Bank of Baroda v National MBf Finance Ltd [2005] FJHC 574; HBC0191.1998L (17 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL APPEAL NO. HBC0191 OF 1998L

BETWEEN:

BANK OF BARODA
Plaintiff

AND:

NATIONAL MBF FINANCE (FIJI) LIMITED
Defendant

Counsel: Mr. V. Mishra with Ms. M. Muir for the plaintiff

Date of Hearing: 17 August 2005
Date of Judgment: 17 August 2005

EX TEMPORE JUDGMENT

The plaintiff brings its cause of action by Writ of Summons filed on the 22^nd June 1998. The statement of claim pleads what might be summarized as a cause of action arising against the defendant by virtue of the defendant having seized goods from Bubble Up Investments Limited, which goods were the security with respect to various security documents between the Bubble Up Investments Limited and the plaintiff.

The defendant filed a statement of defence on the 18^th September 1998. The defendant does not appear to oppose the proceedings today and counsel for the defendant appeared at the commencement of the proceedings and sought leave to withdraw on the basis that he had had no response from the alleged receiver of the defendant company and was unable to get instructions. Some discussions took place as to the status of the defendant company. However the matter has proceeded to a hearing on the basis of counsel for the plaintiff informing the court that the company has not been wound up nor has a liquidator been appointed, but that at some point in time at least a receiver was in existence with respect to the affairs of the company.

The manager of the plaintiff bank, Ba Branch at the relevant time, Raj Gopal Achariya, gave evidence before the court and tendered a prior affidavit sworn by him as Exhibit P-1. That affidavit places before the court the copies of the debenture and Bill of Sale. Those documents are also contained within Exhibit P-2.

It is clear from Exhibit P-2 and the oral evidence referred to, that the plaintiff at all relevant times had a Bill of Sale and debenture over the assets of Bubble Up Investments including the assets seized by the defendant. The assets seized by the defendant and the subject of the securities are detailed in Exhibit P-2.12. The effect of the seizure by the defendant of the goods from Bubble Up Investments Limited was that, that company could no longer trade, could no longer produce its soft drink products and was then unable to make repayments with respect to the monies advanced by the plaintiff to it. The total monies advanced at that time by virtue of the security documents and their renewal was $550,000.00. The amount outstanding pursuant to those security documents was $431,303.95.

I am satisfied that the actions of the defendant in seizing the goods, the subject of the security to the plaintiff, was a breach of the title held by the plaintiff with respect to those goods and not only did it deprive the plaintiff of that security but in depriving Bubble Up Investments Limited of the essentials of its business, it deprived the plaintiff of the repayment of the monies owing to it by Bubble Up Investments Limited.

The various security documents contained within Exhibit P-2, have all been appropriately registered or at least bear evidence of their appropriate registration.

The plaintiff has tendered to the court Exhibit P-3 which sets forth a summary of the accounts and leads to the ultimate calculation and the balance currently outstanding, $774,423.66 being the original balance owing together with interest pursuant to the terms of the securities that 13% per annum.

I should note that in addition to the security documents referred to, the plaintiff bank also held guarantees and attempts have been made to call on those guarantees unsuccessfully and evidence was given that it is understood that the Director of Bubble Up Investments Limited has absconded to Canada. Evidence was also given of security that is held over the real estate owned and occupied by Bubble Up and that the attempts to realize these securities has been unsuccessful due to the imminent expiry of the native leases. In the circumstances therefore I am satisfied that the plaintiff is entitled to recover the monies owing to it from the defendant.

Orders of the Court

1. Verdict and judgment for the plaintiff in the sum of Seven Hundred Seventy Four Thousand, Four Hundred Twenty Three Dollars and Sixty-Six Cents ($774,423.66).
   
2. The defendant is to pay the plaintiff’s costs which I assess in the sum of Two Thousand Five Hundred Dollars ($2,500.00).
   

John Connors

JUDGE

At Lautoka

17 August 2005