Sharma v Akhil Projects Ltd [2008] FJHC 287; HBC155.2002 (9 May 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 155 OF 2002

BETWEEN

TOTA RAM SHARMA
f/n Ram Chandra Sharma
Plaintiff

AND

AKHIL PROJECTS LIMITED
Defendant

Appearances: Messrs A K Singh Law for the plaintiff
Messrs S B Patel & Co. for the defendant

Hearing & submissions: 28, 29, 30 November 2006, 15, 16, 17 January 2007,
12 February 2007, 18 April 2007, 7 May 2007

Judgment :9 May 2008

JUDGMENT

Introduction

[1] The plaintiff’s action is premised on three agreements for sale of land between him and the defendant. The claim is for damages. The plaintiff does not seek relief for the performance of any of the agreements.

The plaintiffs claim

[2] In his second amended statement of claim, dated 26 June 2006, (the plaintiff’s claim) he alleged that at all material times, he was an Assignee for Ram Kishore Sharma, Nand Ram Sharma and Madhu Mangal Sharma.

[3] He claimed that on 6 June 1988, an agent of the defendant obtained a loan of $10,000.00 from him. In or about 1990, a further loan of $10,000.00 was alleged to have been given. It was alleged that the defendant’s agent gave assurances of repayment of the loans. Sometime in 1993, the plaintiff says he demanded the "refund of his loan of $20,000.00".

The First Agreement

[4] "At that material time" (I assume when the alleged demand for refund was made) it was alleged that the defendant made an offer to the plaintiff to enable the defendant to clear "his" loan of $20,000.00, by selling part of the defendant’s freehold property at Johnson Road, Lautoka. On 28 July 1995, the plaintiff, with others (referred to in paragraph [2] above), entered into a written agreement to buy vacant freehold land comprising 20 acres on D.P. 4278 situated in Drasa, Lautoka being part of CT 16280 in the sum of $60,000.00 (the 1st agreement).

[5] The terms of the first agreement pleaded and relied on by the plaintiff at paragraph 8 of the claim included, interalia:

(i) the defendant acknowledged receipt of a non-refundable deposit of $35,000.00

(ii) the balance purchase price of $25,000.00 would be settled by the plaintiff on the date of settlement

(iii) the plaintiff would carry out a survey of the property which was to be completed before the date of settlement

(iv) the date of settlement was 31 December 1996 or such other date by mutual agreement in writing

(v) on settlement, the defendant would provide a registrable title in exchange for a bank cheque of $25,000.00

(vi) the defendant would procure a separate Certificate of Title to be handed to the plaintiff provided that the plaintiff would carry out the survey

(vii) the plaintiff would take possession of the property on the date of settlement.

[6] The plaintiff claimed that after execution of the first agreement he paid a deposit of $35,000.00 which included the alleged outstanding loan of $20,000.00 and $15,000.00 cash paid on execution, without a receipt being issued. The plaintiff alleged that in breach of this agreement, the defendant failed to provide a clear title to him.

The Second Agreement

[7] It was alleged that between 28 July 1995 and December 1996 the defendant entered into a further written agreement, (the 2nd agreement) wherein the defendant agreed to sell 3 more acres of land for $9,000.00. The plaintiff pleads the following terms:

(i) that the plaintiff would pay a deposit of $5,000.00 at the time of execution, which he allegedly did and which was acknowledged in the second last paragraph of the second agreement

(ii) the balance of $4,000.00 would be paid by 31 December 1996.

[8] The plaintiff claimed that on 10 September 1996, he had the property surveyed and registered as required by the agreement dated 25 July 1995. Further that on 5 February 1997 he paid $30,500.00 in respect of the following properties:

(i) $25,000.00 the balance payable under the 1st agreement

(ii) $4,000.00 the balance payable under the 2nd agreement

[9] It was alleged that in breach of the agreement, the defendant failed to provide a clear title to the plaintiff.

The Third Agreement

[10] The plaintiff alleged that the defendant acknowledged an overpayment of $1,500.00. At paragraph 18 of the claim, it was alleged that "since the plaintiff had paid $1,500.00 extra to the defendant", the defendant in or about 1998, offered to sell a further 10 acres of his land to the plaintiff.

