However, what Mr Kerkar said was that he “understood” that the personal guarantee was not going to be called upon being “purely procedural”. The Judge put out a robust and very clear assessment of what Mr Kerkar said as follows:
I find it inherently implausible that a man of Mr Kerkar’s extensive business interests would have been prepared to rely on a statement, the meaning of which was not clearly articulated, made four months earlier, in relation to a different lending arrangement, that contrary to the clear and express wording of the agreement he was about to sign, it would not seek to rely upon his personal guarantee. There is nothing to negate the express agreement contained in the guarantee.
This notably strong position adopted by the Court rejected cleanly the position of the party attempting to dispute the debt of IPIV, ie. Mr Kerkar.
There was a further position adopted by Mr Kerkar in respect of an alleged fraud claim apparently perpetrated against his group of which the company PHUK was a party.
This suggestion did not help Mr Kerkar because he could not satisfy the Court of any of the fraud suggestions that he put forward. They were based on certain matters of belief as the Court said the following:
In my judgment, Mr Kerkar’s cross claim in relation to the fraud committed against C&K falls squarely within the types of cases contemplated in Lady Anne Tennant. It is all surmise, based on his unsubstantiated belief that Mr Maheshwari, as the controller behind all SSG entities, is somehow responsible for PHUK’s inability to repay monies it borrowed from the Respondent which he guaranteed. With the optimism of Mr Micawber he appears to have hoped to have persuaded the court that within the tangled web of allegations of fraud that he has raised, the court will find a cross-claim which bears a real prospect of success and justifies setting aside the statutory demand and sending the Respondent back to square one to start Part 7 proceedings.
Allegations of fraud do not, of themselves, compel the court to conclude that further investigation is warranted. For the reasons I have given, the evidence which Mr Kerkar has placed before the court, even against the background that he seeks to paint by reference to claims in the USA regarding PISL and his allegations of fraud and forgery concerning transactions SSG Capital and two BVI companies, do not support his allegations of fraud to the extent of meeting the threshold test of persuading the court that any one of them has a real prospect of success.
…
In conclusion, I find that the evidence provided raises no more than a cloud of objections. For the purposes of Rules 10.5(5)(a) and 10.5(5)(b) there is no or insufficient evidence to support the allegations made to satisfy the court that there is a real prospect of success. For the purposes of Rule 10.5(5)(d) there are no other grounds on which the demand ought to be set aside.
When handing down this judgment, I shall dismiss the application and make an order authorising the Respondent to present a bankruptcy petition against Mr Kerkar.
Oliver Elliot Observation
This case should serve to highlight how you might need to get your ducks in a row to have the necessary evidence and records available to you to dispute a Statutory Demand if you feel that you have good cause to do so. Both this case and the post Appeal Against Statutory Demand Rejected – “if there was a fraud it was a good fraud” suggest that the Court will look with care at fraud allegations.