Merchant Bank of Fiji Ltd v Bubble Up Investments Ltd [2005] FJHC 582; HBC0297.1998L (29 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0297 OF 1998L

BETWEEN:

MERCHANT BANK OF FIJI LIMITED
Plaintiff

AND:

BUBBLE UP INVESTMENTS LIMITED
1st Defendant

AND:

BASEER AHMED SHAH, SAHZAD AHMED SHAH
and SADIQ AHMED SHAH
2nd Defendant

Mr. T. Tuitoga for the plaintiff
No Appearance for the defendants

Date of Hearing: 29 August 2005
Date of Judgment: 29 August 2005

EX TEMPORE JUDGMENT

The plaintiff brings its cause of action by Writ of Summons filed on the 8^th October 1998. The statement of claim pleads that the 1^st defendant was indebted to the plaintiff pursuant to an asset purchase agreement dated the 29^th August 1995 and a loan contract dated the 15^th March 1995. The 2^nd defendants guarantee the repayment of the monies advanced pursuant to the asset purchase agreement and loan contract.

The defendant filed a statement of defence and a counterclaim. In the statement of defence whilst the 1^st defendant denies any liability pursuant to the agreements also maintained breaches of the Fair Trading Decree upon the execution of the asset purchase agreement and loan contract. A counterclaim refers to Bills of Sale and alleges that they have not been registered as required.

The defendants do not appear before the court in these proceedings.

The plaintiff has tendered before the court the asset purchase agreement dated the 29^th August 1995 wherein the total sum of $48,021.12 was advanced with respect to the purchase of a motor vehicle registered number CP 998. Exhibit P-2 is a print out with respect to the relevant account that shows as at the 28^th April 1998, the sum of $13,381.71 was outstanding by the defendants to the plaintiff with respect to the agreement.

The plaintiff also tenders (Exhibit P-3), the loan contract dated the 18^th March 1995 wherein the plaintiff advanced to the defendants the total sum of $106,463.16 with respect to injection moulding machinery. This agreement like the earlier agreement was guaranteed by the 2^nd defendants.

Exhibit P-4 sets forth details of the monies outstanding pursuant to the loan contract which as at the 3^rd September 1997 at about $55,493.69.

By Exhibits P-5, P-6 and P-7, the plaintiff made demands at various times upon the defendant for repayment of the monies then outstanding.

The plaintiff now claims as per the statement of claim the sum of $67,775.40 together with interest at the rate of 24% from the 30^th September 1997 (the date of issue of the statement of claim to date). The interest rate sought is prescribed pursuant to the terms of the two agreements.

The plaintiff also seeks costs to be assessed in the sum of $2,000.00.

Upon the evidence placed before the court, I am satisfied that the defendants are indebted to the plaintiff as alleged and accordingly, the Orders of the Court will be:

1. Judgment for the plaintiff against the 1^st and 2^nd defendants in the sum of Sixty Seven Thousand, Seven Hundred Seventy Five Dollars and Forty Cents ($67,775.40) together with interest at the rate of 24% from the 30^th September 1997 to date.
   
2. The defendants to pay the plaintiff’s costs assessed in the sum of Two Thousand Dollars ($2,000.00).
   

John Connors

JUDGE

At Lautoka

29 August 2005