Chand v Nand [1992] FJHC 55; Hbc0435j.91s (6 November 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 435 OF 1991

Between:

VIJAY CHAND
s/o Ram Prasad
Plaintiff

- and -

KALYA NAND
s/o Rattan
Defendant

Mr. V. Maharaj for the Plaintiff
Mr. A. R. Matebalavu for the Defendant

JUDGMENT

On the 4th of September 1991 the plaintiff a school teacher issued a Writ of Summons against the defendant claiming that:

"On the 3rd of July 1991 (he) lent and advanced to the Defendant at the Defendant's request a sum of $11,000 which was to be repaid by the Defendant upon demand."

In his defence the defendant denied owing the plaintiff any money and averred that the money (which he does not deny receiving) was sent to him "upon the request of Vektesh Naidu" following arrangements made between Vektesh and the plaintiff.

I remind myself that this being a civil action the plaintiff bears the burden of proving his claim to the satisfaction of the Court on a 'balance of probabilities'. I also note at the outset that 'Vektesh' was referred to as 'Yengtesh' throughout the evidence.

The evidence led before the Court came from the plaintiff and the defendant and at the end of the evidence both counsels addressed the Court.

The plaintiff's case is that on the 3rd of July 1991 at the request and urging of his brother-in-law Janardan (alias 'Johnny') living in Sydney he transferred by way of telegraphic transfer, a sum of $11,000 from his Westpac Savings account at Nausori to the defendant's Westpac account in Sigatoka. He obtained the defendant's bank account number from the defendant who rang and spoke to him prior to the money being sent and after his brother-in-law had spoken with him.

On that occasion the defendant had said that he needed the money for a business deal and more importantly he also agreed to repay the money after 3 weeks.

The plaintiff also testified that he knew Yengtesh Naidu who also lived in Sydney, but denies that it was he who had asked him to lend the money to the defendant.

In cross-examination the plaintiff confirmed that at the time he sent the money to the defendant he did not know him nor had he met the defendant neither had the defendant personally requested him for a loan. In the plaintiff's own words:

"I gave the money to the defendant only because my brother-in-law had asked me to give the money to the defendant."

No interest was charged on the loan as it was only meant to be a short term loan of 3 weeks duration.

The defendant, a businessman, for his part confirmed that he had received $11,000 which was credited to his bank account by telegraphic transfer. In his own words:

"I had a friend Michael Naidu whom I dealt with. He promised me he would make arrangements for the money to be paid to me. I received a call from Suva from one Vijay Chand (the plaintiff) who asked me my account number and he told me that Michael Naidu had arranged for me to receive about $11,000 into my account. Michael Naidu is the same person as Yengtesh Naidu who owed me money and referred to in my Statement of Defence as Vektesh Naidu. I've known Yengtesh for about 30 years."

He too denied knowing the plaintiff or ever dealing with him prior to this incident. Neither had he ever seen him until the trial. He denied there was any 'agreement' between them for any loan or repaymenthe money.

In cross-examination he denied knowing Janardan (the plaintlaintiff's brother-in-law) although he admits having visited him once in Sydney about 2 years previously in the company of Yengtesh. He had not seen or spoken to Janardan since. He denied that he had rung the plaintiff or mentioned Janardan's name in their telephone conversation.

He had never promised to repay the money and had not sought to call Michael Naidu as a witness since the 'arrangements' (whatever they might have been) were made between Michael Naidu and the plaintiff and not with him. For the same reason he has not repaid the plaintiff.

From the above it is clear that there is no dispute that the plaintiff transferred the money and the defendant received it. It is also clear that at the relevant time and for all intents and purposes the parties were 'complete strangers' and that either Yengtesh Naidu or Janardan (or both) were somehow 'involved' in the transaction.

Learned counsel for the plaintiff however appeared to suggest that because the money was paid to and received by the defendant therefore he should be made answerable for it. The only 'role' played by Janardan in the whole affair was that he vouched for the defendant's trustworthiness. Yengtesh Naidu was presumably not involved in any relevant capacity.

Learned counsel for the defendant on the other hand submits that the plaintiff paid the money to the defendant pursuant to the request and assurance of someone other than the defendant. Whatever the nature or details of the 'request' or 'assurance' remains at best 'hearsay' in the absence of the third person(s).

Both counsels are agreed however that the sole question for the court is:

Whether there was any agreement between the plaintiff and defendant regarding the $11,000 pursuant to which the plaintiff lent the money to the defendant and the defendant agreed to repay the plaintiff?

The question although easily framed is not as easily answered having regard to the paucity and nature of the evidence adduced by both parties and the apparent absence of a "broker" common to them.

If I accept the plaintiff's evidence in its entirety then one has the incredulous situation of a reasonably educated mature man lending to a 'complete stranger' (albeit vouched for by his brother-in-law) a large sum of money interest-free and unsecured upon the borrower's oral undertaking on a telephone call to repay him the money.

On the other hand the defendant's story which is equally unconvincing is that he had asked a friend of his in Sydney (not the plaintiff's brother-in-law) for the money and it was later paid into his account by a 'complete stranger' in Fiji who telephoned him (out of the blue so-to-speak) and requested details of his bank account.

If I may say so the evidence in this case is so very finely balanced that it is impossible in the absence of the evidence of either Yengtesh or Janardan (though preferably with the assistance of both), to decide which of the two 'versions' to prefer.

In the result I find that the plaintiff has failed to discharge the burden of satisfying me that the answer to the question earlier posed is "Yes" and accordingly I would answer it in the negative and dismiss the action with costs to the defendant to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
6th November, 1992.

HBC0435J.91S