Singh v Housing Authority [2005] FJHC 739; HBC0645.1998 (17 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0645 OF 1998

BETWEEN:

SHANKAR SINGH
Plaintiff

AND:

HOUSING AUTHORITY
Defendant

Counsel: Mr. R. Singh – for Plaintiff
Mr. V. Maharaj – for Defendant

Date of Hearing: Tuesday 3rd May, 2005
Date of Judgment: Tuesday 17th May, 2005

JUDGMENT

Introduction

The applicant has re-applied by summons to fix time for the Housing Authority Defendant to obey an alleged order of the Court dated the 7th of September 2004 transferring to him a property situated at 14 Kapadia Place, Raiwai.

The application is supported by his affidavit.

The application is opposed.

The plaintiff and defendant were content that the matter be resolved based on the file history and affidavits and this decision be given on notice.

Curial History

Mr. Singh his de-facto partners and a son occupied the subject land.

The property was subject to a mortgage to the Housing Authority. The mortgage fell into arrears. At this time Mr. Shankar Singh had temporarily vacated the house leaving it in the possession of his de-facto wives Veena and Sunila Singh together with his son Shailendra Singh.

The Housing Authority gave notice to the occupants to vacate the premises. They refused to do so. The Authority then commenced a High Court action independent of these proceedings referenced No. 89 of 2004. This was a vacant possession application under Order 88 of the High Court Rules. An order for vacant possession was made against all of the occupants by my learned elder brother Justice Pathik on the 31st of August 2004. That Order has not been successfully appealed, it is not stayed and is current.

The difficulty arose in that Mr. Shankar Singh, in this Action 645 of 1998, had commenced proceedings to stave off an earlier application for mortgagee sale by the Housing Authority. This action settled by order of the court on the 8th of September 1999 for terms of the settlement being:

"1. The Defendant hereby agrees and undertakes to transfer the property subject to this action and comprised in Housing Authority Sub-Lease No. 182 100, Lot 27 on D.P. 3927 situated at 14 Kapadia Place, Raiwai to the Plaintiff subject to the existing Mortgage Registered Number 213355 given by Kamlesh Chandra to the Housing Authority.

2. The Plaintiff to clear all arrears and strictly comply with the terms of the said Mortgage.
   
3. The Plaintiff will indemnify the Housing Authority against any claims that may be instituted by Kamlesh Chandra in relation to the transfer of the aforesaid property to the Plaintiff by the Housing Authority."
   

By letter of the 18th of May 1999 the Authority’s Solicitors wrote to the Plaintiff’s Solicitors attached a statement of account advising the amount it required to clear the mortgage debt.

In breach of the terms of settlement the plaintiff, I find as a matter of fact, failed to clear all mortgage arrears and strictly comply with the terms of the mortgage. Arrears on the mortgage continued to accrue.

The Authority let that situation drift on for another 3 years. Then on the 11th of December 2002 they called for tenders and pressed on with the mortgagee sale of the property. They believed they were no longer bound by the consent order as its prime and fundamental terms had been breached by this plaintiff.

They were correct in this belief.

In my view these two actions should long ago have been consolidated. I called for file HBC 89 of 2004 and it was clear from the curial history on that file and this one that the plaintiff has done nothing more than fail to pay his mortgage and frustrate the mortgagee sale process.

The Practical Resolution

The motion, as filed, seeks to force the Housing Authority to comply with an order dated the 7th of September 2004. There is no such order on file 645 of 1998. In my view the application lacks substantive and procedural merit and is dismissed with costs that I fix at $500.00 and order to be paid within 7 days of delivery of this judgment to the Housing Authority.

I find that because of the plaintiff’s fundamental breach of the terms of settlement the defendant is no longer bound to the Memorandum of Settlement or Court’s Order. The Housing Authority can now proceed to obtain possession and complete the mortgagee sale of these premises making such further applications on HBC 645 of 1998 or HBC 89 of 2004 as it deems necessary to effect that purpose. However, they must first apply to consolidate these two proceedings.

Gerard Winter
JUDGE

At Suva
17th May 2005