Pran v National Bank of Fiji [1998] FJHC 83; Hbc0594d.96s (29 June 1998)

Fiji Islands - Pran v National Bank of Fiji - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 594 OF 1996

BETWEEN:

1. MUNEEM PRAN

2. LALITA KAMAL

Plaintiffs

ass=MsoNormal alal align=center style="text-align: center; margin-top: 0; margin-bottom: 0">

1. NATIONAL BF FIJI

2. VILIAME MATAITOGA

Defendants

Mr. J.K.L. Maharaj for the Plaintiffs

Mr. D. Sharma for the 1st Defendant

DECISION

This is the first defendant's (the "D1") application by Summons to dissolve tlve the interim injunction granted to Plaintiffs on 7 August 1997 pursuant to an ex parte application made by them to restrain D1 as Mortgagee from selling 7 real estate properties namely, the properties described in Certificate of Titles Nos. 2489, 725, 7190, 7191, 4474, 4473 and 11030 owned by the Plaintiffs in Levuka.

ass=MsoNormaNormal style="margin-top: 0; margin-bottom: 0"> Plaintiffs' case

Oecember 1996 the Plaintiffs issued a Writ of Summons herein against D1 and VILIAME MATAITOGAITOGA (D1's Manager at Levuka) claiming, inter alia, damages and an order restraining D1 from exercising its powers further to its notice of demand of 28 March 1996 claiming the sums of $1,166,622.50 and $89,697.72.

The injunction ex parte was obtained on thength of the first Plaintiff's affidavit sworn 2 August 1997 1997. On 25 September 1997, Mr. Trevor Seeto the Manager Legal for D1 filed an affidavit in response.

On the day of the hearing of this application both Counsel agto file written submissionssions and this was ordered. They were filed and I have given due consideration to them.

Consideration of the issue

I do not propose to go into detailut the Plaintiffs, for facts relating to them are all contacontained in the affidavits filed herein suffice it to say that they have a number of properties referred to hereabove and they have been secured under a mortgage to D1. The D1 intends to exercise its powers under the mortgage as mortgagee. The Plaintiffs are resisting this but they do not deny that moneys are due and owing under the security document.

The law is quite clear when it comes to the grant of injunctions strain a mortgagee from exem exercising its power of sale. It has been held that in the absence of wholly exceptional circumstances and in the absence of an offer to pay the whole sum into Court injunctive relief may not be granted (DEO NARAYAN v RAM RAJ HBC 77/94S). This principle has been confirmed by SCOTT J in JOE COLATI v FIJI DEVELOPMENT BANK (HBC No.60/98). In this case there has not been an offer to deposit the moneys due or part thereof into Court. The plaintiffs seek an opportunity of the right to redeem the Mortgage but that, as Mr. Sharma says, is dependent on the wishes of the Mortgagee bearing in mind the ability of the Mortgagors (the plaintiffs) to pay D1.

The learned el for D1 has also attacked the Plaintiffs for failing to give an undertaking as to damagesmages when they made the ex parte application herein for an injunction. Here, as is evident the Plaintiffs owe D1 in excess of one million dollars. The requirement of the law regarding undertaking as to damages is crucial and the failure to give same at the appropriate time could prove to be fatal to the Plaintiffs' application when Court considers an ex parte application. The question arises in this case is whether in the light of such a large sum owing any undertaking by the Plaintiffs particularly when they are in financial difficulties is worth the paper it is written upon. However, there are other matters which I discuss later which would decide the issue of dissolution of injunction.

Now dealing with the principles involved in considering the question of lution of an injunction, onn, one of the grounds for discharge is where the continuing effect of the injunction has become oppressive. The balance of convenience has to be considered and in this regard the following passage from the judgment of LORD DIPLOCK in AMERICAN CYANAMID v ETHICON LTD [1975] UKHL 1; (1975) A.C. 396 at p.406 D-E is pertinent:

"The object of the interlocutory injunction is to protect the pthe plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where "the balance of convenience" lies."

In the case before me vis a vis the mortgagee's right to exercis powers of sale, whatever rver reason the Plaintiffs have advanced to restrain and to continue to restrain D1 is not weighty enough to enable the Court to let the injunction continue. The plaintiffs had in their proposal to D1 agreed to the selling of all properties. Then why continue the injunction? The history of the Plaintiffs' dealings under the mortgage reveals that they could not keep up with the payment of $18,000.00 per month from May 1996 to which they agreed. No action was taken by D1 until August 1997. Ample time was given to them to solve their problems but they failed to do so.

It all boown to this that there is no serious issue to be tried. If the plaintiffs are successful unul under the Writ then they can certainly claim damages which they are in fact doing under this action.

Here I find damages are an ate remedy and as the law is one does not obtain injunctionction to restrain actionable wrong for which damages are the proper remedy (per FLINDLEY J in LONDON & BLACKWALL RAILWAY CO & CROSS [1886] UKLawRpCh 7; (1880) 31 Ch.D. 354 at 369).

In all the circumstances of this case the balance of convenience favours the discharge of the injunction.

Conclusion

ass=MsoNormaNormal style="margin-top: 0; margin-bottom: 0"> For these reasons, in the of the facts and circumstances surrounding this case and uand upon considering the submissions of both Counsel and applying the principles applicable to the discharge of injunction, I do not consider that the interim injunction granted herein should continue.

ass=MsoNormal stal style="margin-top: 0; margin-bottom: 0"> The injunction is hereby dissolved and the Plaintiffs are free to continue with their action under the writ. The Plaintiffs are ordered to pay the defendant's (D1's) costs of this application in the sum of $250.00.

D. Pathik

Judge

At Suva

29 June 1998

Hbc0594d.96s