Suzlon Energy Ltd v Bangad

Suzlon Energy Ltd and others sought to enforce notices to produce against three foreign banks in relation to financial transactions that were relevant to an ongoing dispute. The banks challenged the enforceability of the notices on the basis that compliance would require them to produce documents that would breach Swiss banking secrecy and criminal laws. The primary issue before the court was whether the notices to produce could be enforced against the foreign banks despite the potential breach of foreign law. The court considered the principles of private international law and the balance between the coercive power of the court and the respect for foreign jurisdictions.

The court found that there were substantial grounds to believe that enforcing the notices to produce against the banks would require them to breach Swiss law, which would result in criminal liability. The court noted that while Swiss law did not absolutely prohibit the disclosure of the requested documents, there were significant risks and penalties for the banks if they were to comply with the notices. The court also considered the principle of restraint in using compulsory court processes against foreigners who challenge the jurisdiction of the court. The court concluded that it was not appropriate to require the banks to produce the documents at that time, given the significant risk of them contravening Swiss law. The court ordered that the banks were not required to produce the documents in answer to the notices to produce until further order.

The court also considered the potential forensic consequences of an order relieving the banks of any obligation to produce documents by reason of Swiss banking secrecy laws. The court noted that this question had not been addressed by the parties and that it might need to be reconsidered depending on the outcome of other interlocutory applications and proceedings. The court ordered that the second cross claimants pay the costs of the banks’ interlocutory applications to set aside, or excuse compliance with, the notices to produce.