … I have confirmed that the bearer Shares were issued initially, and were previously held by [Vijaya], [Ramila] and their family … In March 2000, they sold [Glen’s] Shares to Mr Harjivan and details of which were given to you. However, your Compliance Officer was making enquiries of me early this year, when I also gave the same information and explained that the bearer Mr Harjivan of Portugal held Shares. He was to issue new bearer shares and send them care of my Office address, which have not yet been sent. Therefore, your record of the Company and shares registration should be corrected, and properly dealt with now … If the Shares are sold by the Shareholders overseas, then they do not need to concern Glen or if any details of selling considerations or how they have dealt with it, so long as they have been dealt with it properly themselves overseas … Would you please therefore, confirm that your records are in order, and that there is also a Debenture in favour of [Teso], which is owned by separate family. There is no connection between the two Companies.”
“I have looked at my letter of8 July 2004 , and certainly it was a typing error, because Mr Mahendra Mr Harjivan is the Shareholder and not Mr M Mahendra. I do apologise for that typing error by the Secretary.”
“Glen’s accounts show an increasing indebtedness expressed to be overseas … The historic debt accrued long before my involvement with Teso. I understand that it represents the assets and funds advanced to Glen by the beneficial owners over the years. I am informed by the Bankrupt [i.e. Subhash] that Teso was formed in or about 1995 in order to take security for that debt in favour of the beneficial owner who had funded Glen.”
“MR BARKER: Paragraph 2 The reference is to a letter from Birkett Long to Messrs Cope’s (another firm of solicitors) dated23 November 1999 [F4(2)/406]in relation tojudicial review proceedings against Greenwich LBC, the second paragraph of which reads: “My instructions on this matter on behalf of [Glen], a company registered in Liberia but owning a substantial property portfolio in this country, come from the company’s accountant [Subhash]. The shareholder of [Glen] is [Vijaya] who has a personal interest in some of the properties. She is resident in Kenya and I again receive instructions on her behalf from her Attorney [Subhash] under a Power of Attorney.”
“about some premium and some houses and also the debt that the company was owing”
“Q. Where are these documents now? A. I do not know where they are, I do not remember. Q. Are these not very important documents? A. They were just information about the company, about the properties, about the accounting related to the company; nothing else. Q. As I understand it, that was the very basis upon which you agreed to pay£12 million for the companies. A. Yes. Q. It was your proof that the companies were actually worth£12 million ? A. I talked to some people in Lisbon about this information which was given to me, and then just decided to carry on talking, to carry on discussing the possibility. Q. So these were very important documents, were they not? A. I do not remember that these documents were very important; they were information about the company and statistics which were drawn up by Subhash. Q. Is it your evidence that it was not important to you whether these papers were right or wrong? A. I believe that the information on these documents was correct because Subhash was a person who was regarded as trustworthy and who had a high standing in the Indian community in London. Q. So you agree with me that it was important that these documents should be correct? A. Yes. Q. They were important documents? A. Yes. Q. Surely you would have kept them in safe keeping somewhere? A. I did not keep them, I do not know where they are, I did not keep them. I do not usually keep documents. Q. When do you think you disposed of them? A. I do not know whether I threw them away or whether I disposed of them or whether I have lost them, I do not remember.”
“so I asked money – I lend money from various people I trusted and obviously after that the company’s shares started – the value of the shares increased, and of course it became much, much easier for us to repay the debt then”
“Q. If a fax came to you in Lisbon, did you just throw it in the waste paper basket each time? A. I kept it as long as it was necessary for me to think about them. Once I had dealt with them I would either throw them away, or if they were particularly important I would keep them.”
“Other companies owed him money in Africa, in other countries where he did business, and the monies which were owed to him were paid to him and then he was able to repay that”
“It came from South Africa and Mozambique … Part of it was money I had, and part of it related to business. I had money which was owed to me because of business that we carried on.” (13) However, Mr Harjivan could not point to any document which showed what these companies were or how much they paid and did not even know what the names of these companies were. He could not produce any of the “small pieces of paper” used under the “chitty system” to make the alleged repayments and he did not believe anybody else had his chitties either. He said that he did not write any of the chitties himself but “just asked people to do it on his behalf, via the phone”
“Q. Can you tell me how you prepared your statement and the Points of Defence? A. These Points of defence were made in Lisbon. My daughter helped me, with a group of solicitors in Lisbon. The basis, the principal basis, in London was made with the help with my attorney, because she is also – she is also the accountant and would be able to help me with the papers. Q. Who prepared the English in the document? A. It was my daughter. We started doing – raising the points and doing the documents in Portuguese, and after that we had it translated for English. Q. Who translated it? A. It was my daughter and the group of solicitors working with her. … Q. There are 38 pages of the Points of defence. Where were those typed up? A. It was typed up in Lisbon. Q. By Mr Harjivan’s daughter? A. Yes. She typed it but she had the help of a group of solicitors working with her. … Q. The documents are long and written in English. What did you do to check that the English document is true and was the evidence that you wished to give? … A. What I did was, a draft of the document was written in Portuguese first and after I read the document and after that I said, yes, this is correct and this is what I would like to be pointed. Q. When the English document was produced, what does Mr Harjivan say to show that he believes the English document is a fair and correct translation of the document that he agreed to? … A. I have a notion of the English language, so I have no doubt that these documents are fairly translated from the Portuguese documents.”
“Q. Just to confirm, Mr Harjivan: is your evidence that the defence in English was drafted for you by S K Thakrar Limited? A. No, it was not by them, we just used their own summary of events because we did not have the documents with us, so we prepared our own documents from their own summary. Q. Let me put it this way, Mr Harjivan: it is right, is it not, that this document was prepared on your behalf with the assistance of S K Thakrar Limited? A. No, the S K Thakrar just helped us to gather the documents that we needed to prepare our defence in Portugal because we did not know the laws in England. We needed information from them so we can gather the information to prepare the Defence in Portugal . D8/33/12 – /38/12; D8/36/14-19 & D8/38/ 5-12. .”
“Q. Mr Harjivan, all the people I have referred to and the litigation I have just referred to, you deal with at length in your defence? A. Yes, I can only remember about the names of the lawyers that were representing my own interests. I really do not remember any other names or only the lawyers I spoke to. I am only concerned with the process that has been going on against myself and my companies, because I have not been well lately and I cannot really be worried about things that happened in the past, or things that happened that are not of matter to myself. Q. So, although the people and the litigation are referred to in your defence, the people and the litigation I have just asked you about, you have no personal knowledge of any of them? A. Yes, I just know about the contract we had from the lawyers in London regarding the process of transferring shares on my own companies. So these lawyers, the lawyers I spoke to in London I know about because we contacted them to get all the information, so at lease we could prepare our own process. Anything else, I really do not know about.”
“Maputo, Moçambique – postal code no. 1127”
“Q. One question: in 2002 and 2003, was that also, or possibly instead of you, the address of Vijaya? A. No, I do not think so because this postal code has always been mine, and if I had any contact with her – I really do not understand. Q. As far as you are concerned, the answer is “no”? A. I did not understand completely the question, but what I am saying is this has always been my own postal code. Q. Postal box? A. Postal box, yes. My postal box, and if had any contact with her through it, I may have, but it always belonged to me. Q. I did not ask whether you used it; I asked whether that was also her address as well as yours or instead of yours in 2002 and 2003. A. No, it always belonged to me and no body else. As far as I have always known, this is my own postal box and it never belonged to anyone else; if it was transferred to given to anyone else, I do not know. As far as I know it has always been mine.”
“Yes … Subhash asked [me] – if any documents had to be sent to Vijaya in Mozambique, he asked the documents to be sent to the PO box … Because cheques were sent to her, she did not like the fact that cheques were being sent to her and then she asked the cheques to be sent to the PO box instead.”
“At the time it was not clear to me what you were talking about. After we had the hearing at the court and I spoke to Subhash to find out what had happened, and then he explain to me that it had happened in this way and not in this other way.”
“Q. … This document says that you are earning 22,000. That is false, is it not? A. At this moment I cannot say whether this is false or true. Q. Were you earning 22,000, or any money, as manager of Universal Partnership? A. I do not know how to explain, how I will explain. This was a document which was prepared in order to apply for a loan to see whether they could be successful in the application, nothing else. Q. But the person who saw the document had to decide whether to give you a loan and that person wanted accurate information. That person would see that you were earning 22,000 a year from the Partnership. If you were not earning money from the Partnership, the information that that person would see would be false. Does it concern you that false information was given to the person who had to decide whether to give you a loan? A. I cannot give you an answer.”
“Q. … you say: “The balance” [i.e. 30 – 40% of£12m ] “was raised through personal loans provided on trust through my business associates in India and South Africa.”
“These were people who were at all well known to each other and where trust was very high between us”.? A. There was a lot of trust amongst us, so we could just tell each other how much money should be paid. Q. So these are people you know well? A. I do not know all of them, but some of them I know. I cannot give their names. Q. I see. So some of these people who did not even know you lent you money, is that right? A. I do not know all of them, but some of them I know. I cannot give you their names. Q. I see. So some people who did not even know you lent you money, is that right? A. Because amongst us there is a lot of trust and we all work with that kind of process. So people will tell each other: “Can you lend money” or “Will you please lend money to someone”, and then they were a kind of society, because – Hindus, Hindus. Q. Many of these people you know well, then? A. I know them reasonably well. I do not know them very well, but reasonably well. Q. But you cannot identify who they are. A. I cannot give their names. Q. Can you even remember who they were? A. I do not remember, that is it. Q. Can I ask, when Mr Harjivan says that the names are confidential, why is he unable to tell us the names because he says they are confidential? A. Because most people who transfer money in that manner in Africa, they do not like to have their names divulged. Q. Why not? A. I do not know, but it is something to do with the development of their businesses. Q. Is it anything to do with the fact that these are illegal transactions? A. In most parts, the majority of times, yes.”
“Dear Mr Thakrar I, as the beneficial and legal shareholder of Glen International limited and also, a director of Glen International limited, I confirm my various instructions to you to use monies from Glen International limited, the monies required to pay our solicitors. They are namely Decherts, or Ross & Craig, solicitors and any other. I confirm that you have acted on my instructions and this expenditure is in the normal course of our business to protect our best interests as the Court Orders allow. Therefore, you will not be in breach of any Orders and you have been following the clients’ instructions which you are obliged to do. If there is any argument, I shall deal with it personally as and when necessary. Please do not therefore be unduly concerned. I am sending a copy of this letter to Mr Barry Shelton, so he is aware of my various instruction (sic) on behalf of Glen International limited and myself as some of the monies will be debited to my own loan accounts. These loan accounts are with Glen International limited and Teso International Group limited, the lending company, which is my own also. If you have any queries, please do not hesitate to contact me.”
