Sudhir Ruparelia has rejected as “incompetent” and an “abuse of court process” an attempt by Crane Bank (in receivership) to introduce an “alternative cause of action” seeking payment of $52m (Shs 189bn) from the Kampala businessman, Chimp Corps report.
According to the notice of motion and affidavit sworn by a one Margaret Kasule,Crane Bank also wants specific performance by way of delivery up of the Certificates of Title and duly executed transfer deeds in respect of the 47 freehold/mailo titles purportedly under clause 3 of the Confidential Settlement and Release Agreement (CSRA).
But Sudhir says in his affidavit in reply that “all the money under the CSRA was the strict entitlement of the Bank of Uganda only and Crane Bank Limited (in receivership) has no right to the USD 52m or any sum of money under CSRA.”
The former Crane Bank proprietor further contends the CSRA clause specifically states “that the $60m shall be paid to Bank of Uganda.”
In March this year, the tycoon on one hand, and BoU and Crane Bank on the other, entered a Confidential Settlement and Release Agreement (CSRA).
The agreement was hoped to save the two parties a long and protracted legal battle after they came at him with accusations that he mismanaged and misappropriated hundreds of billions of Shillings from CBL.
Under the CSRA, Sudhir undertook to pay to pay BoU $60Million (about Shs. 217bn) in cash and real property, in a specified number of installments.
But the parties later disagreed on the quality of assets Sudhir handed to BoU.
According to Clause 7 of the March agreement, the two parties had undertaken “not to sue…or prosecute against any other party…concerning the related claims, in Uganda or in any other jurisdiction.”
Clause 12 of the CSRA provides that “without prejudice to the immediately foregoing, should any legal or administrative proceedings of any kind ensue against Sudhir Ruparelia (SR) (as defined in the agreement), the agreement stands voided and BoU shall immediately return to SR the value and settlement of consideration in immediately available funds.”
Sudhir says when Crane Bank filed the case against him, the “entire agreement was voided” as per clause 12 and neither Crane Bank Limited (in receivership) nor bank of Uganda can “seek to enforce their rights under CSRA.”
He further states that the application and proposed amended plaint does not disclose a cause of action as Crane Bank has no “locus under CSRA to sue for any money.”
The businessman says Crane Bank’s main intention is to defeat his defense filed on June 30, 2017, adding, the proposed cause of action is “barred by the principle of approbation and reprobation.”
He added: “Crane Bank Limited (in receivership) having made an election to abandon the CSRA cannot resile from that election.”
The proposed amendment also attempts to make changes with regards to the manner in which Rasik Kantaria became a shareholder in Crane Bank.
Crane Bank intends to change the allegation that Kantaria’s dividends ended up with Sudhir by claiming that the latter received Shs 35,835,701,265 instead of Shs 35,234,253,980 from Kantaria.
Sudhir says the change is significant as the original figure of Shs 35,234,253,980 which Crane Bank Limited (in receivership) intends to amend was based on an annexure to the plaint which was an extract of a draft document by Price Watercoopers (PwC) dated November 13, 2014.
He further argues that the figure of Shs 35,234,253,980 actually comes from the PwC document of 2017 which he says is different from the one dated November 13 2014 not just in date as alleged but also in form and content.
“The amendment to align the figures in the plaint with the 2017 PWC Document implies that Crane Bank Limited intends to change all the annexures that were prepared by PWC in November 2014 and replace them with the new annexures dated 2017 and therefore intends to amend annexures A, B, C and H to mention but a few, of the plaint to remove the 2014 document and defeat my defence,” says Sudhir who is represented by Kampala Associates and Advocates.
PWC carried out the forensic investigation into Crane Bank’s financial transactions after being taken over by the Central Bank but lawyers have questioned the authenticity of its findings.
On the other hand, under the alternative cause of action, Crane Bank Limited claims to have discovered “shareholding irregularities, fraudulent extractions and misappropriation of immovable assets” on January 13, 2017 when PWC allegedly released its forensic report.
Sudhir says the purpose of this amendment is to “defeat my defense of limitation of the written defense.”
He contends that the PWC document is the foundation of Crane Bank’s case as the amendment seeks to suggest, adding, the refusal to disclose the 26 documents mentioned or alluded to in the plaint to prepare his defense amounted to “an attempt at trial by ambush and abuse of court process which cannot be sanctioned by way of amendment.”
The property mogul further states that “any party not complying with the notice to produce documents, shall not afterwards be at liberty to put any such document in evidence.”
The legal battle between Sudhir and Central bank has been raging on for the last few weeks, dragging in auditors, private lawyers and businessmen.
Sudhir says BoU’s application “does not disclose a cause of action, the 1st applicant (Crane Bank) has no locus, the application is intended to defeat the preliminary points of law, is incompetent, duplicitous, an abuse of court process, frivolous, vexatious, based on misleading evidence of Ms Margaret Kasule and will unfairly prejudice the respondents which prejudice cannot be atoned for by way of costs.”