Auto One Importers and Exporters Ltd v Singh [2005] FJHC 169; HBC0119J.2004S (5 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0119 OF 2004

BETWEEN:

AUTO ONE IMPORTERS & EXPORTERS LIMITED
Plaintiff

AND:

JAGJEET SINGH
First Defendant

AND:

JACK’S FRESH PRODUCE TRADERS LIMITED
Second Defendant

Counsels: Mr Nilesh Prasad for the Plaintiff
Mr Diven Prasad for the Defendants

Date of Judgment: 5 July, 2005

JUDGMENT OF THE COURT

This case involves a Freezer Truck.

The first Defendant Jagjeet Singh is a Director of the second Defendant, Jack’s Fresh Produce Traders Limited. That company’s business involves the moving of fresh produce, particularly fruit and vegetables, from refrigerated storage to supermarkets, shops and market traders on Vitilevu. Jagjeet Singh needed another truck for his business. It is agreed that there were talks between the Plaintiff and the first Defendant about such a truck.

The Plaintiff’s witness, Mohammed Rafiq, alleges that he imported a truck second-hand from Japan having shown a picture of it to the first Defendant. When it arrived the first Defendant inspected the truck and, the Plaintiff alleges, agreed to buy it as long as certain works were carried out. The agreed price was $33,000. The Plaintiff says that he did the work, registered it in the name of the first Defendant and supplied the truck. The Defendant had test drives. A new set of tyres was provided, but these were to be charged as extra to the $33,000. The plaintiff says that the first or second Defendant failed to pay any money for the truck and thus he, the Plaintiff, seized the truck back. He claims for all the work done to the truck, the cost of registering and insuring it, the Defendants’ two trips to Ba and the depreciation on the registered vehicle. The total sum claimed is $11,856.20. The plaintiff also claims general damages for the loss of the deal and “sleepless nights and worry” of Mohammed Rafiq over the loss of the contract.

The Defendant, in response, states that he was interested in the truck. He wanted it put in order before he would agree to buy it. There were test drives, including two trips to Ba. However, after each of the test trips, despite the Plaintiff saying everything was in order, it was not. Finance had been arranged for the purchase of the truck. It was on the day that the finance was to be released, the Defendants say, the truck was still not in order and therefore it was returned to the Plaintiff.

A single and important fact emerged during the course of the trial. There was no reference to this fact in the pleading nor any indication of such in the discovered documents of the Plaintiff. It is not disputed that the truck was either seized back by the Plaintiff or returned by the Defendants towards the end of February 2004. The fact that emerged was that Mohammed Rafiq stated that he sold the truck to another person in July 2004 for the sum of $25,000.

This is vital as far as the Plaintiff’s claim is concerned. His loss would appear to be $8,000 plus transaction, re-advertising costs, etcetera.

The Plaintiff’s general damages claim for Mohammed Rafiq for “worry and sleepless nights” cannot be entertained. Plaintiff’s counsel accepts that this is an action in contract by a limited company.

This claim could have been brought in the Magistrate’s Court. Further, and more importantly, the Plaintiff’s claim is, to put it at its lowest, inflated.

The Plaintiff called a number of witnesses to support the fact that work was done and completed on the truck and it was registered in the name of the first Defendant. They were Dewa Nand, Jagdish Pillay, Janesh Ashnei Prasad, Imran Mohammed and Avinesh Kumar. The Defendants do not significantly dispute the evidence of these witnesses save to the extent that the first Defendant personally gave instructions to them for specific work, as opposed to the Plaintiff’s Director, Mohammed Rafiq.

Mr Rafiq was the principal witness for the Plaintiff company. He stated that the first Defendant, having seen the truck, agreed a price of $33,000. He had a test drive and required certain work to be done. That work was general body work, replacement of the exhaust system, repair and servicing of the refrigeration system, other engineering work and the registration of the vehicle in the first Defendant’s name, together with Inspection Certificate and Third Party Insurance. The work was done. The truck was in good order. The Plaintiff says that the set of tyres were supplied by the Plaintiff’s company at the request of the first Defendant and were extra to their agreement.

The Plaintiff says that this was a concluded agreement as the truck was placed in the name of the first Defendant at his request before the works were completed and eventually the truck was handed over to him.

Mr Rafiq, towards the end of examination-in-chief, informed the Court that the truck had been sold to Tossa Bussan in November 2004 for the sum of $25,000. In cross-examination he agreed that there was a trade-in vehicle, valued at $8,000, that was set against the $25,000. In answer to the Court, Mohammed Rafiq said there was a receipt and that was in his Office.

