Country Real Estate Ltd v Kaur [2005] FJHC 682; HBC0007.2005L (25 January 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0007 OF 2005L

BETWEEN:

COUNTRY REAL ESTATE LIMITED
Plaintiff

AND:

AMRIT KAUR
d/o Mohan Singh
Defendant

Counsel for the Plaintiff: Mr. H.A. Shah
Counsel for the Defendant: Mr. S. Krishna

Date of Hearing: 24 – 25 January 2005
Date of Judgment: 25 January 2005

EXTEMPORE RULING

This matter comes before the court by way of two Notices of Motion. The first, having been filed on behalf of the plaintiff on the 18^th January 2005 and the second, having been filed on behalf of the defendant on the 21^st January 2005.

The plaintiff’s Notice of Motion seeks an order that the defendant forthwith release unto the plaintiff three motor vehicles being a Toyota Corolla Registered No. EA 394, a Toyota Corolla Registered No. EQ 189 and a Mitsubishi Galant Registration No. DN 955.

On the 18^th January 2005, the court made orders with respect to the three motor vehicles consequent upon the Notice of Motion being dealt with on an ex-parte basis. The orders made by the court required the defendant to release the three motor vehicles to the plaintiff for immediate delivery to the Magistrates Court, Lautoka Compound and required that the Notice of Motion be listed for inter-parte mention.

The defendant’s Notice of Motion seeks to dissolve the orders of the 18^th January 2005 and seeks the dismissal of the plaintiff’s Notice of Motion. Both motions of course seek respective orders for costs.

The plaintiff’s motion is supported by an affidavit of Davendra Kumar Sharma sworn on the 17^th January 2005 and the defendant’s motion supported by an affidavit of Amrit Kaur sworn on the 21^st January 2005.

When the matter came before the court on the 24^th January 2005, I directed that the matter proceed by way of oral evidence due to the significant conflict in the affidavits filed on behalf of the plaintiff and by the defendant. As required the plaintiff has filed a writ of summons on the 18^th January 2005 and the statement of claim in that writ of summons alleges fraud on behalf of the defendant and seeks the return to the plaintiff of the three motor vehicles referred to earlier together with general damages.

The oral evidence that has been put before the court commenced with the evidence of the defendant whose evidence-in-chief generally accorded with that contained in her affidavit. She was cross-examined and under cross-examination did not demur from the evidence that she had given both on affidavit and before the court.

The defendant appeared to be a very forthright witness who gave her evidence in a clear manner. In summary, she says that Davendra Kumar Sharma went to India on the 10^th October 2004 for the purposes of having a kidney transplant and that he returned to Fiji on the 3^rd January 2005. In his absence, she was authorized to effectively administer the plaintiff and to reside in Davendra Kumar Sharma’s house to care for it. She says that Davendra Kumar Sharma telephoned her almost daily from India. He gave her instructions as to what to do and that in the course of these telephone conversations, he instructed her to effect the transactions, the subject of the proceedings, that is to draw the cheques and do such other things as are alleged to have been done to facilitate the acquisition of the three motor vehicles.

It is not in dispute that this resulted in the sum of $13,398.00 being spent or appropriated by the defendant. This amount includes the trading in of a motor vehicle, the property of Davendra Kumar Sharma, being the motor vehicle registered no. CR 312. This vehicle was traded in to Automart Limited to facilitate the purchase of motor vehicle EQ 189. Motor vehicle DN 955 is the subject to the Bill of Sale to Credit Corporation (Fiji) Limited, the mortgagor being the defendant. The amount financed being $10,908.00. Vehicle EQ 189 is on the evidence of the defendant to be mortgaged to Credit Corporation and is to be the subject of a Bill of Sale. The remaining vehicle EA 394, in her evidence was purchased from the Colonial National Bank. A transaction that appears to have commenced in June 2004 and being based upon an undated cheque, which was ultimately dated the 31^st December 2004.

She says that throughout the period of her employment which she said was 14 years, she hadn’t been paid any FNPF contributions, no taxation had been deducted or paid on her behalf. She had received no sick pay, no holiday pay, no commissions, no bonuses and she says that this was the reason that Davendra Kumar Sharma was giving to her the deposit for the three motor vehicles with her having the responsibility to make the payments with respect to those vehicles. The vehicles were then to be included in the fleet of vehicles with a related company, Country Rentals Limited, of which the defendant is a 5% shareholder.