“[I am pleased to note] that you will allow me to draw down funds from Glen and Teso, my and my family companies. This, I do need as my health is not good and I certainly need the support of my and my son’s companies, their directors and other advisers to be able to deal with the matters properly. I have paid Ross & Craig very substantial fees, which were my private savings also and I have run out of them with my having to also live as a retired man and having been overseas on various business, family and religious reasons.”
“A. I think Mr Shelton may have lied at that point for personal reasons, because he was also sent a£90,000 cheque to this same firm. Q. 90,000? A. 9,000, sorry. Q. I am saying that Mr Shelton knew nothing about the money coming out of the HSBC account. That was his evidence. Was he lying? A. I spoke to him on the phone. I spoke to him on the phone about the need for money to be paid, and if he said that he did not know about it, it is not my fault. Q. You are aware, are you not, Mr Harjivan, that there is an injunction freezing Glen’s assets and that its assets can only be used in the ordinary course of its business. … A. I did not know anything about the freezing order. Q. The freezing order was made in 2005. A. I did not know about it. No body said anything about that to me.”
“I met Mr Subhash in Tenerife and at this meeting I asked him of the possibilities of having some investments in London. At this time he was – yes, at this time he was the accountant for the Glen’s group. At this time I asked him about the possibilities of doing an investment in London and he mentioned that one client of mine was interested in selling shares. Then I asked him to send me the proposal. He sent me all the elements for the business and he explained that the ladies wanted to sell the shares because they were facing some difficulties of making some payments of some debts contracted by them. From that point he gave me some numbers and with these numbers I studied let us say, these numbers and I tried to find at some point, at some time, to do this business in London. At this time he presented me the debts – the debts in other countries and it was approximately£12 millions.”
“Q. But where was the agreement reached? Was it by telephone, in London, in Tenerife, Lisbon or where? A. It was after telephone conversation, after that he send me the documents and I start preparing myself to pay the money.”
“Q. And that Mr Harjivan agreed with Subhash that if£12 million was paid, the Ramila and Vijaya shares would be transferred to him? A. I did not agree with Mr Subhash. It was not with him, because he was the accountant of the company. I just asked him if the documents has been paid”
“A. There was not a relationship as such. What happened was that Mr Subhash used to be the director of the companies, so if I had any doubt about the company or any matters of it, I would speak to him to clarify matters. That is all. Q. Sorry, I misheard that. What was Mr Subhash of the company? 350. A. I am sorry about the confusion. Mr Subhash was a previous accountant of the companies Teso and Glen but we did not have any relationship. What happened was, if I had any doubts or any questions about any matters, I would ask him. But this was a rare occasion that I needed to get some information but there was not a relationship as such.”
“Q. Those are not mistakes are they; the position is this, is it not; when Subhash needs you or your family to lie for him you do it? A. We do not do anything for him. Our family has nothing to do with his family.”
“… in order that all of the information could be taken into account when arriving at a figure for the purchase of the company.”
“… assured [him] that the situation of the company was good”
“If I said that, I do not remember now.”
“[o]n many occasions and many parties and many ceremonies in London.”
“… assigned the benefit of the loan to Glen in order that it could take security for the loan to the Thakrar family”
“I do not know how to explain that to you at the moment.”
“Q. Would you explain to Mr Harjivan that this is important evidence that he is giving and he is asking the court to accept evidence without any supporting documents or other evidence. A. Could you first repeat that? Q. Could you then say that I will be asked by the other Parties in the case not to accept any of this evidence because there is no supporting documents or other evidence; it is simply his word of mouth in the witness box. Then could you say could he tell me why he says that I should accept his evidence without there being any support at all? A. I am afraid I do not have any documents at all to support my evidence. Q. But he is also not prepared to name people who might be able to support his evidence. Could you say I am not going to insist that he names these people, it is for him to decide, but if he is not prepared to name them, I must take into account the fact that he is not prepared to name the other people when I consider whether I can accept his evidence or not.”
“I will try to find people who I might give you the names of. It will be difficult, but I will try”
“A. I have not seen any documents, but I know there has been recorded in the accounts. Q. How does he know that? A. Because I had a conversation about the subject and they showed me some accountancy papers that there was a debt. Q. Who showed him? A. It was at the SKT office. INTERPRETER: And he said Mukesh. Q. Mukesh showed him? A. Yes. Mukesh showed me. Q. I have not seen any document that shows that there is a mortgage in favour of Mr Harjivan as security for a loan that he has made to the Thakrar family for this investment. A. No documents were prepared, but in the accountancy papers there is a record of it. Q. So is it Mr Harjivan's understanding that there is a mortgage, but that the mortgage is not in a formal mortgage document, it is simply referred to in accountancy papers? A. Yes.”
“Q. Could we just explain again to Mr Harjivan: Mr Barby and Mr Shelton have explained to me what that document is. They said that all the information in that document came from Subhash. They did not have any knowledge themselves of that information. Does he understand that? THE INTERPRETER: He says... A. I am sure, although not absolutely sure, that these mortgages were set up by Roger Lafolley. This document might be here. Q. If I can just go on. Subhash has said he will not give evidence to this court, so I have not heard from Subhash. There are no documents that we have seen from Glen that show this mortgage -- if I could just finish. So far as the court is concerned, the only evidence that we have, the only direct evidence we have of these mortgages, is from Mr Harjivan. Is there anything else that Mr Harjivan can tell me which can show that there was a mortgage? A. I do not know, and I am not going to go through all the documents which have been filed with the court, but I might ask one of the Thakrar family members about it and see whether they can provide me with something.”
“… the position is this, is it not; when Subhash needs you or your family to lie for him you do it? We do not do anything for him. Our family has nothing to do with his family.”
“The court cannot condone their [the two principal solicitors acting for Party 1 and the principal solicitor acting for Party 4] lies and tactics to stifle and/or dishonestly profit or cheat any litigants under any circumstances – self created by the claiming Parties presentations without clear factual documentary evidence but on Ramila and Vijaya’s creative hearsay and perjured evidence produced by Party 1 and Parties 2 to 4.”
"Ramila and Vijaya created hearsay and perjured evidence."
“Q. Is there any reason why you didn’t identify the Portuguese family? 374. Q. But you were on oath in court and you were asked a direct question: Who has bought Glen? A. Yes, well, then I probably didn’t get, you know, why do you call in the right – what’s the right word – I didn’t get the right advice to tell you that, look, I’m under oath, I have to tell you everything correctly. But I was certainly telling you as I recall that I could not divulge any more.”
“Dear Judge, I enclose two Schedules of monies given to Mrs. Vijaya Radia and Ramila which will assist you to appreciate sums of monies that have been taken by the two members of the family. In addition, Nilesh has had substantial sums of monies also with the properties which are currently valued at£3m . The education and marriage costs of Shimeer, Nimisha, Neeta were also paid out of the family trust monies and other monies. The details of all these were contained in files and accounts agreed between the Parties as we recall. The Trustee has taken everything and you need to make very firm Orders if you wish to see the evidence to support these two Schedules and monies given to the members Thakrar family. No doubt, there will be arguments and further discussions arising. I am sorry that I was not prepared for these figures until I sat down and discussed with others to be reminded of the sums.”
“The 2 schedules sent by Subhash with his e-mail of 26/9/07 timed 16.11 are totally incorrect and not supported with any documentation. All figures are more lies and Subhash is unable to substantiate any figures on these schedules. In his last paragraph he says " I am sorry that I was not prepared for these figures until I sat down and discussed with others to be reminded of the sums" - how can Subhash not be prepared for these substantial sums if they were correct. He obviously wanted more time to create these unsupported schedules just like he has created many other documents in the past (for just one example please see Subhash's evidence given on 24/9/07 with regards to minutes of meetings that he had created without meetings actually taking place). More of these lies would have become apparent if he had given evidence during the fact finding stage of the trial. The other reason why Subhash could not remember these figures is simply because he did not want any follow up questions from the learned Judge and any other claiming Parties. Subhash is clearly hiding behind e-mails. Ramila & Vijaya request the Judge not to take the e-mail and these 2 schedules as evidence from Subhash as he has no proof and has not been questioned. The last paragraph of Subhash's e-mail below says "No doubt, there will be arguments and further discussions arising" - This clearly shows that Subhash has doubt in his figures as they are incorrect and made up. Reading Subhash's evidence of 24/9/07 clearly demonstrates lies after lies.”
“I have expressed in my earlier e-mail that [Ramila] and [Vijaya] with Shimeer must attend the Court and be cross-examined on Oath. They must give Affidavits also. It is not sufficient for an e-mail sent today29 September 2007 at 16:43 to “respond” to you. It goes no where to disprove and they do not deny the sums given as I note. The style of writing by Shimeer is not his as I do know and I have helped him in various other matters of family and Solicitors correspondence on Ramila, Nilesh litigation. So please do not be misled that he is capable to deal with all issues or write such an e-mail. I would like him also to produce the recent telephone bills that he has spoken indeed to Vijaya in Kisumulast week and those will be available to him or RSB. Would you please order for him to come to the Court because I am sure that Vijaya will not be able to deal with the matters so quickly in a way that you are being misled to believe. I do not believe Shimeer at all or his stories, so put him to strict proof, please. I am more than happy for all the family and client Solicitors files and documentation to be produced to the Courts by Mrs. Shirley Jackson and Mr David Gwillim, which will show what I have stated and what I have recalled to be factual. “If everything I am alleged to be saying is “totally incorrect and not supported with any documentation”, than there will be no hesitation in Claiming Parties 5 and 6 introducing all the original documentation to the Court to disprove me.I challenge them all to do so. Are they saying that there were no legal costs paid for Ramila and Vijaya, when Solicitors were acting, they would not have worked without funds? Are they saying that monies did not come to them from Nilesh’s settlement of£75,000 , are they saying that£75,000 or more did not come from 47 Birbeck Road, Sidcup Sale, and lot more which I have stated. If the files were not suppressed by the Trustee and Mr Gwillim I will be able to prove those figures without any hesitation. Shimeer also has copy documents which he kept himself for Ramila and Vijaya. If the figures and what I have stated are lies and I am unable to substantiate it because of the seizure of the documents and files, than please Order the matters and the Police to investigate the matters fully with the Solicitors who had acted also to recollect or produce documentation they have or have given to Mr David Gwillim, Vijaya, Ramila or Shimeer or any other Solicitors who have requested them of them last year. Ask them to state what and where they are held, please.”
