Kumar v Habib Bank Ltd [2005] FJHC 641; HBC0305.2003 (15 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0305 OF 2003

BETWEEN:

RAKESH KUMAR
PLAINTIFF

AND:

HABIB BANK LIMITED
DEFENDANT

Mr D. S Naidu for the Plaintiff
Ms B. Narayan for the Defendant

Date of Hearing: 14 June 2005
Dates of Submissions: 28 June 2005 & 5 July 2005
Date of Ruling: 15 July 2005

RULING OF FINNIGAN J

This unfortunate action has been spiralling downwards practically since the date it was filed [3 September 2003]. I have been asked to decide two interlocutory motions. One seeks to undo a previous interlocutory ruling on an interlocutory motion and the other seeks essentially the substantive relief for which the Plaintiff prays in his writ and his statement of claim. The Plaintiff has been trying to achieve this objective by these means i.e. interlocutory motion since the day he filed one with his writ and statement of claim. He has partially achieved that and the Defendant wants that set aside. The Plaintiff has shown no inclination to put his claims to the test at a trial.

I heard full and extensive submissions from both Counsel on 14 June 2005. It was the third time the Defendant had tried to present those submissions. Both Counsel sought the opportunity for further submissions and I programmed the time. No further submissions have been filed.

The Plaintiff is Mortgagor under what prima facie is a validly executed and registered mortgage. The Defendant is Mortgagee. The Plaintiff claims the Defendant by unquestionable conduct and/or unjust transaction and/or unfair trade practice procured his signature on the mortgage knowing that it had advanced the secured funds not to him but to another party. He wants the mortgage declared null and void and related restraining orders and declarations. He filed simultaneously with is writ an ex-parte motion seeking much the same remedies. Byrne J declared this motion should proceed inter-partes. Defendant’s Counsel was en-route from Suva for the hearing when he learned that Byrne J had left Fiji, and so returned to Suva. This all occurred in September 2003. On 17 November 2003 the Plaintiff filed ex-parte again for an order restraining the Mortgagee from acting under the mortgage. The following day Byrne J granted that order.

Six months later on 12 May 2004 the Defendant filed a summons to discharge that order. Once again Counsel came from Suva but says she was not heard because upon arrival she was informed the Court had been closed by failure of the water supply. The file shows however that on a day in July 2004 Singh J presided at a hearing and programmed submissions for a written ruling on the summons which he subsequently delivered orally. It was later reduced to writing. He dismissed the Defendant’s application on the basis that “the circumstances in which the mortgage was given need to be investigated”.

That of course is self evident, and that is the reason why this claim should have proceeded to a hearing.

On 21 October 2004 the Defendant filed a summons to set aside the ruling of Singh J and to restore its own application to discharge the ex-parte order made by Byrne J. On or about 4 November 2004 the Plaintiff filed a summons for a declaration that the mortgage is null and void, seeking indemnity costs of $5,000.0. The last two applications are the ones that came before me on 14 June.

Decision

I listened carefully to Counsels’ oral submissions and read the written submissions of the Defendant and waited for further submissions which did not come. I have no doubt that to grace either of these applications with a decision would be counter-productive and contrary to good practice. There are simple factual issues which need to be heard and should have been heard before now. The Plaintiff has tried to short cut and has obtained partial relief. If his action fails he will have a considerable debt to the Defendant, but the Defendant has its mortgage. If his actions succeeds then he has added to his interlocutory relief, and the mortgage will be discharged.

I refuse to determine either of these interlocutory applications. They are dismissed. The matter will be allocated a hearing date and any pre-trial matters outstanding can be dealt with in the meantime. The parties have already missed the callovers in April and May 2005 at which time they could have been allocated a hearing. The next callover will be on 25 November 2005 and this matter will be listed that day.

On these two applications each party will bear its own costs.

D.D. Finnigan
JUDGE

At Lautoka
15 July 2005