NBF Asset Management Bank v Bajpai [2001] FJHC 212; HBC0196.1998 (12 July 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVL ACTION NO. HBC 0196 OF 1998

IN THE MATTER of Mortgage No. 310103 over Certificate of Title No. 7966 given by ISHWARI PRASAD BAJPAI in favour of NBF ASSET MANAGEMENT BANK

BETWEEN:

NBF ASSET MANAGEMENT BANK a body
Corporate duly constituted under the National
Bank of Fiji Restructuring Act, 1996 and having its registered office at Suva
Plaintiff

AND:

SHEELA WATI BAJPAI as Executrix of the
Estate of Ishwari Prasad Bajpai of 4 ½ Miles, Nasinu
1st Defendant

AND:

RAHUL BAJPAI, Businessman of 4 ½ Miles,
Nasinu
2nd Defendant

T.W. Seeto for the Plaintiff
H.K. Nagin for the Defendants

Dates of Hearing: 27th June, 13th November 2000
Date of Ruling : 12th July 2001

RULING

On the 2nd of February 2000 I ordered the First Defendant to deliver to the Plaintiff vacant possession of a property described in Certificate of Title 7966 Lot 19 D.P.1864 and gave reasons for my order in a judgment of that date.

Now before me is a Notice of Motion requesting a stay of execution pending appeal to the Fiji Court of Appeal. The Plaintiff claimed that as at the date of my judgment an amount of $14,375,727.19 was owing to it under a mortgage on the property which had been valued at $195,000.00.

The Plaintiff offered to sell the property to the First Defendant for $150,000.00 and said that that price was not negotiable. The highest offer the Plaintiff received was $120,000.00. The Defendant offered $123,000.00 but the Plaintiff rejected this offer.

It was alleged before me both at the original hearing and on the application for stay that the mortgage in question was granted to the First Defendant’s husband now deceased to secure advances to himself and not his company and that consequently no order for vacant possession should be made.

I rejected that argument initially and reject it again now. The law in my judgment is quite clear. On page 4 of my judgment I quoted from Paget on The Law of Banking, 6th Edition at page 106 where it is said that where several accounts exist a Bank can combine them unless the customer has explicitly authorised it to keep the accounts separate. It has not been suggested that there has been any such authorisation in this case and I therefore hold there is no merit in the First Defendant’s argument. In my view the law on this question is very clear and has been stated time and again by the Courts in this country and overseas to be that when restraint of a mortgagee is sought failing payment into Court of the amount sworn by the mortgagee as due and owing under the mortgage, no restraint should be placed by the Courts on the exercise of the mortgagee’s right under the mortgage - Inglis and Another v. The Commonwealth Trading Bank of Australia, 126 CLR 161.

Counsel for the Plaintiff stated that if I was minded to grant a stay of my judgment I should order the First Plaintiff to pay into the Court a sum of between $500,000.00 and $14,000,000.00.

Although I think the Plaintiff is being very generous towards the First Defendant in suggesting such a comparatively low amount as $500,000.00 compared with the sum due under the mortgage which by now must be in excess of $14,000,000.00, I am prepared to accede to the Plaintiff’s suggestion by ordering the First Defendant to pay into the Court within 14 days of the delivery of this Ruling the sum of $500,000.00 failing which the application for stay will be refused. I so order.

JOHN E. BYRNE
JUDGE