Claim No. SCT 356/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
In the name of His Highness Sheikh Mohammed Bin Rashid Al Maktoum, Ruler of Dubai
IN THE SMALL CLAIMS TRIBUNAL
BEFORE SCT JUDGE DELVIN SUMO
BETWEEN
MADA
Claimant
and
MABLI
Defendant
| Hearing : | 18 February 2022 |
|---|---|
| Judgment : | 21 February 2022 |
JUDGMENT OF SCT JUDGE DELVIN SUMO
UPONhearing the Claimant’s representative at the Hearing
AND UPONthe Defendant failing to attend the Hearing although served notice of the Hearing date
AND PURSUANT TORule 53.61 of the DIFC Courts of the Rules of the DIFC Courts
AND UPONreading the submissions and evidence filed and recorded on the Court file
IT IS HEREBY ORDERED THAT:
1. The Defendant shall pay the Claimant the amount of AED 51,634.44 (the “Amount”).
2. The Claimant’s claim in the amount of AED 10,226.24 shall be dismissed.
3. The Defendant shall pay the Claimant a portion of the DIFC Courts’ filing fee in the amount of AED 2,581.72.
4. In the event that the Defendant fails to comply with Paragraph 1 within 21 days from the date of this Order, interest at the rate of 9% per annum, pursuant to Practice Direction No 4 of 2017 (Interest on Judgments) shall accrue on the Amount from the date of filing this Claim until the date of full payment.
5. The Claimant shall serve this Order upon the Defendant.
Issued by:
Ayesha Bin Kalban
SCT Judge and Deputy Registrar
Date of issue: 21 February 2022
At: 9am
SCHEDULE OF REASONS
The Parties
1. The Claimant is Mada, a bank providing financial services to customers (the “Claimant”).
2. The Defendant is Mabli, an individual customer of the Claimant (the “Defendant”).
Background
3. On 16 December 2021, the Claimant filed a Claim with the DIFC Courts’ Small Claims Tribunal (the “SCT”) seeking recovery of sums allegedly owed to the Claimant by the Defendant in relation to a personal loan, a credit card and a current account.
4. The Claimant is seeking the total sum of AED 61,860.68 together with post-judgment interest on the sums due, as well as the recovery of the DIFC Courts’ filing fee in the amount of AED 3,093.05.
5. The matter was called for a Consultation before SCT Judge Maitha AlShehhi on 3 February 2022. Although both of the parties were in attendance, they failed to reach a settlement.
6. In accordance with the rules and the procedures of the SCT, the matter was referred to me for determination, pursuant to a hearing held on 18 February 2022 (the “Hearing”). The Defendant failed to respond to the claim or attend the Hearing, although served notice of the hearing date.
7. In light of the Defendant’s failure to attend the Hearing and respond to the Claim, I shall decide this claim based on the Claimant’s submissions before me pursuant to RDC 53.61, which reads as follows:
“If a defendant does not attend the hearing and the claimant does attend the hearing, the SCT may decide the claim on the basis of the evidence of the claimant alone”.
The Claim
8. The parties entered into a written agreement on 9 September 2019 entitled ‘Personal Loan (Salary Transfer) Salary Overdraft Credit Card Application Form’ (the “Madrona Agreement”). Under the terms of the Madrona Life Agreement, the Claimant received a loan in the amount of AED 79,000 to be repaid in 48 monthly instalments in the amount of AED 2,305 (the “Loan”). The Claimant alleges that the Defendant fell into arrears on 12 December 2021 and claims that the outstanding sum of the Loan amounts to AED 51,634.44.
9. The Defendant further received a Madrona Cashback Card in accordance with an agreement dated 9 July 2019 in the amount of AED 3,000 (the “Credit Card”). The Claimant alleges that the Defendant fell into arrears and claims that the outstanding sum on the Credit Card amounts to AED 2,212.43.
10. The Claimant further claims an amount of AED 8,013.81 in relation to amounts accrued in the Defendant’s the Madrona Current Account (the “Current Account”).
Discussion
11. Rule 53.2 of the RDC requires that the SCT only hear cases that fall within the jurisdiction of the DIFC Courts. The relevant wording is set out below:
“The SCT will hear and determine claims within the jurisdiction of the DIFC Courts:
(1) where the amount of the claim or the value of the subject matter of the claim does not exceed AED 500,000 or;
(2) where the claim relates to the employment or former employment of a party; and
all parties elect in writing that it be heard by the SCT (there is no value limit for the SCT’s elective jurisdiction in the context of employment claims); or
(3) which do not fall within the provisions of sub-paragraph (1) or (2) above, but in respect of which:
a. the amount of the claim or the value of the subject matter of the claim does not exceed AED 1,000,000; and
b. all parties to the claim elect in writing that it be heard by the SCT, and such election is made in the underlying contract (if any) or subsequent to execution of that contract.”