“in order to avoid the payment of inheritance tax in England should our client die, her accountants have proposed that she should arrange for the formation of a company in Jersey and that she should sell the properties in England to that Company in return for shares to be allotted to her in the Jersey company … The accountants in question (Messrs S.K. Thakrar & Co …) have instructed us to contact you to enquire whether you are able to assist …”
“Thank you for your letter of31st May 1989 , together with the copy of your letter to Anthony Evered of Strachans in Jersey. What you have stated is perfectly correct, and I have cleared this matter with my client over the telephone. All I would say is that her sister, Miss Vijaya Thakrar, is also to be a shareholder in the Company to be acquired in Jersey.”
“One of the further points of discussion that we had was your request for a new BVI company to be incorporated which would be used to take a charge on the properties currently owned by Glen so as to protect them from any claims made against the company. You indicated that the preferred name for the company would be Teso International Limited, but having applied for this name in the BVI it was unavailable, but the name Teso International Group Limited was available and I have therefore arranged for a company with that name to be incorporated and now enclose a copy of the Certificate of Incorporation …”
“ … What you have difficulty in grasping is that we are the Directors of these companies and as such need to know what is going on but, more importantly, are seen to be the people carrying out the actions. You see us simply as an office you correspond to or draft letters for, and do not take seriously our role. Bearing in mind the activities of the company, your involvement and its financial background I think you are taking an unwarranted risk with regard to the U.K. Revenue. In fact for the future I believe the Directors offshore should have more control and you purely perform an accounting function not a decision making function as you are inclined to do.”
“A. … the experience of Mr Thakrar is that he is a man who likes to get his own way”
“Q. So, is your evidence that it did not actually matter, the extent to which Subhash acted or purported to act for or took steps or actions on behalf of Teso because in your opinion, Teso was not really important anyway? A. It was not very important. It had no income. It made little difference what impact Thakrar had – Subhash had on Teso. Q. Sorry, it made no impact on what – A. It made little difference to the overall structure of Glen. I was concerned with Glen. Glen had the assets, Glen would be the one that if we allowed too much control to remain outside of our office, that would be – we would have the problems of the UK revenue. Teso had no problems, had no income. It had no real assets. Q. To summarise: you were content for Subhash to control Teso because it did not have any UK taxation implications but different considerations applied when it came to Glen. Is that a fair summary? A. I think that is a fair summary.”
“Q. So who was responsible for determining the amount that was outstanding to the shareholder by Glen? A. In 1996, when we took it over, it was a historical loan and the additions or subtractions or interest calculations after that date were made by the accountants. Q. How could the accountants make it? A. They have all the information”
“Q. [page] 725(5). Do have a look at it. A. Sorry, I assume that if Glen completed the formalities, then this letter was seen by Glen. Q. But it is addressed to you. So is it likely that you would have seen it? A. Yes. Q. I ask my question again. Can you assist me by explaining what Subhash is here referring to as an agreement of the monies due from Ramila at the time, which are now secured with Teso? A. I assume this is – again, this is another assumption – at the time of the transfer of the shares from Ramila to Vijaya. Q. Well, perhaps I can assist you a little further. You will see in the second paragraph, Subhash says this – A. At the time in March 2002. It must have been in March 2002. Q. So, again, what is this letter referring to and what are the formalities that you are asked to complete on behalf of Glen? A. I do not know. I imagine that that would be minuted. Q. Do you know what the reference to Ramila is? A. I do not. Q. I think you were mentioning a moment ago, did this relate to the transfer from Ramila to Vijaya, so I take it that actually, the name Ramila does have some resonance for you? A. I do know who Ramila is, sorry. Q. Who is she? A. She was one of the original shareholders of Glen. Q. In March 2002, was she still an original shareholder? A. In March 2002, she was not. Q. So, what do you think the reference is to the monies due from Ramila, secured with Teso, a reference to? A. I do not know. Q. Are you able to produce the account to which Subhash refers in this letter? A. No. Q. Does Glen have a loan book in the name of Ramila? A. Glen does not maintain a loan book in Jersey, with Ramila. Q. So, where would the loan book in respect of Ramila be maintained? A. If there is a loan book in respect of Ramila, it would be maintained at SKT. Q. So you would be unable from your own records and information to ascertain (a) whether monies were due from Ramila to Glen, or (b) if so, in what amount? A. That is correct. … MR CRANFIELD: You will see Subhash refers in the first paragraph in his letter to various meetings and discussions in the past. So was this a matter on which you had detailed discussions with Subhash? A. In my recollection, it was not. Q. So that was simply an invention on his part? A. In my recollection, it did not happen. Q. Perhaps you can assist us? What were the formalities that you were being invited to complete in this letter? A. Without seeing them, I cannot remember. Q. We know it is in relation to an apparent loan account in the name of Ramila, does that jog your memory? A. It does not, I am afraid, sorry. Q. Do you suppose that Subhash was inviting you to sign off on behalf of Glen? A. I assume that is what it was. Q. Did you? A. Without seeing it, I cannot say 100 per cent, but I would imagine that it was done. Q. Again, in circumstances where your only knowledge about this matter was what Subhash told you? A. That is correct. JUDGE THORNTON: Does it go further than that: that you do not know when asked today whether you signed off a loan account in relation to Ramila at all, and that it may be possible that you did in fact never sign off such a – A. That is possible, my Lord. I am saying that I assume it was done. JUDGE THORNTON: If no such loan account has been unearthed in any location, including the offices of Thakrar & Co and I was invited to conclude that there was no such loan account in existence, would you have any comment about that? A. Your Lordship can only make a conclusion based on the facts. JUDGE THORNTON: That is the only way you are able to help me? A. That is the only way I can answer at the moment.”
“Who do you now say is the owner of this company? We need to pay a dividend. Who do we pay it to?”
“Subhash using Teso in an attempt to protect an asset of Glen, 92 East Dulwich Road, from the leaseholders of that property exercising their legitimate rights” and “an attempt … simply to thwart the lessees’ altogether … by actually purporting to sell 92 East Dulwich Road at a time when the lessees were seeking to enfranchise, purporting to sell it to Mitesh”
“RE: CHANGE OF SHAREHOLDERS AND APPOINTMENT OF ADDITIONAL DIRECTORS I have been advised over the weekend that [Vijaya] has sold her Shares. There are three new directors also been appointed to [Glen]. They are no doubt in addition to yourself and other present Officers, as I understand. … They have also requested that you please keep me fully informed and consult me at all times before making any decisions so that they can be appraised fully … … They have advised that no serious decisions should be taken and any routine matters can be dealt with so long as I agree with you.”
“Q. Is that a letter you recall receiving? A. I think I do, yes. Q. If you look at the third paragraph, what is Subhash there telling you? A. He is asking Glen to keep him fully advised and consult with him at all times before making any decisions; so that, in his words, they can be appraised fully. Q. So, Subhash is saying that you must advise and consult with Subhash at all times, before making any decisions? A. He is requesting us to do that. Q. We see the words on the page. Would you like to go a little further? At the bottom, do you see the final sentence on that page: "They have advised that no serious decisions should be taken and only routine matters can be dealt with, so long as I, Subhash, agree with you." Do you see that? A. I do. Q. And you see the CC at the bottom? A. I do. Q. “The new shareholders and the old shareholders”, whoever they may be? A. Yes. Q. Is that not a plain direction to you not to direct without Subhash's say-so? A. It is. Q. Was that not the constraint under which you operated at all the times that you were the director of Glen? A. Definitely not, and I have documentary evidence to prove that that is not so. Q. Was that the constraint under which you operated? A. That is not the constraint under which I operated. Q. Subhash took the view, did he not, that he could equally as well handle the affairs of the company as you could, and frequently he did so and simply told you afterwards; is that not true? A. That was his view. Q. Did that not happen? A. It happened in, as it says here, routine matters. Q. Well, it says here that you are forbidden from taking any serious decisions? A. Well, that did not happen. Q. It is only the routine matters that you are even allowed to make a contribution to. A. Sorry, it was the other way round. That did not happen. I will be able to address that later. Q. Subhash's view of life was misconceived? A. Yes. Q. And a rather different view from the view you took as to your role? A. That is correct. Q. But you did not consider that that led you to act under the constraint of Subhash constantly saying to you: you must do as I say and by the way, the shareholders are telling me that you must do as I say. A. If Subhash had said: the shareholders have requested me to do something; that would have put a different light on the matter. But as a matter of course, Subhash did not make that statement. Q. So, in the case of the letter that we have just looked at, that was effectively a direction communicated to you by Subhash, and you would have followed it? A. To a certain extent, you are correct, but the problem is for the Glen directors, that they had a fiduciary duty to the company which overrides the wishes of the shareholders and overrides the wishes of Mr Thakrar. JUDGE THORNTON: Can I ask whether you recall informing Subhash that you were not, as a director, able to comply with a direction that all the important decisions of the company should be taken by him and not by the company directors. A. He had been informed by me orally and I will on re-examination, my Lord, produce to the court some samples of letters that I have written to him which I am sure the trustee has somewhere, which will prove my contention.”
“JUDGE THORNTON: … Your evidence is that you did not comply with this instruction and you informed Subhash in writing on a number of occasions that you were not going to comply with the instruction. A. That is right, my Lord. JUDGE THORNTON: It is obviously important that at some stage I should be presented with that evidence, and therefore, I merely indicate for the moment, this evidence is not available to the court”
“I write with reference to our recent discussions on Wednesday and Friday of last week and have pleasure in enclosing the new facility letter in respect of Glen … As you are aware, I am exceptionally keen to develop more business with Glen and am extremely grateful for the opportunity to meet directly with Mr Thakrar on Friday last. During our conversation, it became apparent that Mr Thakrar, individually and through Glen, is a man of some substantial wealth owning (I believe was mentioned) properties valued at c.£35m with the only borrowing being our small facility and I understand about£500,000 elsewhere.”
