Singh v Kanomla Investment Ltd [2005] FJHC 357; HBC0393.1995 (1 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0393 OF 1995

BETWEEN:

JAGAT SINGH
father’s name Sundar Singh of Olosara, Sigatoka
PLAINTIFF

AND:

KANOMLA INVESTMENT LIMITED
a limited liability Company having its registered office at
58 Robertson Street, Suva.
DEFENDANT

Mr R. Singh for the Plaintiff
Mr M S Sahu Khan for the Defendant

Date of Hearing: 12 October 2005
Date of Judgment:.... October 2005

JUDGMENT OF FINNIGAN J

This is a claim and counterclaim in contract. The disputes arise out of an agreement for Sale and Purchase of land that was made on 7 January 1987. The transaction was finally completed by mutual exchange of documents and balance of purchase price in 1992. This action was not commenced until 1995, three years later. The Plaintiff by that time had still not received his contractual entitlement to a residential plot of land and was claiming he had been underpaid by $20,000.00.

Regrettably the action languished for ten years until it was heard. The total hearing time including evidence and addresses was four hours. The witnesses with the keys to the facts of what occurred were the two solicitors who acted for the Plaintiff and perhaps one Bank officer. The Bank statements of the parties for the early months of 1997 would have helped. None of this evidence was available for the hearing.

The Evidence and Findings of Fact

The evidence was given by the Plaintiff and by one of the Defendant’s directors. From their evidence taken as a whole and from the documents put before me an objective finding of what occurred emerges easily.

The Plaintiff was a cane and root crop farmer who decided to sell his land but wished to retain title to a small part of it on which his house was built. The Defendant was a land sub-divider and a willing purchaser. The price was agreed, $100,000.00. There was to be a deposit of $52,000.00 with the balance in three instalments without interest spread over two years. This was all expressed in a written Sale and Purchase Agreement drawn up by Ravendra Narayan & Associates at Sigatoka. I am satisfied Mr Narayan was the Plaintiff’s solicitor. The agreement was signed on 7 January 1987, the land was a Crown Lease and the consent of the Director of Lands had been endorsed by 12 January 1987.

In order to pass clear title the Plaintiff had to discharge a mortgage held by his mother-in-law. To repay her he needed just under $32,000.00. The Defendant’s directors prepared two cheques for the $52,000.00 deposit. One was for $32,000.00, it was crossed and endorsed “Not negotiable”. The other was for $20,000.00 and was left open. Both were made out to the Plaintiff Jagat Singh and on both the endorsement “or bearer” was deleted.

The Plaintiff’s evidence about what then occurred is by itself credible. He expressed a sincere conviction that at the request of one of the directors (not the one who gave evidence) he endorsed his signature on the back of the $20,000.00 cheque and returned it the director (Dr. Arjun Singh) as a loan which would be repaid to him in the April. He said Dr Singh told him they needed the money to pay for the bulldozing.

There is some support for this in the photocopy of the cheque that was supplied by the Bank to the Defendants in December 1992. With no expertise in identifying hand writing on badly photocopied documents I can still say that the name of the Plaintiff written on the back of the cheque appears to be the same hand writing as the name of the Plaintiff which was written by the Defendant’s director (Mr Vijay Kumar) on the front. The Plaintiff signed his signature beneath this hand written name on the back. He said Dr. Singh wanted his signature as a receipt for the cheque before taking it back from him as a loan. Mr Kumar denies that the Defendant took back the money and asks the Court to assume that the Plaintiff signed in order to cash the cheque which was made out to him personally and not to “bearer”.

There is further hand writing evident on the back of the cheque about which I asked the Plaintiff to comment. I should now state that I decline to recognize any of that hand writing. It has no probative value at all.

The Plaintiff says he gave the cheque and has never had the money repaid. Nobody denies that the money was withdrawn from the Defendant’s bank account. Neither party referred to bank statements and I must assume this $20,000.00 was withdrawn in cash. But by whom was it withdrawn? Prima facie, on its face, the cheque was endorsed by the Plaintiff and the money was paid to him.

This is borne out by the subsequent correspondence. It appears Mr Narayan closed his practice and the Plaintiff retained Mr Anirudh Kuver. On 17 July 1987 when the first instalment of $10,000.00 was 17 days overdue Mr Kuver wrote to Dr Arjun Singh demanding payment of that amount. 10 days later on 27 July 1987 the Defendant’s solicitors replied and included in the letter is a demand for refund of the $52,000.00 deposit. In an exchange of correspondence throughout 1987 between the solicitors this position never varied.