12. The jurisdiction of the DIFC Courts is determined by Article 5(A) of the Judicial Authority Law, Dubai Law No. 12 of 2004, as amended (the “JAL”), which provides a number of limited gateways through which the DIFC Courts may exercise jurisdiction over a claim, which are, as relevant:
“1. The Court of First Instance will have exclusive jurisdiction to hear and determine:
“(a) Civil or commercial or Employment claims and actions to which the DIFC or any DIFC Body, DIFC Establishment or Licensed DIFC Establishment is a party;
(b) Civil or commercial or Employment claims and actions arising out of or relating to a contract or promised contract, whether partly or wholly concluded, finalised or performed within DIFC or will be performed or is supposed to be performed within DIFC pursuant to express or implied terms stipulated in the contract;
(c) Civil or commercial or Employment claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within DIFC and is related to DIFC activities; …
(e) Any claim or action over which the Courts have jurisdiction in accordance with DIFC Laws and DIFC Regulations…
(2) …civil or commercial claims or actions where the parties agree in writing to file such claim or action with [the DIFC Courts] whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions.”
13. Pursuant to Article 5(A)(2) of the JAL, the DIFC Courts can exercise its jurisdiction over a matter that is unrelated to the DIFC, where the parties have agreed in writing that any dispute arising between them would be referred to the DIFC Courts for adjudication. Such a provision would allow the parties to ‘opt-in’ to the DIFC Courts’ jurisdiction, provided that it clearly demonstrates the parties’ intention to do so.
14. I note that, in regards to the Madrona Agreement, by virtue of an opt-in clause found at Clause 18 of the Agreement, I am of the view that the parties have opted into the DIFC Courts’ jurisdiction to hear and determine this matter. The relevant opt-in clause states as follows:
“The civil courts of the individual Emirates, the Federal Civil courts of the United Arab Emirates, and the Courts of the Dubai International Financial Centre, (including without limitation the Small Claims Tribunal of the DIFC), shall have non-exclusive jurisdiction over all matters arising under the Products’ terms and conditions save that the Bank shall have the right to file actions in any court with jurisdiction over you or your assets”.
15. Based on the submissions of the Claimant, and in the absence of any substantial evidence being put forward by the Defendant in relation to the Loan, I am satisfied that the Madrona Agreement between the parties is valid and binding.
16. Upon reviewing the Claimant’s submissions, it appears that the Credit Card agreement filed by the Claimant does not contain an express clause by virtue of which the DIFC Courts would be able to exercise jurisdiction over these Claims. Moreover, the Claimant failed to provide any proof or evidence in support of its Current Account claim.
17. In light of the Claimant’s submissions, I am of the view that, in the absence of any supporting documents and a clear written opt-in clause to the DIFC Courts’ jurisdiction between the parties, the DIFC Courts cannot adjudicate over the Credit Card and Current Account Claims.
18. Therefore, I dismiss the Claimant’s claim for AED 10,226.24 in relation to the outstanding sums owed pursuant to the Credit Card and the Current Account.
Conclusion
19. In light of the aforementioned, I find that the Defendant shall pay the Claimant the amount of AED 51,634.44 for the sums owed to it under the Madrona Agreement.
20. The Claimant’s claim for AED 10,226.24 in relation to the outstanding sums owed pursuant to the Credit Card and Current Account shall be dismissed.
21. The Claim value set out by the Claimant in the Claim Form is AED 61,860.68, pursuant to which the Claimant has paid a fee of AED 3,093.05. Taking into consideration the Claimant’s failure to succeed on all of its claims, I find it appropriate to apply a set-off to the fee that has been paid against the judgment sum awarded. Therefore, it is hereby ordered that the Defendant shall pay the Claimant a portion of the Court fee in the amount AED 2,581.72.
22. In the event that the Defendant fails to comply with Paragraph 19 within 21 days from the date of this Order, interest at the rate of 9% per annum, pursuant to Practice Direction No 4 of 2017 (Interest on Judgments) shall accrue on the Amount from the date of filing this Claim until the date of full payment.
23. The Claimant shall serve this Order upon the Defendant.