Prakash v ANZ Banking Corporation Ltd [2011] FJHC 119; HBC242.2010 (25 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 242 of 2010

BETWEEN:

AMRIT PRAKASH (f/n) Ram Bhagat) of Rarawai, Ba.
1ST PLAINTIFF

AND:

ANIL PRAKASH (f/n Ram Bhagat) of Rarawai, Ba, Labourer.
2ND PLAINTIFF

AND:

ANZ BANKING CORPORATION LTD having its head office at Victoria Parade, Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: NACOLAWA & DAVETA for the Plaintiff
LATEEF & LATEEF for the Defendant

Date of Hearing: 4th February, 2011
Date of Ruling: 25th February, 2011

RULING

1. Introduction
   

1. The writ of summons was filed by the 1st and 2nd Plaintiff against the ANZ Bank (the Defendant) for causes of actions stated in the statement of claim.
   
2. This is an application by the Defendant to strike out the causes of actions that are time barred in pursuant to the provisions of Limitations Act and Order 18 rule 18 of the High Court Rules.
   

2. FACTS
   

3. 1st and 2nd Plaintiff's have filed this action by way of writ of summons on 11th August, 2010.
   
4. The Defendant has filed the acknowledgement of service on 25th August,2010 and summons for strike out was filed on 27th of October, 2010 an affidavit in support of the Nemani Daralimaki was also filed, which stated inter alia
   
   1. The cause of action pleaded in paragraphs 4 to 13 (a) to (i) inclusive allegedly arose between the period 1995 to 1997.
      
   2. That cause of action pleaded in paragraphs 14 to 44 allegedly arose between the periods 1997 to 2000.
      
   3. That cause of action pleaded in paragraphs 49 to 67 allegedly arose on or about 2001.
      
   4. That cause of action pleaded in paragraphs 120 to 122 includes that which allegedly arose on or about the period 1998,1999,2000,2001,2001,2002,2003 and 2004.
      
   5. Similarly paragraphs 127 to 130 includes cause of action which allegedly arose on or about the period 1999,2000,2001,2002,2003,and 2004.
      
   6. The above causes of actions are statute barred.
      
   7. The Defendants are prejudiced as they do not keep records of the transactions for 13 years.
      
   8. The Defendant cannot file a statement of defence in the present form with matters that overlap the statute barred
      
5. The Plaintiffs filed an affidavit in reply on 15th December, 2010 and it did not annex any documents to that affidavit, but stated that they had requested the Defendant to rectify the errors of the Defendant.
   
6. Neither party filled written submissions but, both parties made oral submissions.
   

100. LAW AND ANALYSIS
     

7. The present strike out application is made in pursuant to the Order 18 rule 18 of the High Court Rules. The Defendant state that it cannot file a statement of defence to the present statement of claim as it contained time barred events which they seek to strike out. Defendant also state that they do not possess records for 13 years and could not reply to time barred events.
   
8. The main contention for the Defendant to seek strike out is that the statement of claim contain causes of actions that are time barred in terms of the Limitation Act.
   

9. The Section 4 of the Limitation Act reads as follows:

4.-(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

(a) actions founded on simple contract or on tort;

(b) actions to enforce a recognizance;

(c) actions to enforce an award, where the submission is not by an instrument under seal;

(d) actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture:

Provided that-

(i) in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; and

(ii) nothing in this subsection shall be taken to refer to any action to which section 6 applies.

(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.

(3) An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued:

Provided that this subsection shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act.

(4) An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.

(5) An action to recover any penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of any Act or imperial enactment shall not be brought after the expiration of two years from the date on which the cause of action accrued:

Provided that for the purposes of this subsection the expression "penalty" shall not include a fine to which any person is liable on conviction of a criminal offence.

(6) Subsection (1) shall apply to an action to recover seamen's wages, but save as aforesaid this section shall not apply to any cause of action within the Admiralty jurisdiction of the Supreme Court which is enforceable in rem.

(7) This section shall not apply to any claim for specific performance of a contract or for any injunction or for other equitable relief, except in so far as any provision thereof may be applied by the court by analogy in like manner as has, prior to the commencement of this Act, been applied.