[11] It was alleged that on 6 March 1998 the parties entered into another written agreement (the 3rd agreement) wherein the defendant agreed to sell and the plaintiff agreed to buy a further 10 acres of land for the sum of $30,000.00. The terms of this agreement pleaded were that:

(i) the defendant acknowledged receipt of a non-refundable deposit of $3,000.00

(ii) the balance purchase price of $27,000.00 was to be paid through cane proceeds payable by the Fiji Sugar Corporation (FSC) to the defendant

(iii) the date of settlement was 31 March 2008 or a date mutually agreed to in writing

(iv) on settlement date the defendant would hand over a registrable transfer of the property in favour of the plaintiff.

[12] The plaintiff alleged that on the 6 March 1998 he made a cash payment of $1,500.00 to the defendant which in addition to the alleged prior overpayment of $1,500.00 fulfilled his deposit obligation of $3,000.00. The plaintiff alleged that in breach of the 3rd agreement, the defendant failed to provide a separate Title to the plaintiff in breach of the 1st agreement and the undated 2nd agreement.

Further Payments

[13] The plaintiff alleged that on 20 May 1999 he paid the defendant a cash payment of $23,752.00. Further that in compliance with the 3rd agreement, he paid the balance sum of $27,000.00 to the defendant well before the settlement date. That by the year 2000 he had paid the defendant the total sum of $128,383.00 which he alleged as "being an extra $29,383.00 from the total sale price of $99,000.00".

Plaintiff’s Agreement with a Third Party

[14] The plaintiff says that he entered into an agreement to sell the property to a third party for the sum of $300,000.00. Further that due to the defendant’s negligence (particulars not pleaded) or due to the breach of the 1st agreement, the plaintiff "lost" his agreement with the third party and suffered a loss of $300,000.00.

Fraud

[15] Paragraphs 41 to 45 of the claim contain allegations of fraud. Suffice it to say that fraud is alleged to have arisen by virtue of the execution of a partial transfer in favour of the plaintiff, executing transfer(s) in respect of property not subject of the agreements, and executing a transfer of 10 acres on CT 29593 with the intention of unjust enrichment.

The 2nd Amended Statement of Defence

[16] The alleged loans referred to at paragraph [3] herein are denied. The defendant alleged that in relation to the 1st agreement, the true conditions of contract were not contained in the contract document. It was alleged that no deposit of $35,000.00 was ever paid to the defendant. Further that this provision was inserted to enable the plaintiff to approach the bank and obtain a loan by showing an equity in the property. It was alleged that possession was taken by the plaintiff immediately upon execution of the agreement. That prior to the settlement date of 31 December 1996 the plaintiff failed to complete the sub-division of the defendant’s land so as to enable the defendant to procure a separate Certificate of Title to be issued to the plaintiff.

[17] In relation to the 2nd agreement, the defendant alleged that the purported agreement was null and void ab intio as being contrary to Section 4 of the Sub-division of Lands Act. The plaintiff’s allegation of payment of the sum of $5,000.00 was denied, further that if there was an agreement, (which was denied) the same did not contain all the essential terms of the purported agreement. All the allegations made in respect of payment under this agreement were denied.

[18] In regard to the 3rd agreement, the defendant pleads that while it entered into a purported agreement for the sale of some uncertain area of 10 acres of land, the allegations made in respect of this agreement are denied. It was also alleged that there was no certain area of land described in the agreement. The allegations made in respect of the Transfer documents are denied and further the Transfer forms were not in registrable form.

[19] The defendant alleged that the plaintiff, in any event, failed to fulfill all or any of the conditions imposed on him in relation to the three agreements and is therefore precluded from bringing this action. The defendant also pleaded that the plaintiff did not at any stage make time of the essence in any of the three agreements, or gave the defendant any notice requiring completion by a certain date and proceeded unilaterally to terminate the agreements. It was alleged that by his actions and the bringing of these proceedings, the plaintiff wrongfully terminated and repudiated the three agreements and was therefore not entitled to maintain or bring this action.

