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Chandra v Kumari [2011] FJHC 758; HBC151.2009 (22 November 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
Consolidated Actions


High Court, Lautoka, Case No: HBC 151/2009 with
Magistrate's Court, Nadi, Case No: 80/2007


HIGH COURT LAUTOKA CASE: HBC 151/2009


BETWEEN:


PRABASH CHANDRA of Votualevu, Nadi.
Businessman.
PLAINTIFF


AND:


KRISHNA KUMARI of Namaka Lane, Namaka, Nadi and SUBASH CHAND as Joint Administrators of the Estate of Deo Narayan.
DEFENDANTS


MAGISTRATE'S COURT NADI CASE NO 80/2007


BETWEEN:


PRABASH CHANDRA, Votualevu, Nadi
Businessman


AND:


DURGA PRASAD of Salovi, Nadi.
Businessman.
1ST DEFENDANT


AND:


RAMANJALU NAICKER, Registered Bailiff, Nadi.
2ND DEFENDANT


Before
Priyantha Nāwāna J.


Counsel
Ms Mary Muir for the Plaintiff in both Actions
Mr H Ram for Defendants in HC/Lautoka Case No HBC 151/2009
Mr Anil Singh for Defendants in MC/Nadi Case No 80/2007


Dates for Trial: 01-02 November 2011
Written Submissions: 11 November 2011
Date of Judgment: 22 November 2011


JUDGMENT


INTRODUCTION


(a) High Court Case
  1. The plaintiff, by his writ of summons dated 25 August 2009, instituted action against the defendants, Krishna Kumari and Subash Chand, in High Court Lautoka Case No HBC 151/2009 (High Court Case), to secure the sale of the property in Lot 7 in DP 2290 in the Certificate of Title No 9900 (the property) by way of specific performance. In the alternative, he sought damages for breach of contract.
(b) Magistrate's Court Case
  1. In Magistrate's Court, Nadi, Case No 80/2007 (MC Case), the plaintiff, by his writ of summons dated 22 May 2007, instituted action against the 1st defendant, Durga Prasad, and the 2nd defendant, Ramanjalu Naicker, a bailiff,, inter alia to restrain them from interfering with the plaintiff's possession of the property.

PROPERTY AND THE PARTIES TO THE TWO CASES


  1. The property, of which the owner was one Deo Narayan, is situated at Namaka Lane, Namaka, Nadi.
  2. Defendant-Durga Prasad was the tenant on the property by virtue of a Tenancy Agreement entered into with Deo Narayan on 27 October 2004 for five years commencing from 01 November 2004.
  3. The plaintiff moved into the property in August 2006 as a sub-tenant in the circumstances set-out later in this judgment. He has been in possession of the property to date.
  4. The owner of the property, Deo Narayan, died on 04 October 2006.
  5. Defendant-Krishna Kumari was in de facto relationship with the late Deo Narayan, while the defendant-Subash Chand was one of the sons of the late Deo Narayan. They are sued by the plaintiff in their capacity as Joint Administrators of the Estate of the deceased-Deo Narayan.

CONSOLIDATION OF ACTIONS


  1. (i) The plaintiff and the defendants in MC Case made a joint application to have that case transferred to High Court, Lautoka, and consolidate the same with the HC Case for expeditious and efficient resolution of the matters as provided for under O 4 of the High Court Rules of 1988. The application, having been considered by this court in the absence of objections by the two defendants in HC Case, was allowed on 12 September 2011 as the matters in issue were interrelated.

(ii) The defendants in MC Case, subsequent to the consolidation of the actions, filed an amended statement of defence and a counter-claim dated 14 September 2011 to which a reply and a counter-reply were filed by the plaintiff and the defendants respectively on 23 September 2011 and 04 October 2011.


TRIAL


  1. The consolidated actions proceeded to trial from 01-02 November 2011 on issues as set-out in the pre-trial conference minutes dated 07 March 2011. Most of the issues minuted under O 34 r 2 of the High Court Rules and filed of Record are both duplicated and repetitive or embedded in principal issues.
  2. The issues that I reckon as principal and material for determinations in the consolidated actions are:
  3. Parties agreed on following facts in the same minutes. They are:

