Argo Travel Ltd v Khan [2001] FJHC 175; HBC0444D.1997L (19 February 2001)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0444D.1997L

Between:

ARGO TRAVEL LIMITED a limited liability
Company having its registered office at Nadi,
Fiji.
Plaintiff

And:

MOHAMMED ALEEM KHAN (father’s name
Mohammed Hakim Khan) C/- Kennedy Hotels
Limited, Kennedy Avenue, Nadi, Fiji.
Defendant

DECISION

The plaintiff Argo Travel Limited has by summons dated 27 March 1998 sought an order striking out the defendant Mohammed Aleem Khan’s statement of defence and entering summary judgment against him for the amount claimed in the statement of claim and costs. The application is supported by an affidavit of one Ratilal Gokal, a director of the plaintiff and is made pursuant to Order 14 rule 1 and Order 18 rule 18 of the High Court Rules 1988.

In his affidavit sworn on 18 February 1998, Mr Gokal has annexed a letter (Annexure “A”) dated 9 October 1996 written on his behalf to the defendant claiming the sum of $46,525.00 in airline ticket sales is owed by him. The letter contains an acknowledgment of the debt as at 30 September 1996 by the defendant. In the latter’s affidavit in reply sworn on 16 April 1998, he denies owing the monies personally and makes reference to third parties and to an explanation tendered by his solicitors in their letter to the plaintiff dated 18 December 1997 (Annexure “A). They maintained that the cheque for $45,000.00 given by the defendant to the plaintiff was only given as security. It was to be banked upon the third parties paying the defendant that amount.

In its affidavit in reply sworn by Mr Gokal on 23 May 1998, the plaintiff denies the explanation given by the defendant’s solicitors. He in turn produces a receipt (No. 19261) for $525.00 issued on 12 November 1996 to the defendant (Annexure “A”). A second receipt (No. 19966) for $1000.00 issued on 21 January 1997 is also produced (Annexure “B”). The cheque signed by Aleem Khan for $45,000.00 is dated 24 July 1997 made out to the plaintiff and was subsequently dishonoured (Annexure “C”).

What is the court to make of the foregoing? The resolution of conflicting evidence an affidavits has long been discouraged if not prescribed. However, there may be situations where the affidavits themselves are so unsatisfactory as to reflect adversely on the parties themselves Eng Mee Yong v Latchumanan [1980] AC 331. In the instant case, the court has little difficulty disbelieving the defendant’s version of events.

First there is an open acknowledgment of the amount owed in the letter dated 9 October 1996. The letter by the defendant’s solicitor of 18 December 1997 is best disregarded as a self-serving piece of correspondence. Written over a year after the acknowledgment was made it is no less than an attempt to call black white. There is no evidence before the court of the alleged role played by third parties and it ill-becomes the defendant’s solicitors to make such critical assertions without move.

Second, the defendant’s attempts to explain the dishonouring of his $45,000.00 cheque made out to the plaintiff border on the facile. The plaintiff has produced evidence of $1525.00 in payments being made by the defendant on 12 November 1996 and on 21 January 1997. The acknowledgment of debt dated 9 October 1996 was for $46525.00. Seen in that light, the cheque for $45,000.00 can only be construed as the balance of the monies owed by the defendant to the plaintiff. The elaborate explanation about third parties and security strains credibility. The defendant had made part payment of the debt owed without reference to third parties. Why should the plaintiff be concerned about alleged arrangements between the defendant and third parties. It is all surmise and conjecture which a cynic might unkindly call a concoction.

Third, the explanation the defendant gave for acknowledging he owed $46525.00 to the plaintiff requires some comment. He states “it was merely to facilitate the Plaintiff for the preparation of their accounts and in their dealings with the Airlines in good faith. I executed what was required by the Plaintiff.” The defendant is a director of a well-established hotel in Nadi. He is by definition an experienced businessman. The suggestion that he would sign a pledge acknowledging a debt of that amount albeit in good faith beggars belief. The explanation is of such a degree of obtuseness as to be incredible. It inclines the court to accept the plaintiff’s version of events. The defendant was provided with $45,525.00 worth of air tickets and admitted the same in writing on 5 October 1996. No mention was made at the relevant time of third parties. All that he says transpired subsequently appears to have been little more than an attempt to evade that financial obligation in the court’s respectful opinion.

It is clear that the defendant has no defence, the statement of defence is accordingly struck out and summary judgment is entered for the plaintiff in the sum of $5,000.00 with interest thereon at the rate of 13.5 per cent from 1 November 1996 to the date of payment. Costs are summarily assessed against the defendant for $500.00.

The inordinate delay in handing down this decision is due to a number of factors. But it is in the nature of responsibility that the court must accept fault in causing much of it for which it apologises. That is little comfort for the litigants who are entitled to efficacious justice.

Joni Madraiwiwi
PUISNE JUDGE

At Suva
19 February 2001