D Gokal and Company Ltd v Lala [2001] FJHC 129; Hbc0033J.2001s (26 October 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 33 OF 2001S

Between:

D. GOKAL AND COMPANY LIMITED
Plaintiff

and

DRIB KANT LALA
(f/n Totaram)
and
JOYCE LALA
(f/n Ram Singh)
Defendants

I. Razak for the Plaintiff
Ms. V. Lal for the Defendants

JUDGMENT

By writ issued on 28 January 2001 the Plaintiff claims the sum of $107,148.24 being the balance outstanding for goods sold and delivered by the Plaintiff to the Defendants.

A Defence was filed on 20 April 2001. The Defendants denied owing anything. They also denied owning “Lala’s Shopping Centre”, a well known shop in Waimanu Road where the goods were supplied and in whose name they were invoiced.

On 8 May 2001 the Plaintiff issued a summons under the provisions of RHC O 18 r 18 (1) (a) to strike out the Defence. I dismissed this application on 18 July.

On 25 July the present summons for summary judgment under O 14 was issued, supported by an affidavit sworn by Mr. Vinod Bhagwan Gokal, the Plaintiff’s managing director.

In his affidavit Mr. Gokal stated that the Plaintiff had been supplying goods to Lala’s Shopping Centre for a number of years. He stated that all dealings were conducted with the first Defendant and that the first Defendant would order the goods and pay for them. The second Defendant was not known to the Plaintiff. Mr. Gokal exhibited copies of a number of cheques drawn in favour of the Plaintiff by Lala’s Shopping Centre, each one being signed and signed only by the first Defendant.

Mr. Gokal averred that between November 1999 and May 2000 the first Defendant ordered goods to the value of $107,148.24. Invoices relating to these goods were also exhibited. Mr. Gokal averred that after a post dated cheque was dishonoured the first Defendant wrote to the Plaintiff on 13 December and offered to pay the outstanding amount at the rate of $5,000 per month. A copy of the letter is Exhibit D to Mr. Gokal’s affidavit. Shortly after the letter was received the Defendants left for New Zealand without paying the amount owed.

Mr. G.P. Lala, a barrister and solicitor, filed an affidavit in answer on behalf of the Defendants. In paragraph 2 he averred that the Defendants were unable personally to depose since they now lived in New Zealand. Bearing in mind the existence of notaries public and a modern, fast and efficient postal service between Fiji and New Zealand I was not much impressed with the submission.

In paragraph 6 of his affidavit Mr. Lala accepted that the goods in question had been supplied to Lala’s Shopping Centre but he stated that the registered owner of the business was the second Defendant and that the first Defendant was only an employee. How Mr. Lala came to know this was not disclosed. Mr. Lala pointed out that the cheques and invoices exhibited by Mr. Gokal referred to Lala’s Shopping Centre and not to the first Defendant. He sought dismissal of the application in respect of the first Defendant but was silent as to the second.

The suggestion that the first Defendant was a mere employee of the second Defendant was repeated in a written submission filed by Ms. Lal who suggested that there was a substantial issue to be tried and that therefore the Order 14 sums should be dismissed. What precisely this substantial issue was was not made clear.

In his affidavit Mr. Gokal referred to the second Defendant as the owner of the business Lala’s Shopping Centre. He exhibited a copy of the registration of the business lodged pursuant to Section 4 (1) (e) of the Registration of Business Names Act (Cap 249). Ms. Lal also referred to this matter in paragraph 8 of her written submission. It is important to be clear about the limited effect of the operation of this Act. While the registration of a business name under the Registration of Business Names Act does indeed provide a means of discovering the name of a person “carrying on the business under a business name which does not consist of his true surname without any addition other than his true Christian name or the initials thereof” (section 3 (b)) it does not provide irrefragable evidence of the true ownership of the business. In the present case it is not disputed that the first Defendant is the second Defendant’s husband and that a receiving order made against him by the Suva Magistrates, Court in September 1991.

It is against this background that the value of the first Defendant’s claim to be a mere employee or agent of the second Defendant has to be measured. There is, as will have been noted no Defence raised at all by the second Defendant.

Given Mr. Gokal’s unchallenged description of the manner in which the business was operated over several years with the Plaintiff ordering goods and paying for them while the second Defendant remained unseen and unknown I am satisfied that the first Defendant was not as claimed a mere employee or agent of the second Defendant but on the contrary he was in fact a principal with whom the Plaintiff dealt. In these circumstances there can be no defence by the first Defendant to the Plaintiff’s claim.

There will be Judgment against both Defendants as claimed with costs to be taxed if not agreed.

M.D. Scott
Judge

26 October 2001