The Issues

[20] The plaintiff’s pleadings as with much of the evidence heard from the plaintiff’s witnesses and produced by the plaintiff was at best disjointed. The defendant, at pages 2, 3 and 4 of its submissions filed on 12 February 2007, distilled the issues arising from the evidence as well as from the pleadings which I have summarized and set out below:

(i) On whom does the onus of proving payment rest? What payments did the plaintiff make to the defendant?

(ii) What breaches or failure to comply with the requirements of the three Agreements were alleged in the pleadings and proven by the plaintiff at the hearing?

(ii) Did the plaintiff give any notice to complete or make time of the essence? Was it necessary and essential that the plaintiff should give such notice or make time of the essence before a breach could be alleged?

(iv) Was the plaintiff entitled to rescind Agreements 1 and 2?

(v) Are the parties both equally at fault on the issue of the proceeds of cane? If so, is the plaintiff entitled to recover those sums?

(vi) What were the precise terms of Agreement 3? Was the plaintiff entitled to rescind Agreement 3?

(vii) What are the consequences of the three transfers prepared by Mr. G P Shankar?

(viii) What is the consequence of the transfer of the 23 acres more or less executed in G P Lala’s office and subsequently lodged for registration?

(ix) Have the allegations of fraud been established?

(x) What damages, if any, has the plaintiff suffered and is entitled to?

Payments Allegedly Made

[21] The onus of establishing breach and right to repudiate lies with the plaintiff.

[22] In Ammar –v- Deoki[1] the Court of Appeal stated the general rule regarding parol evidence in transactions involving the sale of land and cited with approval the judgment in Hammond –v- Inland Revenue Commissioner[2] Held:

"This general rule is of course subject to exceptions as the learned authors in Halsbury’s Laws of England 3rd Edn. Vol. 11 at p. 402 state:-

Parol evidence is also admissible to show that the transaction is affected by fraud, immorality, illegality, duress or mistake; to show the true consideration or the existence of consideration or of consideration in addition to that stated; to show the nature of the transaction or the true relationship of the parties."

The Court held at page 9 of the judgment that:

"It is also clear that a receipt for money though contained in an instrument under seal is not conclusive that the money has been in fact paid and parol evidence can be given of the non-payment of the whole or part of it".

1st Agreement

[23] The evidence from the plaintiff and his witnesses on payments under this Agreement was confused, inconsistent with what was pleaded in the plaintiffs claim and tainted by the witnesses giving differing and vague accounts of the alleged payments made to the defendant. As submitted by the defendant, the documentary acknowledgment of sums that the plaintiff is stated to have paid, at first blush, would tend to indicate that the plaintiff has satisfied the onus to prove payments. However given the inconsistencies in the plaintiff’s evidence, I do not accept that the written acknowledgments constitute proof of payments or that the monies had in fact been paid.

[24] The receipt, number 154, relied on by the plaintiff is a photocopy. There are two versions of this receipt before the Court, both purporting to be true copies of the original receipt, which the plaintiff testified he had mislaid. I do not accept that the photocopies are true copies of an original as it is patently clear that the document has been tampered with. A photocopy of this purported receipt of funds marked "TRS8" in the affidavit sworn by the plaintiff on 22 March 2004 is completely different to that contained as document 1 in the plaintiff’s list of documents. Annexure "TRS8" contains what looks like a photocopy of a business card of a director of the defendant company, which is not superimposed on the photocopy of the receipt in the plaintiff’s bundle or what was tendered into evidence by the plaintiff as a true copy of the original receipt. This difference has not been adequately explained. In my view, the receipts placed before the Court were fabricated by the plaintiff to further his own ends. I find that the document does not establish a payment of $10,000.00, the alleged loan, to Mr. Akhil. The document has all the hallmarks of a tampered document and it would not be competent for me to rely on it as representing a genuine copy of an alleged original.

[25] With regard to the next alleged loan payment of $10,000.00, I did not find convincing at all the plaintiff’s evidence that he lent a further significant sum of money to Mr. Akhil without recording the date that he disbursed such a large sum of money or that he disbursed this money without securing a receipt for such payment. He did not strike me as a person of means to part with such a large sum of money, notwithstanding his close relationship with Mr. Akhil, without obtaining from Mr. Akhil proof that the loan was in fact given. The plaintiff’s evidence in this regard lacked any credibility whatsoever.

