Sabharwal v Bank of Baroda [2005] FJHC 553; HBC0342.2003L (24 June 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0342 OF 2003L

BETWEEN:

BRIJ RAJ SABHARWAL
f/n Buta Ram Sabharwal of Lautoka, Fiji,
ATUL KUMAR SABHARWAL
f/n Brij Raj Subharwal of Sydney, Australia and
ANIL KUMAR SABHARWAL
f/n Brij Raj Sabharwal of Lautoka, Tax Agent
Plaintiffs

AND:

BANK OF BARODA
1st Defendant

AND:

RAJENDRA PRASAD BROS. LIMITED
2nd Defendant

Counsel for the Plaintifs: Dr. Sahu Khan
Counsel for the 1st Defendant: Mr. Kumar for G.P. Lala & Co
Counsel for the 2nd Defendant: Mr. K. Kumar

Date of Hearing: 20 May 2005
Date of Ruling: 24 June 2005

RULING

By Notice of Motion dated the 15^th October 2003, the plaintiffs seek an interim injunction against the 2^nd defendant restraining the 2^nd defendant from interfering with the quite enjoyment of the plaintiffs of the property comprised in Crown Lease No. 40416 and in particular from stopping the plaintiffs from entering and/or departing from the said property or residing thereon.

The plaintiffs rely upon two affidavits of the 3^rd plaintiff, Anil Kumar Sabharwal dated the 15^th October 2003 and 26^th November 2004.

The Motion is opposed by the defendants who rely upon the affidavit of Madi Madhava Reddy dated 2^nd April 2004 fall on behalf of the 1^st defendant and the affidavit of Rajendra Prasad dated 9 March 2004 on behalf of the 2^nd defendant.

I have had the benefit of written submissions filed on behalf of the 1^st and 2^nd defendants.

Background

The first and second named plaintiffs became registered as joint lessees of Crown Lease No. 40416 in 1986 and they mortgaged the lease to the Bank of Baroda (1^st defendant) in 1986.

The third named plaintiff claims an interest in the lease by virtue of an agreement made in 1987, which was made after the Bank’s mortgage, which claim is denied by the 1^st and 2^nd plaintiffs.

The alleged agreement between the plaintiffs was considered by Gates J. in Matter No. HBC0105 of 2001 between the Bank of Baroda and the 3^rd plaintiff where he found that the defendant (3^rd plaintiff) had no caveatal interest in Crown Lease No. 40416.

In April 1996, the Bank called for tenders for the sale of the mortgaged property and subsequently accepted the 2^nd defendant’s tender which was the highest tender.

It is alleged on behalf of the plaintiffs that two further tenders were submitted. This is denied by the 1^st defendant.

Proceedings were commenced by the 3^rd plaintiff against the 1^st defendant being proceedings HBC0188 of 1992 and these proceedings were dismissed by Lyons J. on the 9^th February 1996.

The 1^st defendant ultimately transferred the subject lease to the 2^nd defendant on the 21^st March 2003 however the 3^rd plaintiff is now in physical occupation of part of property that forms the basis of the current proceedings.

The Proceedings

By statement of claim dated 9^th October 2003, the plaintiffs seeks against the 1^st and 2^nd defendant a declaration; an order for account and for payment of amounts found due to the plaintiffs by the 1^st defendant; together with special damages of $1,054,000.00, general damages and an order restraining the 2^nd defendant from interfering with the quite enjoyment of the property. Specific performance is not sought as a remedy in the Writ of Summons.

The principles applicable of the granting of an interlocutory injunctive relief are clearly dealt with in American Cyanamid v Ethicon [1975] UKHL 1; [1975] A.C. 396.

The fundamental principles are:

1. Is there a serious issue to be tried?

2. Are damages an adequate remedy?

3. Where does the balance of convenience lie?

It is of course necessary for an undertaking as to damages to be given by the applicant seeking relief.

If damages are an adequate remedy, then there is of course no basis for the granting of injunctive relief.

In this matter, the plaintiffs are of the opinion that damages are an adequate remedy as that is the relief sought in the Writ of Summons. In these circumstances, it appears unnecessary to consider any of the other issues argued before the court to dispose of the matter. The Notice of Motion dated 15 October 2003 is dismissed. The plaintiffs are to pay the 1^st and 2^nd defendants’ costs as assessed or agreed.

JOHN CONNORS
JUDGE

At Lautoka
24 June 2005