Fiji Development Bank v Duvuloco [2002] FJHC 243; HBC0459j.2001s (8 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 459 OF 2001

IN THE MATTER of Mortgage No. 370672 given by KELERA DUVULOCO of 1 Mika Dreu Place, Tamavua, Self employed in favour of Fiji Development Bank over the property being Certificates of Title Nos. 19333 and 17396

Between:

FIJI DEVELOPMENT BANK
Plaintiff

and

KELERA DUVULOCO
Defendant

Mr. D. Sharma for Plaintiff
No appearance for Defendant

JUDGMENT

By Originating Summons filed on 19 November 2000 the plaintiff seeks the following main Orders under Order 88 of The High Court Rules:

1. Delivery by the Defendant to the Plaintiff of vacant possession of all that property comprised and described in Certificate of Title No. 19333 being Lot 1 on DP 5039 and Certificate of Title No. 17396 being Lot 1 on DP 4101 situated at 1 Mika Dreu Place, Tamavua together with all the improvements thereon.
   
2. An Injunction restraining the Defendant, her servants or agents from interfering with the improvements on the said property in any way so as to deplete its value.
   

The summons is supported by an affidavit sworn by Salote Tavainavesi, Manager Legal in the employ of the plaintiff.

The background to the application is that the defendant gave a mortgage registered No. 370672 in favour of the plaintiff as security for loans and advances etc made by the plaintiff. The defendant fell into arrears of payment. A demand was made but the defendant failed to make any payment.

The Bank (the plaintiff) as mortgagee now intends to exercise its powers under the mortgage and sell the said property. On 31 October 2001 the Bank=s Solicitors issued notice to the defendant requiring her to deliver vacant possession of the said property but she has failed to do so. This is interfering and prejudicing the Bank=s rights as mortgagee.

In exercise of the powers vested in it under the following provisions of the mortgage the Bank now wishes to proceed to obtain vacant possession of the property so as to enable it to give possession to the new purchaser:

AThat upon the power of sale becoming exercisable hereunder it shall be lawful for the Mortgagee at any time and from time to time without giving to the Mortgagor any notice to do all or any of the following:

To enter upon and take possession and/or enter into receipt of the rents and profits of all or any of the said land and to manage the same and to pull down re-build alter and add to any then existing building or improvements thereon and to do all such things as the Mortgagee may deem necessary to manage and efficiently carry on the said land or to obtain income therefrom and for any such purposes to employ managers, workman and others and otherwise to act in all respects as the Mortgagee in its absolute discretion may think fit.@

The Summons was served on the defendant on 21 November 2001. Also Notice of Appointment to hear the summons on 18 January 2002 was served on her but there was no appearance or response by the defendant. Affidavits of Service have been filed.

The plaintiff now seeks the Orders as prayed referred to hereabove which I make as the plaintiff has fully complied with the provisions of the said Order 88 Rule 2 which pertains to >mortgage actions= and provides for claim for possession. It is clear that the defendant does not wish to contest the application.

It is therefore Ordered that the defendant give immediate vacant possession of the said property with costs to plaintiff in the sum of $200.00.

D. Pathik
Judge

At Suva
8 February 2002