“JUDGE: That is your answer? A. Yes, my Lord.”
“… the intention, the reason, the raison d’etre for Teso, was that it would make people less liable or willing to take action against Glen, knowing that there was very little equity or there could be very little equity in Glen.” and “It was always my understanding that the debenture that Teso held on the Glen properties was put there to put off any potential claims that may be made against Glen.”
“Glen’s accounts show an increasing indebtedness expressed to be overseas … The historic debt accrued long before my involvement with Teso. I understand that it represents the assets and funds advanced to Glen by the beneficial owners over the years. I am informed by the Bankrupt [i.e. Subhash] that Teso was formed in or about 1995 in order to take security for that debt in favour of the beneficial owner who had funded Glen.”
“JUDGE THORNTON: Before we adjourn, can I ask you; you understood these to be shareholder's loans? A. Yes, it is quite common, my Lord, that the shareholder in small companies or small private companies has provided funds at some stage which have not been provided as share capital to the company but simply as loans or introduction of assets. JUDGE THORNTON: But the shareholder of which company? A. I am talking about Glen here. JUDGE THORNTON: So this is Glen’s shareholder? A. That is right, my Lord. What happens when a company is taken over by whoever; if you took over the shares in Glen, that shareholder's loan would simply be transposed into your name. JUDGE THORNTON: I am merely asking about the actual shareholder's loan or loans that were recorded in the accounts of Glen. They were identified as shareholder in the singular, presumably, because there was only one shareholder? A. Yes, shareholder's loan is shareholder, apostrophe s, my Lord. JUDGE THORNTON: Was a sum of money identified? A. There was a sum of money outstanding in the balance sheet. JUDGE THORNTON: And those were loans made to Glen by the shareholder as recorded - A. In Glen's books. JUDGE THORNTON: - in Glen's books. And Teso was provided with a debenture? A. That is right, my Lord. JUDGE THORNTON: As security for these loans? A. That is correct. JUDGE THORNTON: But what would Teso's interests be in the loans to enable it to have a debenture over the assets of Glen? A. You know, that was one of the reasons why I was not as convinced as Subhash that Teso was a very effective vehicle for securing these loans. JUDGE THORNTON: Did you form any view when you became aware of this as to whether Teso had any interest in the loans, sufficient to support a debenture over Glen's assets? A. That was always a concern to me, yes. JUDGE THORNTON: That it did not have an interest? A. Yes. JUDGE THORNTON: If it did not have any interest, what would be the effect of that, in your view? A. Well, if Teso did not have sufficient interest there, given the common ownership, I felt that it would be fairly ineffective and that the court might just lift the corporate veil in this particular instance and look right through them. JUDGE THORNTON: And do what? A. And decide they were ineffective. JUDGE THORNTON: And therefore, the loans would be then unsecured? A. Exactly, my Lord.”
“Q. What I am putting to you is that the way these companies were run in practice and the way Teso was run in practice, as screams out from this page, is that it was run by Subhash, and Teso and Mr Laffoley were merely regarded as the agents to give effect to Subhash’s instructions? A. I think that a fair summation of that would be that that would be what Subhash was trying to effect all the time, yes. … Q. So, is your evidence that it did not actually matter, the extent to which Subhash acted for or purported to act for or took steps or actions on behalf of Teso because in your opinion, Teso was not really very important anyway? A. It was not very important. It had no income. It made little difference what impact Thakrar had - Subhash had on Teso. Q. Sorry, it made no impact on what – A. It made little difference to the overall structure of Glen. I was concerned with Glen. Glen had the assets. Glen would be the one that if we allowed too much control to remain outside of our office, that would be -- we would have the problems of the UK revenue. Teso had no problems, had no income. It had no real assets. Q. To summarise: you were content for Subhash to control Teso because it did not have any UK taxation implications but different considerations applied when it came to Glen. Is that a fair summary? A. I think that is a fair summary.”
“And so, the basis upon which the property would have been transferred is that the value of the property cannot be reclaimed from the company for at least a year.”
“… a letter from the Directors of Glen addressed to yourself confirming your appointment as Property Agent for the company with authority to carry out whatever actions you deem necessary in defending and maintaining the company’s stock of property.”
“Although it is right to say that I have never sought to be paid a dividend, that is a matter which I had made a decision to adopt as a strategy, in other words to plough back the considerable turnover in terms of rental income, back into the company. In particular, there was a rolling programme of ploughing money back into the company by refurbishing the property portfolio when it was possible to do so … .”
“Q. Mr Thakrar was asked whether there was no connection but a commercial connection between himself and Teso and he said yes. Now, as you sit there in the witness box, what is your evidence as to this? Was there or is there any connection other than a commercial connection between Mr Thakrar and Teso? A. There is a connection, as you know, that he was - for what it is worth until it started - Teso was a dormant company for many years apart from just holding the debenture which I think entitles me to call it a dormant company. And so, Mr Thakrar’s connection would have been fairly tenuous with Teso until at least it started doing something. Q. He is really focusing then on borrowing money from Teso in about 2003 and I am really focusing on that period and your own knowledge as you sit here in the witness box now, whether in the light of all of this evidence that you have been seeing and hearing and reading, if you think there is anything more than a purely commercial connection between Subhash Thakrar and Teso? A. I think there is more than a commercial connection. Q. Can you tell his Lordship what you think that connection in addition to a commercial connection is or might be? A. I think looking at the evidence here, I think that Subhash - or sorry, the Thakrar family, are connected with Teso and/or Glen but I have no idea to what extent and that is my honest judgment. Q. By connected, do you mean in some beneficial way? A. It certainly looks as if there is some beneficial connection. The only rider I would give to that is that I am surprised that everyone is saying that Mr Harjivan is the beneficial owner. Because it would appear to me that if the Thakrars do have an interest in Glen and/or Teso, they are taking a tremendous risk.”
“Further to our firm’s instruction on behalf of [Glen] our clients, we are rather surprised that this matter has not progressed in spite of various reminders and assurances given … There is a very serious danger that other Parties could start to create problems and the clients’ i.e. [Glen] could end up loosing properties or have to pay costs, which could be very serious sums of money. … PS. Please do not forget to put [Teso’s] Debenture on these properties, as agreed and discussed previously.”
“Glen had the assets … Teso … had no income … had no real assets”
“Charges to be taken as soon as possible. Time is of essence” and “Would you please therefore, put Charges on [my home and the Office] as first Charges for Teso … as soon as possible”. (5). Subhash wanted charges to be taken by Teso not only over his own interest in the properties but also over the interests of his brothers and gave the necessary instructions for these charges to be taken out. (6). Subhash regarded these charges as affording protection to him and his brothers. His views about the benefits of his brothers taking charges are clearly set out in this letter that he drafted, a copy of which was found on his hard drive: “Regarding my brothers, Mukesh, Vijay and Kishore the two properties where they have interests, which is my Office as well as Taylors Building, but the third property i.e. in Clipper Court Mukesh, Vijay, Mrs J M Thakrar and myself have interest. Perhaps we should do a separate agreement between them and Teso … for their share of£200,000 worth of loan to be covered so that they are also not left with any difficulty.”
“We should also be able to protect my Brothers i.e. MK, VK and KK Thakrar, as joint owners with me. Can you please somehow include them in the Loan Agreement, if necessary, so that it is clearly protective of them, also.”
“I have not been able to find any record in Teso’s bank statements of any funds passing by way of loan from Teso to [Subhash] pursuant to [the] loan facility.”
“We have recently sent£50,000 to Paul Robinsons, Solicitors on account of legal and professional fees, and will further support you, if needed”
“… the money started off as one thing and then was mixed up later on.”
“… was the only person who knew how much the loans were”
“Neil made the decision that all of [SPC’s] properties had to be sold and he and [Subhash] agreed the price and method of payment and handled all the arrangements. The Company did not authorise Neil to make that arrangement with [Subhash]. No meeting of [SPC] was called at which the shareholders resolved that the sale should go ahead, or ratified it afterwards. There was not even a meeting of the Board of Directors to approve the sale, or to recommend it to [SPC’s] shareholders. I know that Neil and/or [Subhash] manufactured Minutes (which I, at his behest, was stupid enough to sign …) to make it look as though everything was regular, but, in fact no meetings were ever convened. I do not believe that any members of [SPC], other than Neil and I, were even aware of the sale at that time.”
“… most if not all of the Minutes of SPC between his advent in 1987 and his departure in 1996.”
“… was not involved in the proposal to sell the properties and … only became aware that [SPC] had been wound up after the event. … I was not aware that [SPC’s] property portfolio had been sold until after July 1988 … I was given no formal notification of the sale price or that it was to be paid in instalments. I do not recall when I learned of the actual sale price … I only became aware of the actual terms of the agreement to sell (including the size of the portfolio) when I was shown a copy of the document after these proceedings had started in 1996. I had no idea what the portfolio was actually worth. I was not consulted over the sale and I did not discuss the matter with Neil, Kenneth or any other family member or shareholder at the time.”
“I trusted Neil as a member of the family and as the company solicitor to act with honour and integrity in all matters. I had no idea that he was manipulating myself and Kenneth to help him strip the company. I also trusted [Subhash]. He appeared to be a very good friend of Neil’s and was a well-known and experienced accountant. I expected that both men would act with honesty throughout and I had noreason to think otherwise until these proceedings were brought.”
“I would get a shock and my blood would boil that I trusted him and he has betrayed me and if you are then in my place, what would you do? How would you feel?”
“I have never come to know nor was I ever asked about or told about the amount for purchasing the property portfolio and I will repeat, but you will say that I am keeping on repeating but that is the fact: my name has been misused, my power of attorney has been misused in fraud and now I can say that SKT is not a company of accountants. It is a company where fraudulent work is done. Tons and tons of fraudulent paperwork is done. I am the most uneducated person over here but others are highly educated; barristers, lawyers, the honorable judge. They can see how fraudulently documents are being made in that company. Three main points of mine have been misused: firstly, I am uneducated; second, I do not have money, what can I do to them and thirdly, they keep changing solicitors and barristers daily because they are millionaires and they thought that I do not have money so I cannot follow up or cannot do anything and third, they took advantage of my health, which report I have given.”
“I do not know anything about this, nor was I told about it and, if Subhash had come here on Tuesday, I would say: why was he not asked all of this and why did he not say all of this; why did he not answer these questions because he is a cheat and if there is justice, then he should be put in prison, because he has done all fraud.”