The defendant is the eldest daughter in law of Davendra Kumar Sharma.

Evidence was also given on behalf of the defendant to the court by Radei Krishna Sami, a salesman at Automart Limited. The man said he was responsible for the sale of EQ 189 and the trading in of motor vehicle CR 312. He says that Davendra Kumar Sharma telephoned him twice from India, giving him instructions as to what was to happen with respect to the trade in of the vehicle and the purchase of the other vehicle EQ 189. He says that vehicle EQ 189 was in fact delivered on the 4^th January 2005 after Mr. Sharma had returned to Fiji. He said the transfer document was delivered by him to Mr. Sharma and was signed by Mr. Sharma in his presence in the office of Mr. Sharma and also in the presence of Donald Sharma, a son of Davendra Kumar Sharma.

He says that a couple of days later, he got a telephone call from Mr. Sharma wanting to cancel the deal due to a family dispute. Quite clearly, there is a family dispute but no other evidence has been placed before the court with respect to that dispute.

The General Manager of Automart Limited, Mr. Hasmukh Patel, gave evidence that his involvement with the particular transactions was indeed limited and relevantly he could merely confirm that Mr. Sami had the conduct of the transaction.

For the plaintiff, the first witness called was the son of Davendra Kumar Sharma, Donald Sharma and he said that he was 21 years of age and that he been educated to Class 8. He was a most unimpressive witness. He said he resided with his father. He gave evidence of delivering and picking up motor vehicles and denied the transfer document for motor vehicle CR 312 to Automart was executed in his presence but he did confirm that the transaction with respect to motor vehicle CR 312 and motor vehicle EQ 189 was concluded after his father had returned from India to Fiji.

Davendra Kumar Sharma gave evidence and he said that he had not read the affidavit of the defendant. He said he gave no authority at any time for the defendant to appropriate the monies or motor vehicle CR 312 for her benefit. He denied that she had been employed for a period of 14 years but said she come and gone several times and had been employed for a total of 6 or 7 years. He acknowledged that no FNPF or tax had ever been deducted. He said that the signature on the Land Transport Authority form with respect to vehicle CR 312 wasn’t his but looked like his.

He said that the defendant was left in charge of the plaintiff but put a very different slant on everything else. He says she received the benefit of residing in the house, received a motor vehicle for transport, free fuel, free food, etc. He describes the amount of money that has been spent on his medical procedure. $50,000.00 was borrowed and it has to be paid back. The plaintiff company is in no position and was in no position to make the gifts that the defendant alleges have been made to her. He says he owes a total of $70,000.00. In cross-examination, it becomes apparent that he is the owner of 22 motor vehicles that are operated under Country Rentals Limited and other family members have a further 5, bringing to a total of 27 motor vehicles that are operated as rental vehicles.

There is also the plaintiff’s business although there is no evidence as to the income it generates.

I should have referred earlier to the fact that the defendant in her evidence gave evidence that she has commenced another business, a Real Estate business operating at the airport at Nadi and clearly has left the employment of the plaintiff.

The orders sought by the plaintiff are in the form of a mandatory injunction. The considerations or principles to be taken into account are considered and set forth in Redland Bricks Limited v Morris & Anr [1970] A.C. 652. At page 665 the court said:

“1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly.

2. Damages will not be a sufficient or adequate remedy if such damage does happen.
   
3. If in the exercise of its discretion the court decides that it is a proper case to grant a mandatory injunction, then the court must be careful to see that the defendant knows exactly in fact what he has to do as in any form of injunction.”
   

The relief sought is only granted if it is apparent that damages will not be an adequate remedy at the end of the day. As I said earlier the statement of claim filed by the plaintiff whilst alleging fraud on the part of the defendant seeks, inter alia, damages. The amount of money alleged to have been misappropriated by the defendant is $13,398.00. It would seem to me that the real claim is most certainly a claim in damages and that claim is in fact quantified in the sum of $13,398.00. In the circumstances therefore there is no basis for the granting of the injunctive relief sought by the plaintiff.

The orders of the court are:

1. The Notice of Motion filed on the 18^th January 2005 is dismissed.

2. The Orders of the Court of the 18^th January 2005 are dissolved.

3. The plaintiff is to pay the defendant’s costs of both motions assessed in the sum of One Thousand Dollars ($1,000.00).
   

JOHN CONNORS
JUDGE

At Lautoka

25 January 2005