[26] Then we have the alleged cash payment of $15,000.00, allegedly paid to Mr. Akhil before the parties executed the 1st agreement. Again the evidence from the plaintiff and his witnesses lacked credibility. It would have been foolhardy of him to have made a further payment for such a substantial sum of money without proof of the payment being made especially as Mr. Akhil had supposedly reneged on repaying the previous loans (given, supposedly unconditionally and without the stipulation of a date for repayment) and had supposedly failed to receipt the plaintiff for the second loan of $10,000.00. The 2nd amended claim pleaded that the 1st Agreement acknowledged the payment of all three sums of money. But this is in direct contradiction of the same pleadings, paragraph 9 which stated that after execution of the agreement the plaintiff paid a deposit of $35,000.00 to the defendant. Of critical importance, it completely contradicted the evidence of the plaintiff’s son, Mr. Madhu Sharma who stated under oath, twice in cross-examination, and in relation to the 1st agreement, that his father was supposed to pay for the purchase price of the property from cane proceeds. He stated that that was the nature of the deal between his father and Mr. Akhil. Mr. Madhu Sharma’s testimony corroborated Mr. Akhil’s account of the dealing with the plaintiff that in fact no money changed hands because the consideration was to have been paid from cane proceeds from cane farmed by the plaintiff on the subject purchased land. Mr. Madhu Sharma was not an innocent bystander to this dealing. He was one of the purchasers. He testified that his father gave a deposit but he couldn’t recall the amount paid and that he did not know how much money was paid as a deposit. This testimony is astonishing to say the least from someone who was actually a party to the 1st Agreement. I have also accepted Mr. Akhil’s evidence as having been truthfully given, over that from the plaintiff, that the parties to this agreement were put on notice that given that the so called deposit of $35,000.00 had in fact not been paid, the agreement would be unenforceable should the parties have a falling-out, which was what happened in this case. I have also accepted Mr. Akhil’s version which was by far the more credible, that the insertion of the term for the deposit of $35,000.00, was put into the agreement at the plaintiff’s request to facilitate a loan application which he intended to make to purchase the property. That was the true nature of the transaction between the parties in relation to the acknowledgment of deposit clause.

[27] Also of significance, described by the defendant’s counsel as a recurrent theme in the alleged payments, was that the plaintiff failed to prove the source of the funds allegedly paid. There were no bank accounts or other financial records proving the payments of such large sums of money as two lots of $10,000.00 and one of $15,000.00. The plaintiff testified that he held four bank accounts at the time. It was wholly unsatisfactory that he chose not to produce any documentary evidence relating to these accounts and his alleged withdrawal of monies from these accounts. The same is said of his brother, Mr. Nand Ram Sharma, the alleged source of some of the funds. The failure by the plaintiff to produce these records adds weight to Mr. Akhil’s version of events. Having taken into consideration the plaintiff’s prior statement in his pleadings that the $35,000.00 deposit was paid after execution, the evidence from Mr. Madhu Sharma contradicting the plaintiff’s claims and the altered alleged receipt of payment, I have arrived at what I consider to be the unassailable conclusion that in fact no sum of $35,000.00 was ever paid to the defendant or to Mr. Akhil notwithstanding the acknowledgment of receipt in the 1st Agreement. I find that the sum of $35, 000.00 was not paid as alleged by the plaintiff.

2nd Agreement

[28] Again I find that notwithstanding the insertion of a deposit of $5,000.00 said to be acknowledged at the time of execution, the sum of $5,000.00 was in fact not paid by the plaintiff. The failure to produce any credible evidence evincing the source of the $5,000.00 and Mr. Nand Sharma’s inability to recall relevant dates of payment are matters which cast an extremely unfavourable impression of his testimony and the plaintiff’s claim.