SPECIFIC PERFORMANCE VIS-À-VIS WRITTEN AGREEMENT


  1. The suit for specific performance in HC Case against defendant-Krishna Kumari and Subash Chand is based on an alleged agreement between the plaintiff and the late Deo Narayan to sell the property to the plaintiff. The agreement, which is claimed to have been entered into on 26 August 2006, is said to have been reduced to writing. A photocopy of the said agreement is annexed to the affidavit evidence-in-chief of the plaintiff dated 07 September 2011 marked as 'PC-1' claiming that its original was retained by the late Deo Narayan. The original of the agreement, it is claimed by the plaintiff, is also subsequently lost.
  2. Perusal of the document marked 'PC-1', which is titled as 'Sale and Purchase Agreement', shows that it is a document with brief contents such as names of the late Deo Narayan and the plaintiff as the vendor and the purchaser respectively; and, a very casual identification of the property being 'Lot 7' Namaka Lane, Nadi. It also contains a sale price of $ 125,000.00 out of which an amount of $ 35,000.00 is claimed to have been paid by the plaintiff to the vendor, the late Deo Narayan, as a deposit without, however, any acknowledgement of its receipt. The balance sum of $ 90,000.00 was said to be payable before 30 March 2007. In addition to the vendor and the purchaser, there are two witnesses namely Rahmat Ali and Shabina Sabnam Nisha who, the plaintiff claims to have signed as witnesses to the transaction. There is a 'note' at the end of the one-page 'Sale and Purchase Agreement' to the effect that the existing rental agreement [between the plaintiff and the late Deo Narayan] was due to expire on 30 March 2007. The document was certified to be a true copy of the original by the then Resident Magistrate of Nadi on 01 September 2006. However, what is produced in court is not even the copy certified as true by the Resident Magistrate but a photocopy of that certified copy.
  3. Mr H Ram, appearing for the defendant-Krishna Kumari, objected to 'PC-1' on the basis that it was not a disclosed document in the Agreed Bundle of Documents (ABOD) dated 07 March 2011. In addition to the objection on a procedural footing, learned counsel also raised the issue of inadmissibility of the document as it did not conform to the best evidence rule in view of the absence of its original or a counterpart duplicate. Court, having heard all counsel, upheld the objection in regard to the specific inadmissibility of the document 'PC-1' per se but reserved the right for the plaintiff to furnish corresponding and admissible proof as the alleged transaction was stated to be evidenced in writing by the plaintiff.
  4. The 'Sale and Purchase Agreement' sought to be produced as 'PC-1' does not contain terms and conditions, as such, that are usually found in such an agreement. Instead, it has only the bare essentials, which could usually lay only the foundation, for formation of a contract. If that was, however, the intention of the parties, a legally enforceable contract could still have been formed.

PRINCIPAL ISSUE BEFORE COURT


  1. The principal issue before court is whether such an agreement was, in fact, entered into between the plaintiff and the late Deo Narayan as claimed by the plaintiff; or, whether it is a self-serving document of the plaintiff for him to make a claim over the property on the basis of an alleged compliance with Section 59 of the Indemnity, Guarantee and Bailment Act; Laws of Fiji; Chapter 232, (the IGB Act) to found the suit against the defendants.
  2. Section 59 of the IGB Act states:

No action shall be brought-


(a) whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or


(b) whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; or


(c) to charge any person upon any agreement made upon consideration of marriage; or


(d) upon any contract for sale of lands, tenements or hereditaments or any interest in or concerning them; or


(e) upon any agreement that is not to be performed within the space of one year from the making thereof,


unless the agreement upon which such action is to be brought or some memorandum or note thereof is in writing and signed by the party to be charged there or some other person thereunto by him lawfully authorized.

(Emphasis added)


  1. The issue, in the absence of the original or any counterpart duplicate of 'PC-1' before court needs be considered very closely in light of the position taken up by the defendants that the late Deo Narayan had not entered into such an agreement with the plaintiff on or about 26 August 2006, by when the late Deo Narayan was, in any event, terminally ill. Defendants, in effect, claim that the agreement sought to be made-out on the basis of 'PC-1' was non-est factum insofar as the late Deo Narayan is concerned.

PLAINTIFF'S EVIDENCE


  1. The plaintiff, in support of his case, testified on 01 November 2011 and adopted the contents of his affidavit dated 07 September 2011 as constituting his evidence-in-chief and marked:
  2. (i) The plaintiff in his evidence said that the written 'Sale and Purchase Agreement', sought to be produced as 'PC-1', was entered into on 26 August 2006 at the residence of the late Deo Narayan and that the defendant-Krishna Kumari was not present at the time of its execution; but, Rahmat Ali and Shabina Shabnam Nish witnessed the execution. It was made for the purpose of obtaining the licence from Nadi Town Council for the plaintiff to run a business on the property after talking to the late Deo Narayan two weeks before 26 August 2006.

(ii) The plaintiff said that he paid $ 35,000.00 in cash from three ANZ plastic bags at the time of signing the agreement and that the late Deo Narayan did not give him a receipt as Krishna Kumari was not present at the time to write a receipt for Deo Naryan. He did not have any proof to show as to how he came to be possessed of that high amount of money to make the payment to the late Deo Narayan.


(iii) The plaintiff agreed to move into the property and complete the work while paying rents until March 2007 by when the sale of the property was due to take place.