“There is no question about me remembering because I was not involved in this and I do not know about this and this topic never came up. Because Subhash has signed here as my attorney, you can now see very clearly that he has misused my power of attorney.”
“I have not received a single penny but they should prove to the Judge - the honourable Judge that whether, if they have paid, then which account it has come from, which account it has gone to, they must prove that.”
“A. There is no question about it because you have seen in the video link whether my sister Vijaya has any money or not; millions of pounds! And it was very clear. Q. You did not receive half a million pounds from Vijaya for the shares in Glen? A. Forget half a million. I did not get a single penny. So there is no question about half a million.”
“… various old (and closed) files … hidden away in the basement.”
“I am exceptionally keen to develop more business with Glen and am extremely grateful for the opportunity to meet directly with Mr Thakrar on Friday last. During our conversation it became apparent that Mr Thakrar, individually and through Glen, is a man of some substantial wealth owning (I believe was mentioned) properties valued at c£35m with the only borrowing being our small facility and I understand about£500,000 elsewhere.”
“… You cannot put people’s lives at risk and behave badly as you have do so even now and on her instructions, we have been asked to warn you that you and your personal family will also suffer the consequences if they are harmed … so please take note very seriously indeed what our client has said via us. We do so reluctantly but on her specific instructions.”
“I am a Kenyan resident national with various UK property and other interests which are administered through my UK representative, namely my maternal cousin, Mr Subhash Thakrar to whom I have granted a general power of attorney. Unfortunately due to the sensitive political and economic climate in Kenya, it has always been an express instruction to solicitors that all and any written communications must be addressed to my cousin in London who would then seek my instructions by telephone or other safer means via third Parties visiting Kenya or UK. The political and economic climate is such that it is my firm belief that overseas post is often intercepted by the Authorities and/or other powerful Kenyans in positions of authority etc. who seek to use matters to their advantage and to my potential disadvantage. I understand that there has been a falling out between my cousin and our then solicitors at Birkett Long. In breach of the express agreement … Mr Livesley of Birkett Long wrote directly to me in Kenya as to confidential financial and business matters. Unfortunately my worst fears were founded insofar as the Birkett Long letter (a copy of which is attached) was intercepted by unknown third Parties such that I then became the victim of intimidation and threats which unfortunately had to be “bought off” by payment of a Stirling equivalent of some£20,000.00 .”
“Maputo, Moçambique – postal code no 1127”
“I confirm that I was of the opinion that settling for£50,000 plus our costs was an excellent result for Glen, as we had no defence to the corporation tax claim, apart from the fraud allegations which were potentially disastrous for us. I also confirm that Counsel’s advice that there was little likelihood of a successful application for costs [by Glen against Suburban] seemed correct to me. Further an unsuccessful application may have persuaded the Plaintiffs of the strengths of their case. We were fortunate that the Plaintiffs’ solicitors did not seem to realise how strong their case really was. All in all it was an excellent result for Glen.”
“Fraud allegations of course could well be – were potentially disastrous for us. If a finding of fraud is made, then of course, there could have been a tracing claim against Glen, but I was also worried within that fraud allegation about the breach of fiduciary duty, although I was not quite so sure about that.”
“A. Your Honour, there is a story behind that and the truth of the matter is simple. Birkett Long, Aiden Lively (sic) was a partner who wrote to her in Kenya. I forget the name of the solicitor who directed somebody from Nairobi to go and see her at her shop. Oh crumbs, I’ve forgotten, He is the guy who did the power of attorney for Vijay. I can’t remember his name. Anyway, you know, what happened is she rang me up she says, “Do you want me to commit suicide with all these things happening? What’s going on here? Why is this guy writing to me here when I told him not to write to me?”
“I gave him [Subhash] my authority, and to assist, I wanted him to – well, he continued to help on the basis that I was kept informed”
“… to pay for our legal … .”
“When I came back to the UK in 1984 with Bhiku I was refused leave to enter. I stayed here for about four days before returning to India”
“… was here and there. I had very infrequent contact with her. I never knew where she was.”
“Shantaben explained that she had not been well for three months and that she could not hear very well. … She said that she knew more or less about [the court case] going on in the High Court. She is not aware that she is a claimant in the proceedings. She is not aware of what the proceedings are about. She said she cannot remember a lot and she forgets things now that she is old. I asked her whether she had signed a statement for the case. She said she doesn’t sign as she cannot read. She puts her thumb print. She was aware that she had put her print on some document. She was not aware of whether it was a short or a long document. It was not explained to her what it was. She could not remember anything and said she was very forgetful. They had asked her to put her thumb print on and she did. I asked her who asked her and she said it was her son, Subhash. Since her husband died, Subhash was the one who looked after her affairs. … Sheela interrupted and said that Subhash had had a power of attorney but that she now has power of attorney for her mother. … she said she had not [seen a solicitor] about the case and she said she had not but then added that her mind had gone. .. She knows that Subhash is bankrupt but does not know that there is an order against her. She has not heard of Glen International Limited or Teso International Group Limited. She does not understand and is illiterate. She was not aware that money had been borrowed in her name.”
“This Defence is on behalf of Mrs Ramila Suresh Bhojani the 4th Part 20 Defendant”
“… do[es] not now recall ever having seen a version of this pleading signed by Ramila.”
“At the time, in the absence of the facts now known to us as a consequence of the appearance of Ramila in these proceedings and the evidence uncovered by [Subhash’s] Trustee in Bankruptcy, we had to take the assertions made in the Defences served on behalf of Ramila and Glen in good faith. We readily appreciated that this meant that we would have to prove (contrary to the assertions in both Defences) that Glen either did not pay Ramila for the [SPC] properties or took them with knowledge of [Subhash’s] breach of fiduciary duty or fraud. These allegations, we knew, would be defended rigorously and would increase the scope of the subsequent trial immeasurably. Ramila and Glen gave every appearance, by the way in which their defences to our Clients’ claims were conducted on their behalf, that Glen had an independent claim to the [SPC] properties that was not dependent upon or compromised by the conduct of [Subhash]. My firm had to conduct our Clients’ case, and give advice to our clients in connection therewith, on the footing that Ramila and Glen were so representing themselves.”
“… on12 November 2001 asking him to represent me at any Part 20 Claims against me from SPC.”
“On Ramila L Thakrar or Ramila Bhojani now- I think you should cease acting for her as there will be conflict and she will make different arrangements to appoint Simon Clark of Kotecha & Company. This was on the advice that you asked the Court to make the Order for me to receive papers to pass onto her for Defence. This is most improper, because I did not wish to be involved, because of conflict and this could cause other family rifts which is why I was most anxious for you to listen to me but you were adamant that, because I had a Power of Attorney, which is being revoked that I should still receive documents to pass on to her. She is not going to be happy when she has paid SPC in full, as clearly confirmed from information already in your hand. This will also mean additional costs to her and the family, which they are not going to be happy with. … It is most important in the Family Actions for Simon Clark of Kotecha & Company to stand in instead of Bowling & Co., to represent Ramila Lalji Thakrar and Bhojani, because there is otherwise going to be a conflict of interest and difficulties arising. A letter has been sent to Ramila after our discussion on12 November 2001 and that is what I am now pursuing with Ramila and Simon Clark.”
“This letter may have been written by Subhash to Kotecha. The address is of Tanzania in 2001, when I was in London, ten minutes away from his house. And he says he has enclosed a copy of my Tanzanian passport and in 2001, since many years, I had a British passport. I did not have a Tanzanian passport. So he may have sent my passport for fraud activities to the solicitor.”
“Your appointment as Accountants/Consultants and Advisors We wish your firm to keep accounting records for all our Company’s lendings and transactions, as it relates to [Glen] and other clients of our Company.”
“[Ramila] sold her portfolio to [Glen] and thereafter, all her Shares in 1990 and has retained no beneficial interest in any of the properties or [Glen] since 1990. The properties were also transferred to [Glen’s] name in the year 2000 and the family sold the shares to third Parties overseas in Mozambique. They have no interest whatsoever. I am no longer accountant to [Glen], as you also know.”
“Further to our discussions last week, and again with the Shareholders, they have asked us to ask you to withdraw your letter of October 2001 about our appointment and the instructions that were previously given. They are most happy with the services we have provided to the previous Shareholders of [Glen] and they wish to continue, because of our special knowledge and ability to assist and increase the value of their Company. Therefore, would you please do a letter to us immediately withdrawing that and send a copy to Jeremy Kleinfeld with instructions that he should now deal with the matters we have instructed him upon.”
“JUDGE THORNTON: Am I reading this correctly that you are being informed by Mr Thakrar that ‘they’ whoever ‘they’ might be had reached a settlement on SPC for Glen and Ramila which you were not aware of and which Mr Spalter regarded as a done deal and which did not include the case against Mr Thakrar, even though it was Mr Thakrar who appears to have been the leading originator in the settlement involving Glen and Ramila. A. I do not know the extent to which Mr Thakrar was involved in any negotiations, but otherwise, yes, that does appear to be the case. JUDGE THORNTON: He must have had some involvement, must he not, because he was able to ring you up and tell you that they had now reached a settlement? A. Clearly he was aware of it when I was not. … JUDGE THORNTON: Well, looking at it, does it strike you as odd, with hindsight, that Mr Thakrar appears to be in the loop so far as the knowledge of the settlement achieved between SPC, Glen and Ramila is concerned, that his solicitor was not aware of the settlement but it was clear that it did not involve Mr Thakrar. A. Yes. I probably assumed that he got the information because I think there was a close relationship with Glen, but I cannot recall the precise words that he said to me other than that are in this note.”
“Q. … So, as I hope you will no doubt now recall, SPC was making some very serious allegations of fraud and misappropriation against Subhash which, in their amended part 20 claim, with which you were concerned, SPC were alleging gave rise to claims against Ramila. I suggest to you that what constituted the potential conflict between Subhash and Ramila was that Ramila might wish to distance herself, indeed to disavow that she had any involvement in the wrongdoing which SPC alleged against Subhash. Now, is that a fair summary of your understanding of the position at the time you had the conduct of the Part 20 defence? A. Yes. Yes. Q. And that was the sort of factor that operated on your mind when, as you say in your statement, contrary to previously where you were happy to act on behalf of Ramila simply on the basis that Subhash had a duly executed power of attorney, on this occasion you wanted to receive direct instructions from the client, in this case, Ramila? A. Yes.”
