Kumar v Sharma [2010] FJHC 45; HBC228.2009L (15 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 228 of 2009L

BETWEEN:

SURENDRA KUMAR
Plaintiff

AND:

KAMAL PRAKASH SHARMA
1st Defendant

AND:

BIMLA WATI
2nd Defendant

AND:

THE REGISTRAR OF TITLES
3rd Defendant

FINAL JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr R Singh for the Plaintiff
No appearance for the First, Second and Third Defendants

Solicitors: Messrs Patel & Sharma for the Plaintiff
First and Second Defendant unrepresented

Date of Hearing: 15 February 2010
Date of Judgment: 15 February 2010

INTRODUCTION

[1] These are the reasons for the Orders that I made today on the Plaintiff’s application by Originating Summons for satisfaction of his Judgment against the First and Second Defendants.

CASE BACKGROUND

[2] The Plaintiff applied by Originating Summons filed on 15 January 2010 supported by his affidavit. The First and Second Defendants appeared by Counsel in the initial stages of the action represented by the firm of solicitors M C Lawyers of Suva. The Originating Summons, so far as relevant to the current application before me sough the following orders:

1. That the land being Crown Lease Number 13770, being Lot 9 on SO 3507 known as Waqadra (pt of) containing an area of 601 sqm and in respect of which judgment has been registered on the 17th day of September 2009 be sold by means of appropriate advertisement in a local daily.

2. That all monies received from the sale of the Crown Lease 133770... be applied to the reduction of the Judgment Sum in favour of the Plaintiff, costs on a solicitor client indemnity basis and debt held against the land in favour of Australia New Zealand Banking Corporation and the balance be paid out to the Defendants.

[3] On 16 February 2009, Datt J made the following orders (the "Consent Order"):

IT IS HEREBY ORDERED BY CONSENT

1. THAT the 1st and 2nd Defendants top pay the 1st Plaintiff $215,000 (Two hundred and fifteen thousand dollars) by 30th April 2009.

2. THAT the 1stPlaintiff to relinquish all his interest in the 3rd Plaintiff company namely South Pacific Rentals Limited.

3. THAT this settlement is subject to finance.

4. THAT the parties to enter into a written comprehensive terms of settlement for lodgement in Court.

[4] Following the Consent Order, the parties, through their solicitors, entered into negotiations which resulted in the solicitors for the First and Second Defendants sending a letter dated 8 December 2009 to the Plaintiff’s solicitors "reiterat(ing) that the minimum sale price of the land shall be no less than $355,000 and they reserve the right to accept the final offer for sale".

[5] The First and Second Defendants reside overseas. Their solicitors eventually withdrew for want of instructions so on the Plaintiff’s ex-parte application, the Master, on 21 December 2009, granted leave for the Plaintiff to serve all papers in this action on the Defendants previous solicitors, M C Lawyers. The matter was adjourned to 22 January 2010 for mention.

[6] The Court papers were sent by courier on 18 December 2009 and received by M C Lawyers on 21 December 2009 according to the affidavit of service filed on 26 January 2010. The solicitors were also advised under cover of a letter that the matter was to be called on 21 December 2009. No one appeared for the Defendants on 21 December 2009. The matter was further adjourned to 22 January 2010 for mention. The Plaintiff’s solicitors wrote to the M C Lawyers on 14 January 2010 advising them of the new date, but again, no one appeared for the Defendants when the matter was called before the Master on 22 January 2010. The Master further adjourned it to 27 January 2010 for hearing of the Originating Summons. The Master commenced to hear the application but had some doubts about his jurisdiction so he adjourned the application to me and I heard it on that day.

CONSIDERATION OF THE APPLICATION

[7] I had some doubts as to whether I could grant the relief sought because of the "subject to finance" part of the Consent Order and Mr Singh asked for more time to make submissions on the point which I granted and adjourned the hearing to 15 February 2010 for continuation.

[8] This application is essentially for orders varying the Consent Order. It seems to me very clear that the parties have agreed that the land is to be sold by public tender and the minimum price was to be not less than $355,000.

[9] I also think the Defendants did reserve to them the right to decide on the successful tender so long as it was above this reserve price. So as not to leave the decision open ended as to time I think a time limit should be set for them to decide and if they do not do so then the Plaintiff shall decide which tender to accept. Mr Singh asked for the time to be set at 21 days which I think is reasonable and sufficient time for the Defendants to be advised, decide and respond.

COSTS

[10] I make no order as to the costs of this application as they will be part of the costs of the whole action which is to be satisfied out of the sale proceeds.

ORDERS

[11] The Orders are therefore as follows:

1. Paragraph 1 of the Originating Summons filed on 15 January 2010 is granted subject to adding the words "for not less than $355,000" at the end.
   
2. Any such sale shall be subject to the acceptance of the successful tender by the First and Second Defendants within 21 days of the tenders being closed and the Defendants being notified.
   
3. If the Defendants do not decide on the successful tenderer and notify the Plaintiff’s solicitors within those 21 days then the Plaintiff shall decide who the successful tenderer should be.
   
4. Paragraph 2 of the said Originating Summons is granted.
   

Sosefo Inoke
Judge