Sharma v Sharma [1998] FJHC 183; Hbc0618d.93s (22 May 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 618 OF 1993

Between:

SURESH PRAKASH SHARMA
Plaintiff

and

JUDITH SASHI LATA SHARMA
1st Defendant

and

ANZ BANK LIMITED
2nd Defendant

Mr. D. Sharma for the Plaintiff
Mr. S. Parshotam for the 1st Defendant

DECISION

By Summons dated 14 November 1997 the first defendant (the "defendant") is seeking an Order that the Injunction granted herein by Orders dated 1 December 1993 and 8 December 1993 may be dissolved. The Order of 8 December stated, inter alia, that the defendant be allowed to operate the savings account being account No. 272-847219-31 and cheque account No. 272-87219-00 and that "all other accounts operated in the name of Judith Sashi Lata Sharma remain frozen until further Order of this Court".

The Summons was heard on 14 January 1998 when both counsel made their submissions. They referred to the Affidavits filed herein.

Background - Parties' contention

The Statement of Claim sets out, inter alia, the relevant facts.

The parties are husband and wife and married on 23 May 1984. It was decided then that all bank accounts and assets would be in the name of the defendant with the second defendant bank.

Over the years with the contributions by both parties considerable sums of money accumulated in the various accounts, namely, 272-847219-85, 272-847219-30 and 272-847219-31. It is not in dispute that the parties were divorced in 1997 but prior to that at the time of the issue of the Writ of Summons herein there were matrimonial differences when, it is alleged the defendant took with her the assets acquired during the marriage. It is stated that on or about 26 November 1993 there was close to $41,000.00 in fixed account, $2100.00 in Savings Account and $220.00 in the Passbook Account. It is the Plaintiff's complaint that the defendant denied him all access to the bank accounts and the assets of the marriage.

The defendant contends that $41,000 is her money which she received from her personal injuries claim; $2100.00 is wages and salaries operating account and $220.00 is "Anushma's savings account" (vide Affidavit in Reply).

She denies that the Plaintiff is entitled to any share in `my' money or any asset, as they hardly had any assets.

The Plaintiff's main argument is that although he admits that the "nett sum of $38000 was granted after she (the defendant) was involved in car accident", he is "entitled to a claim against the monies since my funds were used for the first defendant's medical and transportation costs when she had to fly to Australia after her accident". He said that at the time the claim was lodged the medical and transport costs amounted to $16,522.41 (vide item 6 of Affidavit in Response).

He says that the issues of "intention, classification of property, discussion of matrimonial property and fraud" cannot be determined only by way of affidavits and that he is "advised that oral evidence has to be heard in order to determine the issues which are in dispute".

Consideration of the issue

The issue before me is whether I should on the affidavit evidence before me grant a dissolution of the said injunction.

I have considered the submissions made by both counsel.

The main thrust of Mr. Parshotam's argument is that there was a material non-disclosure on the part of the Plaintiff in obtaining the injunction and hence it should be dissolved irrespective of the merits of the Plaintiff's claim.

Mr. Parshotam has referred the Court to a number of authorities bearing on the subject. He says that the fact that bulk of the money in one of the accounts was obtained as compensation in circumstances stated above and for injuries which the defendant herself received, should have been disclosed to Court particularly when injunction was obtained ex parte. This indeed was a material non-disclosure.

Mr. Sharma on the other hand argues that the Order of 8 December was "by consent" and that it was agreed that "$41,000 was not to be paid until trial of case". At this stage I might mention that the Order of 8 December allowed operation of an account which just had $2000 but other accounts were to remain frozen "until further Order of this Court".

Before I consider Mr. Parshotam's argument which is based merely on the basis that there was material non-disclosure and therefore the injunction ought to be dissolved, there are certain other facts which cannot be overlooked in considering the application. They are that this Order was made on 8 December 1993 and this application is made some four years afterwards and the money has been intact and the defendant has not left Fiji. It appears that now the divorce has been granted in 1997 the defendant makes the application before property settlement is decided upon. It is also pertinent to note that Statement of Defence has now been filed on 14 April 1998.

If the defendant was at all concerned about the Order she should have made the application earlier and not wait for about four years. Granted there has been material non-disclosure four years ago, there is this action pending between the parties which raises triable issues and I agree with Mr. Sharma in this respect. The issues cannot be determined without hearing evidence. It appears that parties are gainfully employed and no prejudice will be caused to either party if the injunction was to remain.

This application to dissolve the injunction is for the above reasons refused with costs against the defendant. The issues between the parties have to be resolved by the trial of the action. If need be an application could be made for a speedy trial when the action is entered for trial at Suva.

D. Pathik
Judge

At Suva
22 May 1998

HBC0618D.93S