National Bank of Fiji Ltd v Prasad [2011] FJHC 614; HBC285.2009 (3 October 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 285 of 2009

BETWEEN :

NATIONAL BANK OF FIJI LIMITED
trading as COLONIAL NATIONAL BANK
a body corporate duly constituted under the Companies Act Cap 247 of Level 10,
Suva Central Building, CNR. Off Renwick and Pratt Street, Suva, Fiji.
PLAINTIFF

AND:

NAVIN PRASAD
(f/n Kewal Prasad) of Flat 6, 10 Vunivalu Road,
Toorak, Fiji, Businessman.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSELS : Mr. P.Sharma of R. Patel Lawyers for the Plaintiff

The Defendant In Person.

Date of Hearing: 24th August, 2011

Date of Ruling: 3rd October, 2011

RULING

1. INTRODUCTION
   

1. The Plaintiff has filed the summons to enter summary judgment against the Defendant. The claim of the Plaintiff is for a sum of $ 124,382.64 and for interest of 9.25 % annual interest from the 31st May, 2008 and no documentary evidence of that alleged remaining debt is submitted. The Plaintiff admitted that loans were given to him by the Plaintiff and also admitted default. He specifically denies the stated amount in the claim and puts the Plaintiff to strict proof of the amount. He also alleges some personal difficulties due to a family dispute with the estranged spouse, which has resulted in divorce and alleges the provisions contained in Section 66 of the Consumer Credit Act was not followed by the Plaintiff
   

2. FACTS
   

2. The Plaintiff has filed this action for recovery of money allegedly due to default of three loans granted to the Defendant.
   
3. The Defendant has filed a statement of defence on 14th October, 2009 and the Plaintiff has filed this application for summary judgment on 31st August, 2010 and parties have filed their respective affidavits and also submissions.
   
4. The parties admit that the Plaintiff had been granted three loans at different dates, amounting $420,000 at 9.5% per annum interest rate, to the Defendant as stated in the paragraph 3 of the statement of claim.
   
5. The Defendant has also admitted in his statement of defence, the two securities that were submitted to the Plaintiff for the said loans and the mortgagee sale of the said properties upon default and recovery of money by the Plaintiff as stated in paragraphs 5 and 6 of the statement of claim.
   
6. The Defendant in his statement of defence, denies that the outstanding debt as at 31st May, 2009 was $124,382.64 and puts the Plaintiff to the strict proof and no materials were submitted either with the affidavit in support of this application or even with the affidavit in reply to the affidavit in opposition filed by the Defendant justifying the claim of $ 124,382.64.
   
7. The Defendant also state that the Plaintiff did not comply with the Section 66 of the Consumer Credit Act, since he was in financial difficulty due to a personal difficulty due to a estranged spouse and he had also informed this difficulty to the Plaintiff.
   

100. Law
     

8. The law relating to summary judgment is contained in Order 14 of the High Court Rules of 1988 and it states as follows
   

'1(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no deface to a claim included in the writ, or to a particular part of such a claim, or has no deface to such a acclaim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

(2).....

(3).....

2(1) An application under rule 1 must be made by summons supported by an affidavit verifying the facts on which the claim or the part of a claim to which the application relates is based and stating that in the deponent's belief there is not defence to that claim or part, as the case may be or no defence except as to the amount of any damages claimed.

(2) Unless the Court otherwise directs, an affidavit for the purposes of this rule may contain statements of information or belief with the sources and grounds thereof.

(3) The summons, a copy of the affidavit in support and of any exhibits referred to therein must be served on the defendant not less than 10 clear days before the return day.

3(1) Unless on the hearing of an application under rule 1, either the Court dismisses the application or the defendant satisfies the Court with respect to the claim, or the part of a claim, to which the application relates that there is an issue or question in dispute which out to be tried or that there ought for some other reason to be a trial of that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part, the Court may give such judgment for the plaintiff against that defendant on that claim or part as may be just having regard to the nature of the remedy or relief claimed.