(iv) The plaintiff further said that the property was closed as its tenant, defendant-Durga Prasad in MC Case, was running a shop in half-completed building without a licence from the Town Council and that the late Deo Narayan got Durga Prasad to open the property for him. He paid $ 2300.00 for a refrigerator and a freezer inside the property, which were owned by Durga Prasad. After moving into the possession of the property in August 2006, the plaintiff claimed, that he renovated the property.


(v) He paid rents for the months of September and October 2006 on receipts bearing Nos. 2616 (PE-1) and 2617 to the late Deo Narayan in an amount $ 1000.00 and that he had to pay rents until March 2007. After the death of Deo Narayan, the plaintiff said, that three people namely, defendant-Krishna Kumari, one Tiger Chandra and defendant-Durga Prasad claimed right to the rent and that he stopped paying anyone of them as the claim for the rent was in dispute.


  1. Answering cross-examination by learned counsel for defendant-Krishna Kumari, the plaintiff said that only the late Deo Narayan and himself were present at the time of executing the 'Sale and Purchase Agreement' and that the 'paper work' was done before 26 August 2006. The plaintiff further said that the agreement was made to satisfy Nadi Town Council and that there was no duplicate made and that the original was retained by the late Deo Narayan. Answering further, the plaintiff said that he did not know the witnesses as they were arranged by the late Deo Narayan; but, witness Rahmat Ali could come as a witness.
  2. Answering cross examination by learned counsel for defendant-Durga Prasad, the plaintiff said that the defendant-Krishna Kumari accepted rents for months of September and October 2006 on behalf of Deo Narayan before his death and that he did not pay rent after Deo Narayan's death on 04 October 2006. He also did not take any steps to deposit the rent in view of the alleged dispute over the right to the rent with the solicitors or in favour of any other account.
  3. A copy of the 'Tenancy Agreement' between the defendant-Durga Prasad and the late Deo Narayan was shown to the plaintiff to which he said that he had not seen it before. It was suggested to the plaintiff that the defendant-Durga Prasad sublet the property with the approval of the late Deo Narayan for $ 1300.00 and that the plaintiff paid for the bond in an amount of $ 1300.00 on 11 July 2006 and the rent for the month of August on 31 July 2006 on receipts from the book marked '2D-2' to Durga Prasad. The plaintiff denied making any payment to the defendant-Durga Prasad as a sub-tenant.
  4. It was further suggested that the plaintiff, after the first payment of rent for the sublet premises for August 2006, refused to pay the defendant-Durga Prasad. Instead, he proceeded to pay only an amount of $ 1000.00 direct to the late Deo Narayan for months of September and October 2006 after disputing Durga Prasad's right to claim the rent. The plaintiff, however, denied the suggestions.
  5. Rahmat Ali was called next to testify for the plaintiff. Making an unsolicited statement, the witness, at the very outset, said that he came forward only to tell the truth. He said, referring to the document termed as a 'statutory declaration' shown by learned counsel for the plaintiff, that it was signed at the plaintiff's shop but not in the presence of a Commissioner for Oaths; and, that he did not know what the contents were. He had heard of the late Deo Narayan; but, he had never seen him.
  6. Ms Muir, learned counsel for the plaintiff, in light of the evidence of the witness-Rahmat Ali, abandoned leading the evidence any further in support of plaintiff's case and submitted the witness for cross-examination.
  7. Answering the learned counsel for the defendant-Durga Prasad, witness Rahmat Ali said that he used to work for the plaintiff as his driver in 2006. The witness said that the then Resident Magistrate, Nadi, used to visit the plaintiff often in the latter's office and they used to go out together. He also took some parcels from the shop of the plaintiff to the Resident Magistrate, Nadi.
  8. The case for the plaintiff was closed with the evidence of the plaintiff and that of witness-Rahmat Ali together with documents marked as 'PE-1' and 'PE-2'.

CASE FOR DEFENDANT KRISHNA KUMARI


  1. The case for defendant-Krishna Kumari began and concluded with her evidence along with documents marked '1D-1'-'1D-4'.
  2. Defendant-Krishna Kumari adopted the contents of her affidavit dated 31 August 2011 as her testimony in support of her case. Following matters, which remain unchallenged, are of material importance to decide the issues before court.
  3. Answering cross-examination on behalf of the plaintiff, she said that she came to know the plaintiff through defendant-Durga Prasad as the latter brought him to the late Deo Narayan to secure subletting of the property. Defendant-Krishna Kumari, although stated in the affidavit that no consent was given for subletting, it was admitted in cross-examination that such consent for subletting was, in fact, given by the late Deo Narayan and the rents for the sublet premises were accepted once through Durga Prasad and twice from the plaintiff. Defendant-Krishna Kumari admitted that the receipts bearing Nos. 2616 and 2617 dated 01 September 2006 and 01 October 2006 were issued by her on behalf of the late Deo Narayan to the plaintiff for the rents paid by the plaintiff for sublet premises in the property. She denied the plaintiff paying an amount $ 35,000.00 to the late Deo Narayan as she used to handle matters on behalf of the late Deo Narayan by August 2006 as the late Deo Narayan was by then seriously ill. She further said that the plaintiff refused paying the rent from November 2006 on the alleged basis of having an agreement with the late Deo Narayan in respect of the property.
  4. Answering cross examination of the learned counsel on behalf of the defendant-Durga Prasad, Krishna Kumari admitted the Tenancy Agreement dated 27 October 2004 where the late Deo Narayan had used only the thumb impression to execute the agreement to rent out the property to defendant-Durga Prasad.