10. The exception to the rule is found in the Section 15 of the Limitation Act which deals with fraud or mistake.

11. 15. Where, in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or

(b) the right of action is concealed by the fraud of any such person; or

(c) the action is for relief from the consequences of a mistake,

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:

Provided that nothing in this section shall enable any action to be brought to recover, or enforce any charge against or set aside any transaction affecting, any property which-

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or

(ii) in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made, by a person who did not know or have reason to believe that the mistake had been made (emphasis is added)

12. It is clear that the mistake that Section 15 speaks is a common mistake made by both parties as for an example a mistake of fact which one party realizes lately. It is evident that every alleged mistake by a defendant cannot be resorted to Section 15 of the Limitation Act. This is clear from the words "the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake". So the mistake has to be a common mistake.

13. In this action Plaintiffs have neither pleaded fraud nor pleaded mistake on the part for the Defendant. Further it has not indicated that they have repeatedly written and verbally requested the Defendant to correct the errors. Since the Plaintiffs have failed to give any date of discovery of such errors of the Defendants the court has to presume the date of the discovery as the date of the bank statement. If the discovery was later than that it would have brought to the notice of the court when they filed the affidavit in opposition. So, it is clear that the Plaintiff cannot resort to the exception contained in the Section 15 of the Limitation Act.

14. Pargraphs 4 to 13(a) of the Statement of Claim

It is to be noted that Plaintiff states that their claim is covered in the exception to the normal rule that is contained in the Section 15 of the Limitation Act. The argument put forward by the counsel for the Plaintiffs was that the double charge for the interest in their bank statement in 31st December, 1997 was a mistake by the Bank and because of that it falls in to the exception contained in Section 15 of the Limitation Act. This is not correct and if that kind of interpretation is attached most of the time barred causes of action will be filed on the premise that those alleged cause of action due to a mistake of the Defendant.

The cause of action contained in the above paragraphs are laid down in paragraph 9 where it state an interest of $165.65 and 151.65 was charged for the month ending 31st December, 1997. The Plaintiff further state that they informed the Defendant to correct it in writing, but failed to provide any copy of such request. It is a known fact that bank statements are sent periodically and any discrepancy has to be brought to the notice of the bank immediately on the receipt of the statement. Statement of the claim does not indicate a date of receipt of such statement and when they discovered the double charge of interest. The bank's position is they do not keep records for over 13 years as law does not require them to keep records for such a long time and also considering the nature of their documentary evidence in all the transactions it is not a pragmatic thing to keep records fro a such a long time. In any event the alleged cause of action has arisen in 1997 and cause of action is time barred

15. The said cause of action contained in paragraphs 4 to 13 (a) to (i) is clearly time barred on the above analysis and should be struck out from the statement of claim

16. That cause of action pleaded in paragraphs 14 to 44

The part of the alleged cause of action is not regarding the Defendant, but the main cause of action alleged is contained in paragraph 28 and 29 and again it refers to an incident where Home Finance and Young & Associate were involved and the alleged cause of action against the Defendant has occurred in the year 2000, or before, and it is also clearly time time barred. So the claims contained in para 14-44 is struck out.

17. That cause of action pleaded in paragraphs 49 to 67

This again refers to an alleged act of negligence on the part of the Defendant for an act and or omission done in April, 2001 which again is clearly time barred for an action filed in 2010. So the claims contained in paragraphs 49-67 is struck out.

18. Cause of action pleaded in paragraphs 120 to 122

The paragraph 122 lays down the higher interest rates that were charged for years 1998 to 2009 which the total of 35,015.10 is calculated. Again the claim has to be confined to non statute barred amounts and has to be confined to past six years form the date of filing of this writ, as other claims are statute barred. The time barred claims are struck out.

19. Paragraphs 127 to 130

Again the paragraph 127 deals with a time period of 1999 to 2009 a part of which is clearly time barred and has to be confined only upto 6 years from the date of filing of this writ action. The same rule has to apply to claims stated in paragraph 128 of the statement of the claim as well as it covers a time period of 2003 to 2009 in the present form. So the claims contained in paragraph 127-130 which time barred, are struck off.

4. CONCLUSION
   

20. The claims contained in the above paragraphs 120 to 122 and 127 to 130 has to be reframed as they need to be struck out completely in its present form. Plaintiffs are directed to reframe and not to include time barred statements of claims. The Plaintiffs are granted 21days to file and serve an amended statement of claim. The paragraphs 4 to 13(a); 13(b); 13(c); 13(d); 13(e); 13(f); 13(g); 13(h); 13(i); 14 to 44, 49 to 67, 120 to 122, 127 to 130 are struck out completely.
21. The cost of this application is $500 assessed summarily and to be paid within 21 days.

Dated at Suva this 25th day of February, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva