NBF Asset Management Bank v Krishna [2011] FJHC 145; HBC 0129.1999 (7 March 2011)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA

HBC No. 0129 of 1999

BETWEEN:

NBF ASSET MANAGEMENT BANK
a body corporate duly constituted under the National Bank of Fiji Restructuring Act 1996 and having its registered office at Suva.
Plaintiff

AND:

PRAVIN RAJ KRISHNA
(father's name Bal Krishna) of Home Finance, Lautoka.
Defendant

Before: Master Anare Tuilevuka
Solicitors: S.B Patel & Co. for the Plaintiff
Sahu Khan & Sahu Khan for the Defendant

Date of Ruling: 07th March 2011.

RULING

[1]. Before me is an application to reinstate the action by the plaintiff following a striking out on 7th November 2007 by Master Udit under Order 25 Rule 9 of the High Court Rules. On 16th April 1999, the plaintiff filed a writ of summons and statement of claim against the defendant in the nature of a debt recovery action. The plaintiff alleges that the defendant is indebted to it in the sum of $114,680.72 as at 28th of April 1998 together with interest accruing at 16% per annum. Acknowledgement of Service was filed by Sahu Khan & Sahu Khan on 24th April 1999 and the statement of defence and counter claim were filed on 14th June 1999. Thereafter, nothing happened in this file until 18th October 2004 when Messrs SB Patel & Company filed a Notice of Appointment of Solicitors. On 22nd October 2004, SB Patel & Company filed a Notice of Intention to Proceed under Order 3 Rule 5 of the High Court Rules. The file records will show that this case was first called in Court on Thursday 28th April 2005 before Finnigan J.

[2]. A "K Kumar" is on record to have appeared for the plaintiff before Finnigan J (I presume that is a reference to Mr. Kamal Kumar of Young & Associates). There was no appearance for the defendant. There is nothing on record to indicate that a Notice was ever sent to Sahu Khan & Sahu Khan to inform them of the date – though a Notice was sent to SB Patel & Company.

[3]. I note that Finnigan J did strike out the counter-claim on that very first call in court, and then adjourned the plaintiff's case for formal proof. The case was in fact formally proved on 01st June 2005 and a written judgement of Finnigan J was delivered on the same day in the sum of $114,680.72 in favour of the plaintiff plus 12% interest from the date of filing of writ to date of payment with costs summarily assessed at $1,000-00.

[4]. On 18th of August 2006, Sahu Khan & Sahu Khan filed a Notice of Motion seeking abridgment of time to set aside the judgement and to reinstate their client's statement of defence and counter-claim.

[5]. By consent, judgement was set aside and the defendant's defence and counter-claim were reinstated on 11th September 2006. The plaintiff then filed a reply to defence and defence to counter-claim on 23rd January 2007 and Summons for Directions filed on 01st February 2007. Orders in Terms of Summons for Directions were sealed on 05th March 2007. On 13th March 2007, the plaintiff filed its list of documents and on 25th April 2007, the defendant filed his.

[6]. Thereafter, nothing happened on this matter until the 04th of October 2007 when Master Udit sent an Order 25 Rule 9 Notice to the plaintiff to show cause why the action should not be struck out for want of prosecution. The returnable date of the notice was 7th November 2007. That was the day when Master Udit struck out the action for want of prosecution.

[7]. On 13th December 2007, SB Patel & Co. filed a Summons to Reinstate Action returnable 14th February 2008. Thereafter – the case was called some sixteen times before Master Udit from 14th February 2008 to 12th March 2009. During that time, no affidavit in opposition to reinstatement was filed, nor did Master Udit make a ruling on the application. He was in fact adjourning the case because there was some talk of settlement happening between the parties. When the case was first called before me on 16th September 2009, I recorded that a Terms of Settlement had been circulated between the parties for which Mr. Patel needed the plaintiff's confirmation. Thereafter, the case was called before me some 15 times from 08th October 2009 to 25th August 2010. During this time, Mr. Patel was advising the court that the matter had been settled. Dr. Sahu Khan was denying that the matter had been settled. Notably, on 25th May 2010, nearly three years after the application for reinstatement, Sahu Khan & Sahu Khan filed an Affidavit opposing reinstatement. It appears that Mr. Patel had been under the misapprehension that his client had settled the matter with Dr. Sahu Khan's client. But there is no such record of it on file.

[8]. As stated, this is a debt recovery claim. I am mindful of the substantial amount involved. The claim obviously has merit and I am also mindful of the oft cited passage of Bowen LJ's in Cropper v Smith [1884] UKLawRpCh 91; (1884) 26 Ch. D. 700 at p. 710:

"..... I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, ........."

[9]. In Yenktamma v Colonial Mutual Life Assurance Services Ltd [2011] FJHC 57; HBC 348.2008 (9 February 2011) - Wickramasinghe J dealt with a motion for reinstatement of a matter that had been struck out by Master Udit also under Order 25 Rule 9. Wickramasinghe J first noted that – under Order 59 Rules 8 and 11 – an appeal is "the only remedy available to a party who is aggrieved by a decision of striking out by the Master". Having noted that, and having concluded that the notice of motion for reinstatement before her was therefore irregular – she then overlooked that irregularity under Order 2 of the High Court Rules and proceeded to consider the application along the principles of reinstatement. In taking that course, Wickramasinghe J had taken into account the fact that the plaintiff was acting and appearing in person. She however refused to reinstate the action after considering the application along the ordinary principles for reinstatement.

[10]. Applying the above, the striking out order under Order 25 Rule 9 of Master Udit cannot be set aside in this court. It should have been appealed. Since the plaintiff is well out of time in seeking leave to appeal - it should be filing an application seeking leave to appeal out of time under Order 59 Rules 8, 9, 10 and 11. The plaintiff may argue that it is also entitled to the same treatment in Yenktamma v Colonial Mutual Life. And while I do not have jurisdiction to entertain that argument – I think it would only be fair if I was to make a case reference under Order 59 Rule 4 to a High Court judge to consider this issue.

[11]. The Deputy Registrar is to issue a Notice of Adjourned Hearing before a judge on the above point. Costs to be considered then.

Anare Tuilevuka
Master

At Lautoka
07th March 2011.