“… I am very sorry to say that it is absolutely essential that you meet with us if you wish for us to prepare a defence for you … You have asked why it is not possible for [Subhash] to deal with the case on your behalf using the power of attorney that you have granted to him. Again, I am sorry to say that there is a potential conflict of interest between yourself and [Subhash] and it is simply not possible for him to give instructions here. If you do not meet with us then we will not be able to continue acting and no defence will be filed by us. That will mean that, eventually, a judgment in default will be entered against you for, ultimately, in all likelihood, several million pounds …” (6) But as Mr Clark admitted in cross-examination, Ramila did not meet with him and counsel, yet Mr Clark and Kotecha & Co continued on the record for Ramila and filed a defence in her name. D19/119/25 – /121/12. (7) In a letter to Ramila dated27 February 2002 , Mr Clark advised further in equally clear terms: “I note that I have still not heard from you as to a date for a meeting with counsel. … I regret that, unless you are able to attend a meeting on Wednesday of next week, it would appear that we will not be able to take instructions from you in good time to prepare the defence. In that circumstance, there would be little point in my continuing to represent you and I will therefore apply to come off the record unless I have proper instructions from you by 6th March. I will need for you to confirm that you can attend the conference by Friday 1st March at the very latest otherwise I shall have to cancel and tell counsel to carry out no further work.” (8) However, once again, notwithstanding that Mr Clark did not receive confirmation from Ramila that she could attend a conference on or before6 March 2002 , or that he did not hear from her on or before1 March 2002 to arrange such conference, Mr Clark and Kotecha & Co did not come off the record for Ramila and did not tell counsel to carry out no further work. D19/123/11 – /126/1; /127/24 – /128/7. (9) On the contrary, Mr Clark wrote to Nicholas Drukker & Co requesting an extension of time to serve Ramila’s defence, in a letter from Mr Clark to Nicholas Drukker & Co dated5 March 2002 , on the basis of instructions received, not from Ramila herself, but from Subhash. D19/126/14 – /127/23. (10) I conclude that Mr Clark was prepared to continue to run Ramila’s defence on the instructions of Subhash so long as Subhash put him in funds. D/19/126/2-16; /127/24 – /130/18. (11) Counsel settled and Mr Clark filed and served a defence on behalf of Ramila not based upon her instructions or any input from her but upon instructions and documents received from Subhash. D19/136/22 – /138/14. (12) Mr Clark served the defence on Nicholas Drukker & Co notwithstanding that Ramila had not signed the statement of truth and notwithstanding that Mr Clark had received no indication from Ramila that she either approved the Defence or intended to sign it. D19/138/15 – /140/21. (13) Mr Clark served the defence on Nicholas Drukker & Co purely on the basis of instructions received from Subhash. D19/140/22 – /142/13. (14) Mr Clark accepted that in acting as he did he conveyed a false impression to Nicholas Drukker & Co, and hence to SPC as to Ramila’s participation in the litigation: “Q. You see, from the perspective of SPC and Nicholas Drukker & Co, your actions give all the impression of a client fully minded to defend the claim that had been brought against them by SPC and fully minded to continue to contest the proceedings, and yet, you had no knowledge, apart from the initial letter of12th November 2001 , what Ramila's position was, and indeed, on the contrary, from her continued stonewalling, notwithstanding your attempts and even Subhash's attempts, a strong impression that she did not wish to be involved in these proceedings at all. Did you not find that an unsatisfactory position in which to be, that did you not have instructions from your client but you were warranting to the other side that you had instructions to act in her defence? A. Well, I am not sure that I was -- yes, of course it was an unsatisfactory situation. Of course it was one which caused concern. Yes, I totally accept that.”
“Q. … I want to ask you now, Mr Shelton, about the claim that SPC Property Company made in these proceedings against your company, Glen International Limited. I am sure you are able to recall? A. In the present proceedings? Or in previous proceedings? Q. For the sake of argument, let us say the previous proceedings. A. Okay. Q. By that I think you mean the proceedings that culminated in a trial in 2003, in which Glen did not participate? A. Yes. Q. When did you first learn that SPC intended to bring proceedings against Glen to recover the properties that had been agreed to be transferred to Glen in March 1990? A. I think some time in 2002 although I cannot be certain. Q. The amended pleading, which included that claim against Glen, was served on Subhash in August of the previous year, 2001, and a CMC had been arranged to be heard in November of that year. And it appears, certainly no earlier than late October of 2001, Mr Thakrar took certain steps and it is those steps I would like to ask you about first. You find the relevant document at bundle E2. The relevant document is at page 308(1). You will see that this is the draft of a letter that Subhash intended that you should write to him concerning the reorganisation of the company affairs. Is this the document that you recall receiving? A. I do not recall it. But I am not saying that it did not happen. But I do not happen to recall it. Q. Do you or do you not recall sending a letter to Subhash in more or less these terms? A. I do not recall sending the letter in those terms. Q. Is it the case that in October of 2001, you took the decision to remove SKT as Glen’s accountants? A. I honestly cannot remember. … Q. Do you or do you not recall taking the decision to dispense with Subhash's services as Glen's accountant in October 2001? A. I do not honestly remember, but I am not saying that we did not do it. Q. Why would you have done it, if you did it? A. Looking at this letter, if somebody no longer wished to remain as your accountant, then you would simply agree to it. Q. If you turn over the page, 309, you see a draft that Subhash has prepared for Roger Laffoley to sign. It is dated the following day. And Subhash, as it were, resurfaces as the accountant, consultant and adviser to Teso. Do you recall that step being taken by Teso? A. I do not recall it. Q. It appears on the face of it, does it not, to be an attempt by Subhash to distance himself from Glen, while still performing the same role but as accountant for Teso? A. It does, yes. Q. Could you please be handed bundle E3? A. I have that. Q. This is a letter at page 379, a copy of a letter from Subhash to Simon, Simon Clark, of Kotecha & Co. Are you familiar with that gentleman or not? A. I have spoken to Mr Clark and corresponded with him, yes. Q. It is dated17th December 2001 and it refers in the title to Ramila Thakrar. Again, I think you mentioned yesterday that you were aware who Ramila Thakrar was? A. That is correct. Q. And if you turn over to page 380, you will see in the second paragraph Subhash stating various facts that he thinks will be of interest to Mr Clark in defence of the claim that was being made against Ramila and in the final sentence you see the wording: "I am no longer accountant to Glen International, as you will also know". So, certainly he is telling the solicitor appointed to act on behalf of Ramila that he had ceased to be the accountant of Glen International; that is correct, is it not? A. That is what this letter says, yes. Q. And the two documents that I took you to a moment ago would seem to be consistent with that position? A. That is correct. Q. Then, four paragraphs down below that, it says: "I trust therefore that you will please protest in the strongest terms to the court for having given permission for Ramila Thakrar to have been joined in this claim." In the final paragraph: "Similarly for Glen, again the same will apply when the papers are served. I have checked with Barry Shelton and the papers are now served incomplete. He will appoint another solicitor for the CMC so that there is no conflict, as agreed with you. I will let you know." Firstly, that perhaps suggests that you were made aware of these proceedings a little earlier than you thought? A. That is correct. Q. But secondly, do we not see here another instance of Subhash on the one hand attempting to distance himself from Glen, while on the other hand, attempting to continue operations on behalf of all Parties, namely himself, Ramila and indeed Glen? A. Sorry, I am not quite sure what answer you expect of me? Q. Well, from your own perspective, does it not suggest that despite the fact that there is an apparent conflict between Subhash and Ramila and Glen, he is still very much involved in directing the litigation, so far as it concerns Glen? A. You are wrong in that respect. I found the solicitors for Glen, that represented Glen in this litigation. And I dealt with them at all times. Q. Sorry? A. I dealt with Quastels. Q. And are you suggesting that Subhash did not deal with Quastels? A. I think he came to a meeting at Quastels to try to explain the position as he saw it in regard to the various claims that were being made. But certainly, he had no input into the final decision that was taken by Glen. Q. Well, I am talking about the conduct of the litigation. I am asking you, is it your evidence that Subhash took no part in the conduct of Glen's litigation? A. I cannot say he took no part because as I say, he came to a meeting but he took no part in the decision-making process in respect of Glen in that litigation. Q. Can I ask you to turn on to page 446? There is another letter from Subhash to Mr Clark. You will see on page 450 that this letter is copied to you. So I take it that you will have received a copy of this letter? A. Very likely, yes. Q. It is headed, "Strictly private and confidential, not to be disclosed to any third Parties". It is addressed to Simon Clark at Kotecha & Co and it is headed, "Ramila L Thakrar/Glen International Limited: security of costs application." So here we have Mr Subhash, himself a Party to these proceedings, apparently having a conflict of interest with Ramila and Glen, yet we see him writing a letter to Ramila's solicitor and dealing with the matter of Ramila and Glen. Again, I would suggest that Subhash certainly regarded himself as having the right and the ability to conduct the litigation so far as it concerned all three Parties? A. That might have been Subhash's opinion. Q. Let me take you on to paragraph 20 of that letter on page 449. He says there: "It is very clear that this is a very high drama, which has been created by the solicitors and courts, so that they can milk the cow, so to speak. This is a very costly affair now for myself, my family, R L Thakrar, my cousin, client for whom I am attorney, Glen International Limited, my other clients ... This is of concern to all and Barry Shelton has already instructed his solicitors to take care and not build up substantial costs. Similarly for Ramila... " Again, it is fairly apparent, is it not, that in this letter, Subhash is regarding the separate claims that have been made against him, Ramila and Glen, in fact as one claim against him and he sees no reason why he should be having to foot the bill for three separate legal representations? A. If that is your interpretation of it, Mr Cranfield. Q. Was it your concern that Quastels should be encouraged not to take too active a role in these proceedings? A. It is always a concern with any Party in litigation that monies are properly spent. That would be my concern, yes, of course. Q. If you would turn over the page to paragraph 26: "Regarding Mr Ferias and Glen's solicitors... " Glen's solicitors were Quastels. Do you know who Mr Ferias is? A. I have never heard of him. Q. If it were spelled