Sabharwal v Bank of Baroda [2005] FJHC 579; HBC0342.2003L (26 August 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,
ATUL KUMAR SABHARWAL
f/n Brij Raj Sabharwal and
ANIL KUMAR SABHARWAL
s/o Brij Raj Sabharwal
Plaintiffs

AND:

BANK OF BARODA
1st Defendant

AND:

RAJENDRA PRASAD BROS. LTD
2nd Defendant

Counsel: Dr. Sahu Khan for the plaintiffs
Mr. K. Kumar for Mr. G.P. Lala for the 1st defendant
Mr. K. Kumar for the 2nd defendant

Date of Hearing: 20 May 2005
Date of Ruling: 26 August 2005

RULING

This matter comes before the court by way of summons dated 2^nd April 2004 filed on behalf of the 1^st defendant seeking to strike out the plaintiffs’ statement of claim pursuant to Order 18 Rule 18 (1) (a) (b) (c) and (d) of the High Court Rules of Fiji.

Background

It appears to be a history of litigation involving some or all of the plaintiffs and the 1^st defendant since at least 1992 concerning the same parcel of land. The 3^rd plaintiff appears to be the driving force in the current litigation and pleads that the subject property was sold by the 1^st defendant to the 2^nd defendant at an undervalue and that further purchasers were available albeit that the pleading discloses that their tenders were lodged some almost 3 months late. The statement of claim alleges fraud on the part of the 1^st defendant. The 1^st defendant in its statement of defence pleads inter alia that the issues raised in this action have been determined by the High Court in Action No. 105 of 2001L.

From the statement of claim, it would appear that the plaintiffs action is entirely dependent upon the allegation of the additional tenders to purchase the subject land. The plaintiffs plead that tenders called by the 1^st defendant closed on the 15^th April 1996 and that a tender in the sum $435,000.00 was received by the 1^st defendant on the 10^th July 1996 and a further tender in the sum of $375,000.00 was received by the 1^st defendant on the 8^th July 1996. In the circumstances, it is difficult to understand from the pleadings how the plaintiffs intend to establish the particulars of fraud which rely upon the tenders received late.

The statement of claim further alleges damages for items lost or removed from the property having an alleged value of $754,000.00 whilst the property was in the possession of the 1^st defendant as mortgagee.

The first ground under Order 18 is that there is no reasonable cause of action. A reasonable cause of action has been held to be a cause of action with some chance of success when only the allegations on the pleading are considered in Drummond-Jackson v British Medical Association [1970] WLR 688.

Frivolous and vexatious is the second basis alleged. This phrase was considered by Lindley LJ in Attorney General of Duchy of Lancaster v L & N W Railways Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274 at 277 as being obviously unsustainable and an abuse of process:

“Connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper used of its machinery and will in a proper case summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation” – Castro v Murray [1854] EngR 673; [1875] 10 Ex. 213.

The law governing the considerations is well settled. Lindley MR in Hubbuck v Wilkinson [1889] 1 Q.B. 86 at page 91 said:

“It is only in plain and obvious cases that recourse should be had to the summary process under Order 18 Rule 18 (1) of the Rules of the High Court. This was affirmed in Kemsley v Foot & Ors [1952] A.C. 345.”

The caution that should be exercised by the court when considering applications of this type, was again highlighted by Mr. Justice Pathik in Hemant Kumar v

Suresh Kumar & Ors [2003] Civil Action No. 33 of 2003 where His Lordship in applying Attorney General v Shiu Prasad Halka [1972] 18 FLR 210 at 215 said:

“I think it is definitely established the jurisdiction to strike out proceedings under Order 18 should be very sparingly exercised, and only in exceptional cases. It should not be exercised where legal questions of importance and difficulty are raised.”

The issues have also been considered by the High Court of Australia from time to time and in Dey v Victorian Railways Commissioners 78 CLR 62 at 84 Latham CJ said:

“But it is argued that if a case involves any question of difficulty the summary procedure of dismissing an action as vexatious should not be applied. ...”

Conclusion

Whilst it would appear that the plaintiffs’ claim may well have some difficulties, it is a far cry from being satisfied that it should be struck out pursuant to Order 18 Rule 18. The history of this litigation however does not fill the court with confidence that the plaintiff would ultimately be able to prove his claim. However, similarly it is not sufficiently “plain and obvious “to enable the court to strike out the proceedings pursuant to Order 18 Rule 18. Should it be that in the end, the plaintiff is in fact unsuccessful then of course it would follow that the plaintiffs would suffer an appropriate cost penalty.

Orders of the Court

The 1st defendant’s summons filed on the 2nd April 2004 is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
26 August 2005