The documents supporting the subsequent sale of the truck were called for. Mr Rafiq provided to the Court photocopies of a sale of the truck showing a price of $25,000. The date however was in July 2004 not November. The original of the sale document was required. When shown to the Court it was clearly not the document which had been photocopied. A bill of sale was referred to. That gave the trade-in value as $6,000. Further, in cross-examination, Mr Rafiq accepted that as far as the photocopy invoices for the works done on the truck were concerned they had been made out at a later date and back-dated.

The first Defendant, Jagjeet Singh, gave evidence. He accepted he wanted a freezer truck for his business and was interested in this particular one. However, he stated that no contract was concluded. He wanted the truck to be put in full working order and take it for test drives, one or two of them to Ba, before he could be satisfied with the truck itself and conclude the agreement for its purchase.

He stated the truck was placed in his name to facilitate the obtaining of finance not because he had purchased the truck. He said that finance would not be forthcoming if the truck was in another name.

Mr Singh said that at the end of all the work and the test drives he was still not satisfied with the truck itself. On the day the finance was supposed to be arranged, he decided not to purchase it and returned it to the Plaintiff. He accepted that he did not immediately transfer it back into the name of the Plaintiff and this only took place as a result of a Court Order. He denied giving instructions directly to the Plaintiff’s and other companies that were carrying out work on the truck. He accepted he did go and look from time to time to check on progress. He stated he took it on two trips to Ba with the Plaintiff’s agreement. Even after the second trip there were still problems, for example the emission of black smoke and inadequate cooling capacity. He said the truck had not been placed in merchantable order.

He called one witness, his manager, Ayub Hussein. He said he was present and inspected the truck after the first test drive, a local one in the Suva area, and a list of defects was given to the Plaintiff. A price of $33,000 was quoted. He was present on the first trip to Ba after which the truck was returned the next day for further repairs. He went on the second trip to Ba after which he said that the cabin had not been fixed, the bumper work had not been done properly and the cooler was not working properly. He accepts that the plaintiff supplied six tyres and they were fitted by him to the truck. He confirmed that the truck was taken to the premises of the finance company. He could see the defects were still not fixed. He took it to the Plaintiff’s premises on the same day and returned the keys.

The Plaintiff’s case is that property in the truck had passed from them to the first or second Defendant. There is no convincing explanation on this basis as to how the Plaintiff felt able to seize back the truck as opposed to pursuing the purchase price. It is probable that Mohammed Rafiq considered he was entitled to recover the truck when no money was forthcoming for its sale.

The trial was concluded and one and two weeks respectively given for the Plaintiff and the Defendants to supply their written closing submissions. Those submissions were not particularly helpful.

It is clear that when the two parties discussed the truck, dealt with subsequent works and took or returned the truck, they did not have in mind the legalities of what they were doing at each state.

There is in reality little difference in their positions. On the one hand the Plaintiff considered he had done everything requested and put the truck in order. It is probable he was also getting concerned that his profit margin was being significantly eroded. On the other hand, the Defendants wanted the truck in good order but, despite a variety of works, that still had not happened. There is the veiled suggestion that the defendant either couldn’t raise the finance or realised he might be paying too much. There is no evidence to support this.

In the areas where the evidence of Mohammed Rafiq and the first Defendant differ I prefer that of the first Defendant. The way the later sale of the truck emerged and the disclosure of the “supporting documentation” mean Mr Rafiq’s reliability is put in question.

I find that the first defendant agreed to buy the truck for $33,000. That was clearly done as servant or agent of the second Defendant, the business of which required such a truck. That agreement was subject to the truck being put in order to the reasonable satisfaction of the first Defendant. The truck was placed in his name for finance purposes.

Substantial work, then further work was carried out. Two long test drives to Ba were made. At the end of these the truck was still not in reasonable order according to the first Defendant. His Manager, whose evidence I also accept, supported this. The first Defendant informed Mr Rafiq accordingly, stated he did not wish to continue with the purchase and it was either returned or taken back. He was entitled to do this. It was sold to another a few months later for $25,000. It must be noted that the truck would then have also had the benefit of new tyres. There is no evidence as to whether or not further work was carried out on the truck between February and July. The claim for $1,184.00 in respect of the tryes and a bulb must also fail. The Plaintiff had these back and fitted to the truck with little wear on them.

Accordingly the Plaintiff’s claim is dismissed.

R J COVENTRY
JUDGE