Third Agreement

[29] I have preferred the evidence of Mr. M. P. Singh over that heard from the plaintiff. I agree with the defendant’s counsel that his testimony was careful and restrained. Given the passage of time between the transaction(s) and the hearing of this action, Mr. Singh was careful to not say anything that he did not remember or did not believe to be true. I have found as a fact that the alleged payment of $3,000.00 was not made in his presence or as suggested by the plaintiff prior to the agreement being executed. The plaintiff stated that this sum was actually paid a week before the transaction in writing. This again conflicted with his evidence that there was an overpayment of $1,500.00 and that the other $1,500.00 was paid on that day to make up the $3,000.00.

[30] It was patently clear after hearing from the witnesses that the written agreements did not in fact record the true position of the transactions. Although the agreements purport to acknowledge payments of substantial deposits, the evidence has established that in fact not a single cent changed hands between the parties. This conclusion is inescapable on the plaintiff’s own evidence.

The two receipts, exhibits 7A and B

[31] I have upheld the defendant’s submissions in regard to these two supposed receipts for sums allegedly received by Mr. Akhil.

The acknowledgments in the three Transfers

[32] That all the Transfer documents are defective is common ground. The plaintiff attacks these Transfers as being fraudulent, whilst the defendant accepts they were defective. I agree with defence counsel that by no stretch of the imagination could it be said that the amounts were "this day paid" as stated on each of the documents. As submitted, the person who filled in the Transfer form obviously did not have regard to the realities of the true position of the transactions. I am in agreement with the submission made by the defendant that although the plaintiff had access to two lawyers, Mr. Abhay Singh and Mr. G. P. Shankar, it is significant that at no stage did he say to Mr. Akhil or the defendant, before he repudiated the agreements that he had paid all the monies, or overpaid the monies and that accounts should be drawn up and settled between the parties. Further, that all future cane payments should be assigned to the plaintiff. The allegation of overpayment was not made in the plaintiff’s 2 April 2002 letter but in the subsequent May letter. The substantial overpayment alleged was not mentioned at all in the first letter of demand. It is also of significance that if indeed the plaintiff had paid all monies due to Mr. Akhil, he would have no doubt complained about that to Mr. Shankar. But there was no evidence that such a complaint was ever made.

[33] I agree with learned counsel’s assessment of the evidence from Mrs. Searle who was the most clear and lucid witness and who spoke with obvious sincerity. I accept as having been truthfully rendered her testimony of effecting a Transfer, putting up funds for stamp duty and registration fees and visiting the plaintiff who was sick at the time to inform him of this. Her version of events is supported by Mr. M. P. Singh. The testimony of the plaintiff’s daughter-in- law, I have treated with caution given the inconsistency of the testimonies of other family members of the plaintiff who each impressed me as having been coached in what they were to say in Court.

[34] That the three Transfers which Mr. G. P. Shankar drew are defective is common ground. Mr. G. P. Shankar as solicitor for the plaintiff/Transferee had certified one of the Transfers, as correct for the purposes of the Land Transfer Act. The defendant submitted that the Transfer documents are valueless. Even the plaintiff stated that these Transfers were not genuine. Of concern is how G. P. Shankar & Co. sent a document dated 28 July 1999 for registration in 2002. This demonstrated considerable laxity on the part of G. P. Shankar & Co. It was also the mismanagement demonstrated in the convenyancing practice of the lawyers who attended to the Transfer documents which led to the delays which characterized the transactions between the parties.

[35] I agree with Mr. Ramrakha that if the plaintiff intended to convey his concerns that his convenyancing was not progressing, surely his concerns would have been conveyed to his own solicitor Mr. G. P. Shankar. Having been informed by his brother in law, Mr. Abhay Singh’s clerk that the documents prepared by Messrs G. P. Shankar were defective, it is surprising that neither Mr. Singh nor the plaintiff took any steps to address the concerns with G. P. Shankar or to have had the documents returned to him for rectification. Rather than address the so called defects with Mr. Shankar, the plaintiff chose the course of rescinding all the agreements with the claim for substantial compensation. The defendant at that point in time accepted the rescission and/or repudiation of the three agreements. I have also upheld Mr. Ramrakha’s submission that the plaintiff cannot rescind or repudiate a contract and claim to be entitled to its benefit. The plaintiff testified that he was maintaining his claim to Title for security purposes only. That proposition is misconceived. His only remedy lies in damages.

