Wati v Kumar [2005] FJHC 275; HBC0078.2004 (2 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0078 OF 2004L

BETWEEN:

SHEELA WATI d/o Bechu
Plaintiff

AND:

KRISHNA DALIP KUMAR s/o Krishna Singh
Defendant

Mr. M.K. Sahu Khan for the plaintiff
Mr. R. Gordon for the defendant

Date of Hearing: 15 November 2005
Date of Ruling: 2 December 2005

INTERIM RULING

The plaintiff applies by way of Originating Summons filed on the 24^th March 2005 for orders directed to Fiji Sugar Corporation Limited Lautoka. Fiji Sugar Corporation Limited is not a party to the proceedings.

The plaintiff relies upon her affidavit sworn on the 23^rd March 2004 and her further affidavit sworn on the 7^th October 2004.

The application is opposed and the defendant relies upon his affidavit sworn on the 18^th September 2004.

It is not disputed that Pratap Singh agreed to sell the property known as Farm No. 6046 Lomawai Sector to the plaintiff for the sum of $30,000.00 pursuant to an agreement made on the 3^rd June 1994. It is also not disputed that Pratap Singh by his Will bequeathed to the plaintiff’s husband that same property subject to payment of the sum of $30,000.00.

The plaintiff says and it is not denied by the defendant that the sum of $29,500.00 has been paid to Pratap Singh.

It is also not in dispute that the plaintiff has been evicted from the property by the executors of the estate of the late A.D. Patel and that the consent of the lessor, the estate of the late A.D. Patel, was not obtained to facilitate the transfer from Pratap Singh to the plaintiff.

Consent not having been obtained it was not possible for the transfer to take place.

The defendant says and it is not disputed that the plaintiff and her husband continued to operate the farm. The defendant says that the operation of the farm continued on the basis that the plaintiff and her husband were the employees of Pratap Singh.

It doesn’t seem particularly relevant to these proceedings the basis upon which the farm was operated. The most relevant fact would appear to be the payment of the sum of $29,500.00 by the plaintiff and her husband to Pratap Singh and the failure of Pratap Singh to transfer the property to the plaintiff.

It would appear that the defendant has been unjustly enriched to the extent of $29,500.00 and that the plaintiff is indeed entitled to these monies.

The Originating Summons in its current form does not enable appropriate orders to be made and accordingly I propose to grant leave to the plaintiff to file an amended summons seeking appropriate relief against the defendant and/or Fiji Sugar Corporation Limited to facilitate the sum of at least $29,500.00 being paid to the plaintiff.

In the interim, I order that any monies currently held by the Fiji Sugar Corporation Limited be retained by them and in the event that any monies are received by the defendant from the Fiji Sugar Corporation Limited with respect to Farm No. 6046 Lomawai Sector that those monies be retained by the defendant without deduction in anyway whatsoever pending further order of the court.

The proceedings are adjourned to the 20^th January 2006.

JOHN CONNORS
JUDGE

At Lautoka
2 December 2005