F-E-R-R-I-S, would that assist? A. It certainly would not assist me. Q. So you would be unaware that he was counsel instructed by Quastels to represent Glen in this litigation? A. T hat is right, completely unaware. Q. However, Subhash plainly was aware, was he not? A. I do not know. Q. He refers to him by name? A. I assume that perhaps he had seen him at a CMC, I do not know. Q. How does it come about that the company's accountant knows who counsel is, acting for the company, but the company's director does not? A. Because if Quastels had asked counsel to represent Glen at a CMC, then I would not necessarily be interested in the name of the counsel. Mr Subhash presumably met him on that sort of occasion. Q. And Subhash says this: "Regarding Mr Ferias and Glen's solicitors, no doubt, this matter will be taken up by Glen but we certainly do not want to be embarrassed. There should be no challenge from Glen to [Ramila] or vice versa." That appears, does it not, an instruction given by Subhash to Mr Clark acting for Ramila and copied to you, the director of Glen? A. Yes. Q. Why is the decision of whether or not to make a claim against Ramila a matter for Subhash rather than for you, as the director of Glen? A. That is quite right, it is a matter for me. Q. But it is quite plain here that Subhash is telling you what to do, is he not? A. He was not telling me what to do at all. He is suggesting that there should be no challenge from Glen to Ramila. That is different from telling me what to do. Q. Well, he is stating it rather as a peremptory fact: "We certainly do not want to be embarrassed". A. That is up to Subhash Thakrar. I do not write his letters for him. But I certainly do and I certainly did - and it is a proven fact in this particular litigation - act contrary to Subhash Thakrar's wishes. Q. Well, again I am simply pointing out to you in response to your earlier answer, that you thought Subhash's involvement in this litigation was limited to him attending at a meeting of solicitors; it is actually far from reality, is it not? A. I do not wish to be argumentative but so far as Glen was concerned, and myself, that was the limit of his involvement in this litigation. He might have thought that he had a role to play, but I can assure you that he certainly did not. Q. Surely the letter we have just looked at is an example of that, of the role he perceived himself to be playing? A. Writing letters or making self-serving statements or writing self-serving letters does not prove anything at all. I can assure you and I have proof of this and I think it was mentioned earlier, of letters that I have written to Subhash Thakrar -- one in particular I think about this litigation -- which prove that he did not have the input that he would like to have had in this litigation. Q. Would you please move on to page 455? This is a letter written directly to you,12th February 2002 , heading: "Re RL Thakrar, Glen International Limited, purchase of portfolio from SPC Property Company Limited." So, again, he is writing to you in relation to all matters relating to the property portfolio, himself, Ramila Thakrar and Glen. Would you agree with that? A. Yes. Q. If you turn on to paragraph 9 on page 461, this: "It is most important that you also do not capitulate and give the firmest instructions on behalf of Glen and the new shareholders and none of the properties can be given up. The monies have been paid. All the contracts are properly dealt with through the independent solicitors and there has been no undue influence of any kind whatsoever." Again, an objective observer looking at that, who would you say was giving the instructions and who would you say was being sent the instructions? A. Subhash Thakrar is attempting to give the instructions. It does not mean to say that his instructions were carried out and in fact the answer is, I did capitulate. I compromised that litigation, against Subhash Thakrar's express wishes, as you can see. Q. And if you can perhaps now turn on to bundle E3, the same bundle, to page 553. This is a letter written to Mr Roger Laffoley at Glen, because you are away from the office. 7th May, 2002. Do you recall having seen this letter on your return to the office? A. I cannot honestly say whether I have seen it or not. Q. You will see in the third paragraph Subhash says: "I understand Barry is away from the office until Tuesday, and as requested by you, I am writing this to safeguard you with Barry Shelton." You will see in that paragraph, just before those words: "... either Quastels do work in good spirit and with Kotecha & Co and Bowling & Co, otherwise Mr Harjivan will take steps to make changes and this is something, which has been made clear to Barry." Is that right, had it been made clear to you? A. Not so far as I know, no Q. The following paragraph: "Obviously, Mr Harjivan and his family are extremely unhappy about the way the costs of Quastels are building up and there seems to be no control over unnecessary discovery which is being given." Over the page: “I am prepared to assist in a limited fashion, but I will not succumb to threats. Equally, if Julian Spalter of Quastels does make any threats, then Mr Harjivan has promised that he will remove that firm forthwith. This is something you ought to know. I am also having to follow the client's instructions and unhappily, the shareholder's instructions have to be properly respected, otherwise these solicitors will waste substantial amount of hard-earned monies on their fees and costs … Also comparing their hourly fee rates, they cannot be allowed to continue unchecked or without any proper limits set. Our client is extremely upset that he and his family being taken advantage due to their present circumstances and [you] must take this into account as [you] are in a fiduciary position to protect their best interests at all times. False allegations from SPC should not intimidate any professionals into being blackmailed and part with monies and assets wrongly. "We would also like to know what fees have already been paid to Quastels, what are the work in progress and what more is expected. This is important and then a review will have to be done as soon as possible. I await this information urgently so that I may pass it to Mr Harjivan for his further instructions. I wait to hear from Barry Shelton or you next week.”
"We do not perceive to have any conflicts in dealing with the best interests of any of our clients that we have acted for and will act for, now or in the future."
"Similarly for Glen, again the same will apply when the papers are served. I have checked with Barry Shelton and the papers are now served incomplete. He will appoint another solicitor for the CMC so that there is no conflict, as agreed with you. I will let you know."
"... either Quastels do work in good spirit and with Kotecha & Co and Bowling & Co, otherwise Mr Harjivan will take steps to make changes and this is something, which has been made clear to Barry."
“I am prepared to assist in a limited fashion, but I will not succumb to threats. Equally, if Julian Spalter of Quastels does make any threats, then Mr Harjivan has promised that he will remove that firm forthwith. This is something you ought to know. I am also having to follow the client's instructions and unhappily, the shareholder's instructions have to be properly respected, otherwise these solicitors will waste substantial amount of hard-earned monies on their fees and costs … Also comparing their hourly fee rates, they cannot be allowed to continue unchecked or without any proper limits set. Our client is extremely upset that he and his family being taken advantage due to their present circumstances and [you] must take this into account as [you] are in a fiduciary position to protect their best interests at all times. False allegations from SPC should not intimidate any professionals into being blackmailed and part with monies and assets wrongly. "We would also like to know what fees have already been paid to Quastels, what are the work in progress and what more is expected. This is important and then a review will have to be done as soon as possible. I await this information urgently so that I may pass it to Mr Harjivan for his further instructions. I wait to hear from Barry Shelton or you next week.”
“By them having now reached a settlement with Ramila and Glen for a sum of£50,000 in full and final settlement with all waivers, therefore, this does put their side in a great difficulty. They have made a very substantial variation to their claim, and have let off the people who have the properties and benefit of any value in the properties that were previously owned by SPC.”
“28. If I had been aware of these matters in June 2002 I would not have recommended to our Clients to settle the claims against Glen and Ramila for£50,000 . I say this for the following reasons. In the first place, the settlement did not conclude the action. Our Clients still had to face [Subhash’s] claims for fees and interest exceeding£1 million and the legal and other costs that would thereby be incurred. In the second place, had I been aware that Ramila and Glen were effectively [Subhash] in another guise, I could have invited the Court to order single representation for “Thakrar/Ramila/Glen” which would have avoided our Clients’ having to face the prospect of three sets of costs rather than one. In other words, our Clients could in any event have avoided the costs going forwards that was one of the incentives to settle with Ramila and Glen. Thirdly, and perhaps most importantly, it would have become obvious to my firm and counsel, and we would so have advised our Clients, that if our Clients succeeded in their counterclaim against [Subhash] (in circumstances where the claim and counterclaim were proceeding in any event), they would necessarily succeed also against Ramila and Glen. They would succeed against Ramila, because she was making no claim to the [SPC] properties in any event, and they would succeed in their claim against Glen because Glen could have no possible defence of bona fide purchaser for value. At best it was a mere volunteer – the vehicle in the name of which the fraudster, [Subhash], had the [SPC] properties registered. In other words, exactly the same proceedings which in the event took place and resulted in judgment against [Subhash] would, without more, have resulted in judgment against Ramila and Glen. 29. I was aware that the value of the portfolio registered in the name of Glen as at June 2002 was in the millions, and in any event far in excess of the£50,000 offered or purportedly offered on behalf of Ramila and Glen. Had I been aware that the defences to our Clients’ claims run or purportedly run in the name of Ramila and Glen were being run in bad faith, and that the offer of compromise was put forward on their behalf notwithstanding that [Subhash] knew or must have known of their falsity, I would not have recommended to our Clients that they accept it. Had I not recommended the offer, I believe our Clients would not have accepted it.”
“It is ordered as follows: By consent between Group 2, Group 4 and the Trustee, that unless that Trustee shall by10 August 2005 apply to the Court for directions in relation to the contribution proceedings against Group 2 and against Group 4 and in relation to any application for permission to appeal, such proceedings shall be dismissed on that day without further order of the Court.”
“Dear Sirs SK Thakrar & Co v Suburban Property Company Ltd & Others HT-01-151 We act for the Trustee in Bankruptcy of Subhash Thakrar, the former proprietor of SK Thakrar & Co and enclose our notice of acting which we should be grateful if you would place upon the court file. We confirm also the trustee’s position regarding the following issues: The trustee wishes to take no further proceedings in connection with the contribution proceedings against Group 2 and Group 4. …”
“… to do such other things and take such other steps as may be proper or necessary in the fulfilment of their duties called upon to receive the rents and profits.”