Issue 1 – Payments

[36] Having found that the plaintiff had not in fact made any payments under the agreements (aside the uncontested amount of $31,131.00 from cane proceeds), it follows that he was in breach of a material term and the purported repudiations by him were invalid. As to his claim that he is entitled to a return of the cane proceeds paid into the account of the defendant, I have also declined to uphold his claim. This aspect of his claim is founded in equity and it is trite law that he who seeks the aid of equity must come with clean hands. The plaintiff has failed to demonstrate that he is entitled to equitable relief. He participated in a scheme designed to deceive the Fiji Sugar Corporation (FSC) by purporting to be entitled to the benefit of a cane contract which was not allocated to him, not being a registered grower under the Sugar Industry Act. There was no proper assignment of the cane contract to him. Moreover, he, without any legal justification whatsoever lodged a caveat over the entire property owned by the defendant which resulted in paralyzing the defendant’s business undertakings. Such an act of bad faith in light of Mr. Akhil’s generosity in respect of the plaintiff’s requests for some of his land defies comprehension.

Issue 2 – Breaches and failure on the part of the defendant to comply with the three agreements

[37] In this respect the allegations made by the plaintiff are imprecise at best. He acknowledged that he had a survey done in relation to the 1st and 2nd Agreements. I have upheld the submission that the ease with which the surveyed land could have been transferred to him, and was in fact transferred to him in G. P. Lala’s office showed that the plaintiff could have received a clear title. Rather, he went for broke for a claim of $500,000.00 and purported to rescind the agreements. It is significant that by this time the only settlement date of 31 December 1996 referred to in Agreement 1 had long expired leaving a lacuna in respect of settlement dates for both the 1st and 2nd Agreements. The settlement date in respect of the 3rd Agreement was not until 31 March 2008. It is not in dispute that the plaintiff took no steps to secure any other settlement date in respect of all three agreements. There was no credible evidence led that the defendant was not able or willing to proceed with the transactions. Prior to the settlement date of 31 December 1996 the plaintiff had failed to complete the sub-division of the defendant’s land so as to enable the defendant to procure to separate Certificate of Title to be issued to him. It was in fact the plaintiff who was in breach of material terms of the agreements. I also find that when the plaintiff made his demands there was no existing or valid date for settlement in the 1st and 2nd Agreements as the date specified for settlement had passed prior to the plaintiff attending to completion of the survey. No effort was made by the plaintiff or his lawyers to sort out another date for settlement.

[38] The defence regarding assignment was withdrawn by the defendant in the course of the hearing. However the weak and confused attempts by the plaintiff’s witnesses to prove that a valid and legal assignment was in place goes to the credibility of the whole foundation of the plaintiff’s claim. None of the witnesses showed any understanding of what was purportedly assigned or the nature of the document each testified they had signed.

[39] The plaintiff has failed to establish any of the allegations of breaches pleaded.

Issue 3 – Notices to complete and making time of the essence

[40] As submitted, a non-defaulting party in order to bring matters to a head in respect of a contract for sale of land must issue a Notice to Complete giving appropriate time (having regard to the circumstances then existing) to perform and complete the contract on the part of the other party[3]. Such a notice puts the other party to perform the contract and makes time of the essence. In this case no such notice(s) was given. Moreover, the plaintiff was not a "non-defaulting" party. He was clearly in breach of his own obligations.

Issue 4 – Was plaintiff entitled to rescind the 1st and 2nd Agreements?

[41] The settlement date was 31 December 1996. The evidence has established that the survey plan prepared by Mr. Manilal Patel was not approved until 31 March 1998. The copy of the survey plan contradicts the allegations made by the plaintiff at paragraph 13 of his claim. Moreover it shows that the plaintiff could not have been "ready willing and able" to settle by 31 December 1996. Mr. Patel testified that he did not attend to the survey until April 1997, two years after he had been instructed to conduct a survey. No such settlement could or did take place by 31 December 1996. There was no other date "mutually agreed in writing" between the parties. The plaintiff was therefore in breach of his obligations to arrange another settlement date. He was also a defaulting party in having failed to pay the full purchase price. He also defaulted in his obligation to complete the necessary survey concerns before the settlement date. I have upheld the submission that in the circumstances he was not entitled in law to rescind the 1st and 2nd Agreements.