(2) The Court may be order, and subject to such conditions, if any as may be just stay execution of any judgment given against a defendant under this rule a until after that trial of any counterclaim made or raised by the defendant in the action.

9. It is a preliminary requirement that the Plaintiff has to file the application for summary judgment, supported by an affidavit verifying the facts on which the claim or the part of a claim to which the application relates and the claim in this action is clearly the remaining debt of the Defendant after the mortgagee sale of the securities and money recovered from the said sale.
   
10. The Plaintiff has not adduced any documentary evidence to support its claim for $ 124,382.64. The only evidence is a mere statement of the affidavit in support of Vandana Narayan which state as follows
    

'That as at 31 May, 2009 the Plaintiff's loan amount stood at $124,382.64 with interest continuing to accrue on the said amount at the rate of 9.5% per annum.'

11. No documentary evidence of the outstanding amounts in loans, except the demand notice marked VN9 to the said affidavit of Vandana Narayan is produced and the amount stated in the said demand notice dated 20th October, 2008 is understandably, not the amount claimed in the statement of claim. It is to be noted that the said default notice is only regarding 'Home Loan Agreement dated 2nd June, 2004, Account Number 4310917 and the amount indicted on the said demand notice was an outstanding amount as at 20th October, 2008.
    

According to said letter Account Number 4310917 was overdue by $117,282.11 and this evidence does not prove the outstanding debt for all three loan accounts and the amount stated in the claim has not been calculated and proved as alleged by the Plaintiff. There is not even a demand notice by the lawyers to the amount stated in the claim and no materials were produced to prove the amount claimed.

12. In the case of FDB v Michael Desond Benefield Civil Action No 123 of 1995 Justice M.D.Scott held that without any evidence of calculation of the amount claimed the summary judgment application should be dismissed. It was held in that judgment
    

"The power to grant summary judgment is "intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to Judgment and were therefore it is inexpedient to allow a Defendant to defend for the purpose of delay"( Jones v Stone [1894] UKLawRpAC 2; [1894] AC 122). Where the subject matter of the action is a claim of indebtedness then a mere general denial will not suffice and the grounds on which a Defendant denies indebtedness must be revealed. (Walligfor v Mutual Society (1880) App. Cas. 685).

If the Defendant's Defence simply denying the debt were all that was before me (even if accompanied by a verifying affidavit) then the Defendant would not be entitled to defend. The inconsistencies between the affidavits and the Defence are certainly stern but mere implausibility or inconsistency is not a ground for granting summary judgment. (Paclantic Financing Co. Inc v Moscow Narodny Bank Ltd. [1983] 1 WLR 106) and leave to defend should ordinarily be given where there is a reasonable ground for an enquiry or account to ascertain the precise amount owed (Contract Discount Corp. Ltd v. Furlong [1948] 1 All ER 274). "

13. It is clear that a mere demand notice is not sufficient under the circumstances of this case and even the said demand notice do not relate to all the debts as alleged in the statement of claim and only relate to one account number and the amount stated in the said demand notice is not the same as the claim.
    
14. In the said case FDB v Michael Desond Benefield Civil Action No 123 of 1995 Justice M.D.Scott further held
    

'.... No copies of any bank books have been revealed at all in the affidavits and no copies of bank statements or other documents were apparently attached to the requests for repayments. The copy mortgage exhibited to the Bank's first affidavit are evidence of securities taken but not of advance made. No calculation justifying almost $16,000 of interest claimed has been disclosed.'

15. This clearly demonstrate the necessity to provide documentary proof of the claim namely the alleged debt after the mortgagee sales were completed and moneys were recovered, as the Defendant has already admitted the receipt of the loans and has also admitted the Default of them. No bank statements were produced as evidence annexed to the affidavit in support.
    
