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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Red River (UK) Ltd & Anor v Sheikh & Anor [2009] EWHC 431 (Ch) (09 March 2009) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2009/431.html Cite as: [2009] EWHC 431 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) RED RIVER (UK) LIMITED (2) ISMAIL DOGAN |
Claimants |
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- and - |
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(1) ANAL SHEIKH (2) RABIA SHEIKH |
Defendants |
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Mr Philip Newman (instructed by Ms Anal Sheikh) for the Defendants
Hearing date: 2 March 2009
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Crown Copyright ©
Mr Justice Henderson :
(a) a restriction dated 19 October 2005 that "No disposition of the registered estate by the proprietor of the registered estate is to be registered without a written consent of Rabia Sheikh care of Ashley & Co, 49 Blackbird Hill, London NW9 8RS"; and
(b) a restriction dated 9 June 2006 that "No disposition of the registered estate by the proprietor of the registered estate is to be registered without a certificate signed by Anal Sheikh of 49 Blackbird Hill, London NW9 that she is satisfied that the person who signed the consent required by the above restriction registered on 19 October 2005 is Rabia Sheikh".
"that no disposition of the registered estate by Red River could take place without the written consent of Miss Sheikh's mother, such consent to be certified by Miss Sheikh."
"10. Paragraph 10 [of the particulars of claim] is admitted save that for the avoidance of doubt the first restriction of 19 October 2005 was registered prior to any dispute arising between [Miss Sheikh] and [Mr Dogan] and the purpose of that restriction was to protect [Miss Sheikh's] original loan for the acquisition of the Property and subsequent advances and interest set out [in her] Capital Account calculated up to 29 June 2007 and totalling £832,418.42, the registration of which [Red River] agreed at the time."
(a) the provision in clause 2.1 of the settlement agreement, whereby the documentation needed to remove the two restrictions was to be delivered by Miss Sheikh to Red River's solicitors, Isadore Goldman, within seven days, to be held to the order of the Sheikhs until the payment of £300,000 due to them on or before 31 July 2007 under clause 1.1 had been made;
(b) the composite transaction envisaged by the settlement agreement, whereby Red River would enter into a second charge in favour of the Sheikhs to secure the total payments of £1.2 million plus interest due to them under clause 1 on or before 29 December 2009, subject only to a replacement first charge in favour of the Bank of Ireland securing advances of up to £1.75 million; and
(c) the undertaking to the court by Red River, contained in the schedule to the consent order made by Kitchin J on 3 September 2007 ("the consent order"), whereby Isadore Goldman undertook to hold the documents delivered to them by the Sheikhs (i.e. the forms RX4 required to remove the restrictions, together with a stock transfer form duly executed by Miss Sheikh's mother in respect of her holding of 35% of the shares in Red River) to the Sheikhs' order pending payment of the £300,000 due under clause 1.1 of the settlement agreement, execution by Red River of a second legal charge in compliance with the settlement agreement, and the execution of a deed of priorities between Red River and the Bank of Ireland in accordance with paragraph 4 of the schedule to the consent order.
"As to the documents we hold, these are retained under the terms of the Consent Order dated 3 September 2007. … We make it clear to you now that we have no, nor have ever had any, intention to release the RX4s other than on notice to you, in conjunction with an overall re-financing of the Property which will discharge such liability as our clients have to you under the terms of the Settlement Agreement.
If it puts your mind at rest we confirm that we will continue to hold the RX4s and not release them other than with your agreement or by order of the Court."
Red River accordingly made it clear to the Sheikhs, by the above letter, that the RX4 forms and the executed share transfer were held by Isadore Goldman to the order of the Sheikhs, and that they would continue to be so held until a refinancing arrangement was in place which would discharge the entirety of Red River's outstanding liability to the Sheikhs under the terms of the settlement agreement. Furthermore, those are the terms on which the relevant documents are still held today by Isadore Goldman, subject only to the relief which is now sought in the present application.
"to make no further claim to any interest of whatever nature howsoever it arises in the Property and not encumber in any way the title to the Property and the proposed interest of any purchaser."
(1) that the two restrictions on the title to the property in the name of the Sheikhs be removed from the title, and the RX4s at present retained by Isadore Goldman be released to them unconditionally;
(2) that the unilateral notice held on the title in the name of Miss Sheikh's mother be removed from the title, and the unilateral notice cancellation form now held by Isadore Goldman be released to them unconditionally; and
(3) that the stock transfer form relating to the interest of Miss Sheikh's mother in Red River take effect and be released to Isadore Goldman unconditionally.
There is then a proviso that if HM Land Registry require any other forms to be filed to facilitate the clearing of the title, the Sheikhs will execute the same within two days of receipt of the forms by fax or email and return them to Isadore Goldman immediately, in default of which Isadore Goldman are to be authorised to complete the forms on behalf of the Sheikhs.