Issue 5 – The Cane Proceeds

[42] The plaintiff’s claims for these funds is tainted by illegality – refer paragraph 36 above. I have declined to aid the unlawful scheme by making an order that he be reimbursed monies paid by the Fiji Sugar Corporation under cane contract number 92 which was held by Akhil Projects Ltd. at the time. Of note is the evidence from the Accounts Clerk of FSC who testified that from 1997, FSC directed funds payable under the contract to the defendant’s account, lending weight to and substantiating the defendants claim that the plaintiff in contravention of the expressed terms of the 1st Agreement took possession of the subject property notwithstanding that he was not entitled to possession until settlement. That was the arrangement between him and Mr. Akhil and which was again not reflected in the agreement signed by them.

Issue 6 – Terms of the 3rd Agreement

[43] The plaintiff was not entitled to rescind on the ground he relied on, given the express settlement date of 31 March 2008. I have upheld Mr. Ramrakha’s submission that the plaintiff is left in the hapless position where he cannot cite any date of settlement which had been ignored by the defendant.

Issue 7 – the three Transfers prepared by G. P. Shankar & Co.

[44] These transfers are defective. The 20 acre transfer document is defective in that the Title details contravene the terms of the 1st Agreement. It relates to the 1st and 2nd Agreements and the area described in the document is incorrect. In regard to the Transfer for 3 acres, the Title reference is also incorrect. It should have read CT 16280 Lot 1 on DP 8041. The Transfer could not have been for 3 acres as there was never a survey conducted over 3 acres of land. The document is also undated. In respect of the Transfer for 10 acres the Title reference CT 29593 was wrong in that it refers to other land owned by the defendant which was not the subject of the agreement. This land was also never surveyed and the document is undated. None of the documents were in registrable form. The documents also do not support the plaintiff’s allegations of fraud which I will deal with under Issue 11.

Issue 8 – The G. P. Lala Transfer

[45] This Transfer to the plaintiff was made after issuance of these proceedings. Despite the defendant conveying to the plaintiff the surveyed land, the plaintiff rejected the Transfer and seeks instead monetary damages. This transfer demonstrates the extent that Mrs. Searle went to, to facilitate the conveyance of the property to the plaintiff, in good faith, notwithstanding the plaintiff’s failure to perform his part of the dealing. There is no claim for a specific performance. In my view it is just an equitable that the plaintiff be ordered to re-convey this Title to the defendant.

Issue 9 – Have the Allegations of Fraud been established?

[46] The onus of proving fraud rests with the party alleging it. The onus of proof, whilst still on the balance of probabilities, requires ‘a higher degree of probability’.[4] Motive is never enough. A circumstantial case must be more than mere conjecture or surmise.[5] The evidence must be clear and convincing and not of ‘inexact proofs, indefinite testimony and indirect inferences’.[6] There must be something in the nature of moral turpitude and personal dishonesty.[7] I am constrained to say that I am in agreement with Mr. Ramrakha that the plaintiff has proceeded on an imperfect understanding of what fraud is and what was required to be established. Stating the purchase price at $71,212.00 when it should have been $69,000.00 is not fraud. What is alleged as fraud is what a lawyer did. I uphold the submission given the lack of any credible evidence to the contrary, the defendant’s officers Mrs. Searle and Mr. Akhil had no input into any of the matters complained of. The plaintiff has completely failed to establish the heavy onus on him of proving the allegations of fraud pleaded.

Damages

[47] Part of the plaintiff’s claim for damages is based on an Agreement dated 15 September 1999 which he made with a third party, one Salendra Kumar, f/n Ram Subhag (Mr. Kumar) wherein he agreed to sell "the property being Lot 1 DP 4278 on CT 16280" for the sum of $300,000.00. The settlement date in this Agreement was 30 August 2000. The Agreement was purportedly varied by a further agreement dated 10 February 2000 where the description of the property to be sold was "23 acres from CT 16280 on Lot 1 DP 4278 and further 10 acres within two years thereafter". The plaintiff undertook to provide a clear title in respect of the 23 acres by the revised settlement date of 8 March 2002 and the 10 acre parcel "within" two year [sic] thereafter". The initial agreement would have been unenforceable because the plaintiff purported to sell all the land contained in Lot 1 DP 4278 on CT 16280 which he clearly did not own. The defendant is not liable for any damages which may relate to that agreement.