16. Carpenters Fiji Ltd v Joes Farm Produce Ltd [2006] FJCA 60; ABU0019U.2006S (10 November 2006) the Court of Appeal of Fiji quoted the White Book of 1999 and stated in the paragraph [22] as follows
    

"Summary Judgment Principles

[21] Here it is timely to state some of the well established principles relating to the entry of summary judgment:

(a) The purpose of 0.14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up, a bona fide defence or raise an issue against the claim which ought to be tried.

(b) The defendant may show cause against a plaintiff's claim on the merits e.g. that he has a good defence to the claim on the merits or there is a dispute as to the facts which ought to be tried or there is a difficult point of law involved.

(c) It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiff's claim and affidavit and states clearly and precisely what the defence is and what facts are relied on to support it.

(d) Set off, which is a monetary cross claim for a debt due from the plaintiff, is a defence. A defendant is entitled to unconditional leave to defend up to the amount of the set off claimed. If there is a set off at all, each claim goes against the other and either extinguishes or reduces it Hanak v. Green (1958) 2 QB 9 at page 29 per Sellers LJ.

(e) Likewise where a defendant sets up a bona fide counter claim arising out of the same subject matter of the action, and connected with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counter claim but should be for unconditional leave to defend, even if the defendant admits whole or part of the claim. Morgan and Son Ltd v. S. Martin Johnson Co (1949) 1 KB 107(CA).

See 1991 The Supreme Practice Vol 1 especially at pages 146,147,152 and 322."
(emphasis is mine)

17. So, it is pertinent to note that even in an action for recovery of debt to a financial institute a mere statement of the sum as the debt owe to them is not sufficient proof as required in the provisions contained in Order 14 rule 2(1) and the burden of proving the claim clearly rests fairly and squarely on the Plaintiff and the Plaintiff in this action has failed to do so.
    
18. In the case of Dominion Finance Limited V Sddio Faizal Koya Civil Action No HBC 193 of 2009 decided on 20th August, 2010 which was relied by the Plaintiff, Master Anare at paragraph 14 stated as follows
    

'The Plaintiff must prove each claim clearly and to satisfy the Court that the defendant has no defence which has any realistic prospect of success. Once the Plaintiff establishes his or her claim, the evidential and persuasive burden then shifts to the defendant who must adduce affidavit evidence dealing specifically with the plaintiffs claim and also stating clearly what the defence is and what facts he or she relies on to resist the entry of summary judgment(see Magan Lal brothers Ltd v L.B. Masters & Company Civil Appeal No 31/84 and Carpenters Fiji ltd v Joes Farm Produce Ltd; see also comments of Thomas J in Hibiscus Shopping Town Pty Ltd v Woolworths Ltd(1993) FLR 106 at 109"

(emphasis is added)

19. Since the Plaintiff has failed to fulfill the preliminary requirements as stated in the Order 14 rule 2(1) and it had not proved the claimed amount and the no calculations are produced and how it arrived at the amount of $124,382.64 as at 31st May, 2008 is not clear. This application cannot succeed and I need not venture to find out whether the requirements in terms of Section 66 of the Consumer Credit Act had been complied by the Plaintiff. This is a defence that was stated in the statement of defence and also in affidavit in opposition to this application for summary judgment.
    

4. CONCLUSION
   

20. The Plaintiff has failed to file materials in support to an affidavit verifying the facts on which the claim or the part of a claim to which the application relates as required in Order 14 rule 2(1) and since there is no proof of the amount of the claim (remaining debt on all three loans) the application for summary judgment is dismissed.
    
21. The Defendant is granted $ 750 as the cost of this application assessed summarily.
    

5. THE FINAL ORDERS
   

1. The summons for the summary judgment is dismissed and struck off.
2. The Plaintiff is ordered to pay a cost of $750 to the Defendant as the cost of this application, assessed summarily.
   

Dated at Suva this 3rd day of October, 2011.

.................................................
Mr. Deepthi Amaratunga
Master of the High Court
Suva