On 7 January 1992 the Defendant’s director Vijay Kumar wrote to the Plaintiff purportedly confirming a verbal agreement recently reached between the Plaintiff and Dr. Singh for payment of all three long overdue instalments totalling $48,000.00 upon delivery by the Plaintiff of the documents enabling registration. The Plaintiff complied. It was not until 6 April 1993 over one year later that the Plaintiff made a demand in writing (for the first time so far as the evidence reveals) for the $20,000.00 which he said was still outstanding. I am sure he still believes it has not been paid.

However, I can reach only one conclusion on this evidence, the $20,000.00 was paid by the Defendants and received by the Plaintiff on or about 7 January 1987. On the evidence therefore his claim for $20,000.00 must fail.

The Defendant on its counter-claim can fare no better. It blames the Plaintiff for the fact that it could not get title until some time in 1992 and could not create and sell the residential subdivision until some time after that. Mr Kumar in evidence seemed vague but thought that process had taken about two and half years from the time the Defendant got title.

What is the evidence about the cause of that five year delay? First there was the coup in May 1987. Mr Kumar said that business was disrupted for some months after that. There was a second coup that year which neither witness mentioned. From the correspondence between their lawyers, it is clear their attention was focused on this agreement. Throughout that year the solicitor for each party proclaimed willingness to proceed and blamed the other for non-completion of the contract. I am satisfied that the Plaintiff had the prior mortgage discharged within a short time of the agreement in January 1987 and had his document ready for settlement. I am satisfied the Defendant did not pay either of the instalments due in June and December that year, nor the instalment due in December the following year. It is entirely clear from Mr Kumar’s evidence that the queue of prospective purchasers waiting to buy these sections in the early months of 1987 had evaporated. By the same token, the Plaintiff had not received his June 1987 payment and was not willing to part with the documents. The Defendant therefore could not get title, it could not proceed with survey and it could not start work upon the land. The parties were in stalemate. I have no evidence at all about the period 1988 to 1991 inclusive and can draw no conclusions. Suddenly in 1992 the Defendant had the whole of the balance available and the Plaintiff surrendered the documents. The agent for this transaction apparently was the Manager of the Westpac Bank at Sigatoka.

The evidence about what occurred thereafter and the basis for the Defendant’s claimed losses is very thin. Defendant’s counsel relies on Mr Kumar’s claims and the fact that they were scarcely challenged in cross-examination. It is a fact however that they are still only claims, made without evidence. Mr Kumar’s evidence was that the subdivision and sale process took perhaps about two and half years. He said the Defendant has now sold all the lots except the one reserved for the Plaintiff and that the sale prices were “oh, from $10,000.00 to $15,000.00”. He said that before the coup they would have got higher values because before the coup they had people lined up to buy. This simply does not sustain the detailed claim of a loss of $3,000.00 per residential lot and neither does the evidence sustain the claim that there were 56 lots. Clearly there were either 30 or 31 depending on what evidence one accepts. By my count from the survey plan they were 31 plus the one reserved for the Plaintiff. That claim for $168,000.00 has no substance.

The further claim for $280,800.00 is likewise totally unsupported by reliable evidence. The claim is that the Defendant was unable to sell 26 lots for a period of 9 years and lost interest which it paid at $31,200.00 per year. The only evidence by Mr Kumar was that the Defendant paid the Bank 13% interest per annum. He did not say upon what balance or upon what basis, or over what period of time. He did not say whether the balance was constant or reducing. He did not support the Defendant’s counter-claims at all. The evidence was perfunctory.

One matter remains. Under the January 1987 Agreement the Plaintiff is entitled to be registered proprietor of his lot, which is now known as Lot 1 on the survey plan SO 2969. The only reason the Defendant gives for not carrying out its obligation is Mr Kumar’s evidence that the Defendant admits the Plaintiff’s claim to Lot 1 and once he settles the Defendant’s claim for damages then the Defendant will transfer the lot. In normal circumstances this admission would be reprehensible, but the sad history of this agreement and the gaps in the evidence lead to the conclusion that I should simply direct the Defendant to complete the contract and leave it at that.

Decision:

For the above reasons on the Plaintiff’s claim for $20,000.00 I give judgment for the Defendant. On the Plaintiff’s claim for an order that the Defendant transfer to him Lot 1 on SO 2969 free of any encumbrances or charges, I make the order sought. This order is effective immediately.

On the Defendant’s counterclaim for special damages totalling $448,800.00 I give judgment for the Plaintiff. On the Defendant’s claim for general damages I give judgment for the Plaintiff.

Costs must go to the Plaintiff. There was no legal justification for the Defendant’s failure to complete registration of the Plaintiff’s interest in Lot 1 after 1992, and no evidential basis for its substantial counterclaim. I assess costs in the Plaintiff’s favour at $2,000.00.

D.D. Finnigan
JUDGE

At Lautoka
October 2005