[48] In regard to the later agreement, I have upheld the defence submission that it is nothing more than evidence of a sham. By the time he purported to sell his "interest" in the property, the settlement date of the 1st and 2nd agreements with the defendant had long expired. Of significance was the plaintiff’s discovery of this document as late as 29 July 2006. Further, that at no stage was the defendant put on notice of these agreements. It is apparent from the agreements that performance was dependant on Mr. Kumar obtaining a spring water source and there was no evidence led whatsoever if Mr. Kumar’s requirements were satisfied. What the plaintiff had promised in any event was beyond agreements 1, 2 and 3. Moreover as submitted by the defendant, if the plaintiff claims that this agreement is valid and binding on him, there is no evidence to show that it was rescinded, which was essential to restore "ownership" in the plaintiff. The plaintiff would then be left with the inconvenient situation where he is no longer the owner of the property having disposed of it to Shalendra Kumar.

[49] The claim for special damages contained in paragraph 46 of the plaintiff’s claim has not been proved. Such damages are required to be strictly proved. The production of a quotation for borehole with submersible pump in the sum of $1,800.00 and a letter from Marine Drive Motor Services Limited to the plaintiff dated 10 February 2004 for repairs to motor vehicles in the sum of $10,801.00 does not suffice adequate proof for the claim of special damages of $85,941.39. The claim for special damages was $514,324.39. Subtracting from this amount the sums of $300,000.00 and $128,383.00 being the alleged purchase price paid, one is left with the claim of $85,941.39. The plaintiff completely failed to produce the requisite evidence to prove this aspect of his claim. I am left with the distinct impression that all this claim represents is a blatant attempt to extort monies from the defendant by making fictitious and exaggerated claims when the plaintiff and his legal advisors would have been well aware from the outset that he stood no chance of proving his claims once the case was heard. All this exaggerated claim for special damages has succeeded in doing is fortify my conclusion that the plaintiff embarked upon an elaborate scheme using the litigation process to procure a substantial financial benefit from the defendant when it became apparent to him that the most valuable portion of the defendant’s property containing the spring water sources was excluded from the agreements between him and the defendant.

Conclusion

[50] The plaintiff has failed to prove breach of the agreements as pleaded. The evidence has established that at no stage did the defendant or its officers deny title to the plaintiff or refuse to carry out its part of the bargain in respect of the agreements. The defendant did all it was required to do to honor its part of the agreements. Having failed to establish breach, the plaintiff is not entitled to damages. I also consider the plaintiff’s claim as an abuse of the Court process having been brought for the collateral purpose of coercing the defendant to pay him monies he was clearly not entitled to rather than to enforce any rights he had under the agreements. In the circumstances the defendant is entitled to an order of costs in its favor on an indemnity basis.

Orders

(i) The plaintiff’s action is dismissed.

(ii) It is ordered that the plaintiff pay to the defendant the costs of and incidental to the entire action to be taxed on the full indemnity basis.

(iii) The plaintiff is also ordered to re-convey the property comprised in Certificate of Title 34778 being Lot 1 on DP 8041 by executing a Transfer in favor of the defendant within 14 days.

Gwen Phillips
Judge

At Lautoka
9 May 2008

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^[1] [1969] F.L.R Vol. 15, 29 at pages 33 and 37
^[2] [1956] N.Z.L.R 690 at p.694
^[3] See Louinder v Leis (1982) C L R 509
^[4] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 C L R 336 cited in Jennyne Gonzalez v Mohammed Aktar & Ors, (Civil Action No.
HBC 073/92l)
^[5] Richard Evans & Co v Ashley [1911] UKLawRpAC 47; (1911) AC 674 at p687
^[6] Ibid Briginshaw at p361
^[7] Assetts Co. Ltd v Mere Roti [1905] UKLawRpAC 11; (1905) AC 176 at p210