“Further to our discussion, I enclose bundles of various documents regarding Glen, Mr Harjivan and what the Solicitors have dealt with, with the Counsel’s Submissions and copy emails, documents. I hope this will help you with sufficient background and if you require anything further please let us know. I will email you Glen’s 2005 accounts, property Schedule and unpaid bills and Court actions due to Shirley Jackson’s non-payment. This should be kept totally confidential on Mr M Harjivan the legal and beneficial owner’s instructions to us. I enclose Balsara & Co’s email re sale of Subhash’s two properties and exorbitant expenses deducted – unchallenged by Shirley Jackson again. Mr Barry Shelton will no doubt also, confirm former written instructions on behalf of Glen International limited to proceed in this regard in due course. Finally, arrangements will be made to put funds into your clients’ account of£15,000 or£20,000 depending on what total sum is available on Monday from M. Harjivan resources he is able to send us, as loan/repayable expense. An application need to be made urgently and Court Order to appoint your firm as Administrator is VITAL to save Glen and destruction of assets, value and claims by the Claiming parties 1 to 6 with their Solicitors, who all do not want to explain their claims – untaxed and disproportionate totally. I will email to you separately Ashok Patel’s email, where he says Glen assets of over£42m will not realise£20m or less. Please highlight that wrong. Kindly acknowledge safe receipt. More to follow by Emails to you. Happy reading. Kind regards to you and Stephen Cork. Thank you both. Kind regards, Kiran Encls”
“14. Regarding the£20,000 paid to Smith & Williams (sic) has been fully and properly explained. There is no need to create a mess for the sake of trying to score points as I have said. They are acting like children and spoilt people, because they themselves see others in the light they wish to see and make false inferences, deductions and assumptions which are totally wrong and without facts. To try and confuse you by giving you the selective documentation with their interpretation put is nothing but fraudulent, false and with extremely bad motives to remove the Administrators under guise of Party 1’s Application 81. I/we have categorically stated that under section 235/236 I am able to assist anybody asking for my assistance and that is what happened. The fact that we have had telephone calls, exchange of emails, providing copy documentation was on the instructions of Glen Directors Mr Barry Shelton and Mr Harjivan and Ms Avni Bhatt also as they had made their decisions and appointed the Administrators. That is what has been dealt with by Mr Barry Shelton on Parole evidence and having fully cross-examined. There were no other challenges made beforehand and it was the Glen Directors only who could make such an Appointment in the UK High Court NOT me – simple fact and the UK Laws which they do know but lie to blame in on me! Why.”
“2. … The£20,000 paid by Mr Harjivan from his family and friends on which he has already written to you on several occasions and therefore, there is confirmation that does exist from him directly much before the event of26 June 2007 when RHF, Solicitors for P1 came again with bad intentions and stole the documentation not for their client but for the benefit of P4. Therefore, this was an illegal activity. Arrangements are in hand to produce an Application before the Bankruptcy Court to stop this malice and to report the matters to the Police, Law Society and/or others to make sure that these abuses can never take place again in future. … .”
“MINUTES OF THE MEETING OF DIRECTORS OF THE COMPANY HELD AT PO BOX 525 2686.601 POTELA LRS LISBOA PORTUGAL ON THE26 MARCH 2007 PRESENT MR Mahindra Harjivan (Chairman) By Telephone Mr B Shelton (Director) Miss Bhatt Mrs Marina Buckley Notice of Notice convening the Meeting was dispensed with and the Directors confirmed that further Meeting meetings will be held in London, England. Resignation Mrs Marina Buckley has tendered her resignation with immediate effect. Mr Barry Shelton thanked her for her work and assistance given to the Company in Jersey Office. Mr Harjivan gave instructions for Company records to record this and deal with necessary formalities. He or Mr Barry Shelton would deal with the necessary formalities. Administration It was discussed as an option to the Directors, who will attend London Accountants, Smith and Williamson, Insolvency Practitioners and Beachcroft, Solicitors to obtain Legal advice and act accordingly to protect the Company’s assets and the maladministration of the Interim Receiver, whose lack of co-operation and not re-letting company properties, unpaid bills and Bank Loans are all causing serious concerns to the Directors and Shareholder. Company’s It was, subject to legal and other advices, considered to open an Office, branch operational Branch to safeguard the Company’s assets and property Portfolio mainly based in England & and London Wales. The address and Offices at 113 Woolwich High Street will be rented and used as Offices its address in England & Wales. The necessary formalities to be attended, when in London Closure IT WAS RESOLVED that the future meetings will be Held at any offices and the meeting was closed. Chairman_(M. H Harjivan)_______”
“No, but decisions were taken by the directors of the company and therefore they, you know, regarded that as a board meeting.”
“… With the benefit of hindsight, my own view is that Subhash was there because he is a nosy individual and wanted to know what was going on.”
“… If the judgment does find that he is the beneficial owner of shares, then its fairly understandable that he will have some interest in the residual beneficial ownership, should there be one.”
“whose lack of co-operation and not re-letting company properties, unpaid bills and Bank Loans are all causing serious concerns to the Directors and Shareholder.”
“BS was advised that if Teso or any party had a floating charge then they would need to be notified of the administration and be asked to consent to it. BS said that he would let Teso know: he had, in fact already told Teso’s directors of the intention to place Glen into administration if professional advice confirmed and Teso were content with this agreeing that administration was right in the circumstances.”
“Roger, Glen by its directors has placed itself in administration. This has horrified our opponents in litigation as it places a moratorium on the proceedings. They are therefore trying to make the point that the administration is invalid because we did not have the consent of Teso who had a charge over Glen assets. They claim that the charge is still valid. This is extraordinary given the fact that they were instrumental in having the charges cancelled by Judge Thornton! However, just to be on the safe side (and knowing what Thornton is like), I wonder if Teso, could confirm to Jo Milner, the Joint Administrator that they have no problem with Glen being placed in administration and formally give its consent. Thanks Best regards Barry”
“The Legal actions in Court of Appeal and recusal applications made for HH Judge Thornton QC, to continue with the consent Smith & Williamson on legal advice to obtain.” (2) Only Subhash knew about, or was actively involved in the Thakrar Family members’ appeal, which does not involve Glen in any event, and only he felt strongly about the necessity and desirability of maintaining the recusal application. Indeed, Mr Shelton stated that he was very relieved when the administrators decided to abandon Glen’s recusal application, thereby indicating that he regarded the application as hopeless or misconceived. Only, Subhash, would have been concerned that the administrators’ appointment should not jeopardise the pursuit of the recusal application. (3) Subhash prepared the documentation which was submitted to Smith & Williamson prior to their appointment and he also drafted or helped to draft Glen’s answers to Smith & Williamson’s COMI checklist which Ms Milner sent to Subhash and which was answered in the names of Mukesh and Mr Harjivan on 30 March. (4) Subhash concocted without any other assistance the “minutes” of the two directors’ “board meetings” that purportedly took place on 26 and28 March 2007 . (5) Subhash attended the meeting on29 March 2007 so as to ensure that he knew what was discussed and managed to inveigle his way into the meeting masquerading as Mr Harjivan’s interpreter. Mr Stubbs finally twigged to the fact that Subhash’s purpose in attending was to find out what was said because he is such a busy body. (6) Subhash put together the documentation lodged at court to confirm the appointment of the administrators and the failure to hold any kind of board meeting to confirm the directors’ decision to appoint Smith & Williamson’s representatives as co-administrators on13 April 2007 was entirely due to Subhash’s oversight in failing to ensure that this took place. (7) Subhash with Mukesh’s assistance drafted the list of creditors used to found the appointment of the administrators. (8) In two e-mails to Mr Stubbs on10 April 2007 , Subhash was seeking to use the administration for various extraneous and improper purposes: (i) He asserted that I had removed all securities that Glen had given to Teso and that he did not understand why or how I had removed them. In fact, only the securities over his own properties had been removed and that only after Mr Shelton had stated on oath that these securities were, in effect, bogus and a sham and did not support any indebtedness owed by Glen to Teso. Subhash has, on other occasions in his e-mails to the court, spoken highly critically of Mr Shelton in giving this evidence but no evidence has ever surfaced that these charges support any loans made by Teso or are anything other than a subterfuge to deter Glen’s creditors from enforcing against Glen’s assets. (ii) He asserted that the charges supported various inter-company loans. There were no inter-company loans, indeed Teso only opened a bank account very recently. These so-called loans are no more than fictitious entries in the accounts of Glen and Teso which Subhash himself drew up. (iii) He asserted that Glen’s shareholders had lent money and invested in Glen and that this indebtedness was protected by debentures in favour of Teso. There was no such indebtedness and no supporting debentures provided as security. (iv) He asserted that Mr Harjivan was the beneficial owner of Glen. (v) The assistance of the administrators was urged to support and take steps to obtain the reinstatement of the Teso charges and to defeat the claims made for Mr Harjivan’s beneficial ownership of Glen. (9) He was provided with a draft of Ms Milner’s witness statement prepared in opposition to the paragraph 81 application and provided extensive comments on the draft and with Mukesh prepared a list of documents and dates which purportedly showed up Ms Jackson’s defaults as Receiver and Trustee which were provided to Ms Milner. (10) He took it upon himself to e-mail the court and all parties what Glen’s position was in response to my e-mail to the parties seeking from them a statement of their positions. In that e-mail, he informed the court that the proceedings against Glen were stayed and would remain stayed until the Companies’ Court, rather than the TCC, had given directions. Glen was stated to be leading the recusal application and the TCC was urged to suspend the Thakrar Litigation in its entirety until the Companies Court had expressed an opinion as to what should happen. This e-mail led to Mr Stubbs e-mailing Subhash and stating: “This is really unhelpful! Please let the administrators speak for themselves. This is very sensitive stuff and we are concerned that such interventions could be very unhelpful.”
“Quite”. (11) He provided detailed comments to Ms Milner on the response document prepared by Parties 1 and 4. These included this misstatement of the effect of the appointment of administrators: “The appointment of administrators certainly stops all the Court proceedings against Glen as party 14. However, there are valuable contribution proceedings, there are costs claims (by Subhash) and the compromise agreement of 2002 on which a defences needs to be put in and the point should be addressed by the Directors and Administrators with their lawyers.”
“We put everything in that there could possibly be said to be against.”
“123. (a) if a creditor (by assignment or otherwise) to whom the company is indebted in a sum exceeding£750 then due has served on the company … a written demand (in the prescribed form) requiring the company to pay the sum so due and the company has for 3 weeks thereafter neglected to pay the sum or to secure or to compound for it to the reasonable satisfaction of the creditor; or … (e) if it is proved to the satisfaction of the court that the company is unable to pay its debts as they fall due.”
“(2) Where a company is in administration, any receiver of part of the company’s property shall vacate office if the administrator requires him to.”
“The purchase consideration was paid in late 1999 and early 2000 and Mr Harjivan also settled various outstanding loans to third parties in East Africa, India, Spain, Portugal and the UK”
“The Fifth Respondent claims to be the sole shareholder in and beneficial owner of the First and Second Respondents”
“I could not resist lying.”
“I am able to give, by way of general indication, the view that if I had any jurisdiction to hear or deal with this application, if mounted now, I would start from the standpoint that it was an application which had much merit and would require very careful consideration”
“The precise relief sought will depend upon the facts found at the first stage of the trial”