Deo v Singh [2005] FJHC 23; HBC0423.2004 (10 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0423 OF 2004

BETWEEN:

SATENDRA DEO
PLAINTIFF

AND:

RANVIR SINGH
1ST DEFENDANT

SNEH LATA SINGH
2ND DEFENDANT

Mr. G. O’Driscoll for the Plaintiff
Ms R. Singh for the Defendants

JUDGMENT

This is an application for specific performance of a sale and purchase agreement dated 18th June 2004 pursuant to the provisions of Order 86 of the High Court Rules. This Order enables the court to grant order for specific performance unless the defendant satisfies the court that some issue or issues ought to be tried or there ought for some other reason be a trial.

The following affidavits have been filed by the parties:

(1) Of Satendra Deo the plaintiff dated 16th September 2004

(2) Of Arun Kumar who is clerk with Solicitors for the defendant dated 17th December 2004.

The swearing of affidavits by solicitor’s clerks in contested proceedings appears with alarming regularity before the courts. Arun Kumar says he was duly authorized by defendants to dispose the contents. There is no authority annexed to the affidavit. Order 41 Rule 1 sub-rule 4 requires affidavit to be expressed in “first person”. The affidavit put before the court is more like a statement defence in its wording rather than being expressed in first person. Swearing of affidavits by solicitor’s clerk on contested matters should be a rare exception and the reason why the party is unable to depose ought to be explained.

FACTS:
The defendants are registered proprietors of land comprised in Certificate of Title Number 18364 at 138 Ragg Avenue, Suva. The plaintiff intended to purchase this property. The parties entered into a comprehensive sale and Purchase Agreement on 18th June 2000, and a transfer was also signed by the defendants. Both these documents have been stamped by the Commissioner of Stamp Duties. The purchase price of the property was $205,000.00. Of this $5,000.00 was paid into solicitor’s trust account and the balance was to be paid within sixty (60) days or on such later date as the parties may agree in writing. Messrs Khan & Company acted for both vendors and purchasers. Messrs Gibson & Company solicitors of Labasa acted for financier who financed the purchase. On 15th July 2000 Khan & Co. wrote to Gibson & Co. stating they were ready to settle in exchange for cheque for $200,000.00. They again wrote on 13th August 2004. On 16th August 2000 Gibson & Company wrote to Khan & Company proposing settlement on 20th August 2004 and requesting that city rates be paid up. The sale and purchase agreement provided that the Vendors would pay all outstanding rates. On 17th August 2004 Khan & Co. wrote to defendants asking them to clear city rates as they were obligated to do. However, the defendant did not pay and requested the plaintiff to pay the city rates and which the plaintiff did non 20th August 2004.

The delay was due to defendant’s default in failure to pay rates in time. The defendants in paragraph 12 say there were “several outstanding issues”. I am not told what those issues were. The defendants are trying to take advantage of their own default. I note time is not made the essence of the agreement. If the defendants wanted, they could have given a notice and fixed a reasonable time for settlement. They did not do that. It is in fact the plaintiff who on 23/08/04 gave notice to the defendants to complete the transaction in 14 days or get sued for specific performance. It was only then the defendants on 13th September 2004 said no time for extension will be granted. The plaintiff was not seeking extension of time but asking for completion.

It is clear from affidavits filed and the annexures that the defendants have no defence at all. This is a proper case for granting specific performance.

I therefore order specific performance of Sale and Purchase Agreement dated 18th June 2004, I note the defendants are in the USA. I order that upon the plaintiff at 11.00 a.m. on 28th February 2004 at Registrar of Titles Office, Suva paying the defendants or his solicitors the purchase price less rates paid on their behalf by the plaintiff and outstanding water and electricity bills, by Bank cheque, the defendants simultaneously shall hand-over the following documents to the plaintiff or his solicitor :

(a) Original Sale and Purchase Agreement

(b) Stamped Transfer in duplicate

(c) Land Sales Declarations

(d) Certificate of Title 18364 free of all encumberances except any caveat which was lodged by the plaintiff.

I further order that the defendants pay plaintiff’s costs in the sum of $500.00.

[ Jiten Singh ]
JUDGE

At Suva
10th February 2005