CASE FOR DEFENDANT-DURGA PRASAD


  1. Defendant-Durga Prasad giving evidence said that he had entered into the Tenancy Agreement marked '2D-1' on 27 October 2004 with the late Deo Narayan in respect of the property. As he suffered a setback in his business in 2006 and fell into arrears of rents, he got the approval of the late Deo Narayan to sublet a part of the property.
  2. The plaintiff, who was known to him for two years prior to 2006, was taken to the late Deo Narayan and arrangement was made for subletting a part of the property for $ 1300.00 per month. The defendant-Durga Prasad tendered in evidence copies of the receipt bearing numbers 3211 dated 11 July 2006 and 3213 dated 31 July 2006 in support of the facts that the bond money and the rent respectively were collected from the plaintiff for the part of the property that was sublet.
  3. The part of the rent in an amount of $ 1000.00 for the sublet premises for the month of August 2006, having been collected from the plaintiff, was handed over to the late Deo Narayan by the defendant-Durga Prasad, as admitted by defendant-Krishna Kumari. As he asked for the rent for September 2006, the plaintiff said that he had paid the rent direct to Deo Narayan for the month of September 2006 and refused payment stating that he (defendant-Durga Prasad) was not his landlord. The plaintiff similarly refused payment for October 2006 and paid direct to the late Deo Narayan, as admitted by the defendant-Krishna Kumari.
  4. The defendant-Durga Prasad said that the plaintiff, thereafter, took high ground that the Resident Magistrate, Nadi, at the time was a friend of his and refused to give possession back.
  5. The defendant-Durga Prasad relied on the letter marked 'PE-2' produced by the plaintiff to show that he had got the Certificate of Partial Completion of the building on the property. However, he was kicked out of the premises that he was occupying by the plaintiff stating that he (the plaintiff) was the owner of the property.
  6. Answering cross-examination of the learned counsel for the plaintiff, defendant Durga Prasad admitted that he did not have a clause for subletting under the Tenancy Agreement and, therefore, he got the permission from the late Deo Narayan to sublet the premises for $ 1,300.00 to the plaintiff.
  7. Defendant-Durga Prasad closed his case with documents marked '2D1'-'2D7'
  8. I considered the evidence of respective parties as set-out above and the documents as relevant for determination of the issues before court in the consolidated actions.

ANALYSIS OF RESPECTIVE CASES


  1. The demeanour and deportment of witnesses is of material importance in assessing the credibility of respective versions as testified to by parties in this case. Calanchini J. in the case of Mudu v Tavueni Multiracial Probationary Land Purchase Co-operative Society Ltd [2010] FJHC 274; HBC 22/2004 adopted the dictum in Faryana v Chocny [1952] 2 DLR 354 at 356-7, formulated as follows:

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction to the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions... .Again, a witness may testify what he sincerely believes to be true but he may be quite honestly mistaken. For a trial judge to say 'I believe him because I judge him to be telling the truth' is to come to a conclusion on consideration of only half the problem. In truth it may easily be self –direction of a dangerous kind.


The trial judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion'.


(Emphasis added)


  1. I will suitably adopt the above dictum in determining the issue whether there was in fact a 'Sales and Purchase Agreement', particulars of which were sought to be mirrored on the basis of 'PC-1' by the plaintiff.
  2. In the absence of its original or any counterpart duplicate - more importantly as the vendor, too, is dead at the time of these proceedings - there is no primary and verifiable evidence for court to come to a conclusion with ease with regard to the existence of such an agreement between the plaintiff and the late Deo Narayan to hold the defendant-Joint Administrators contractually liable for specific performance. The issue, therefore, needs be considered on the basis of what version of the individual party is '... in accordance with the preponderance of probabilities in the case...'
  3. Upon consideration of the evidence, I am satisfied upon a balance of probabilities that the late Deo Narayan was seriously ill by August 2006 so as not to be able to engage in an execution of an agreement on his own accord without the assistance or involvement either of the defendant-Krishna Kumari or any other person. As admitted by the plaintiff himself, he could not get the receipt for the payment of his deposit of $ 35,000.00 on the date of the execution of the alleged 'Sale and Purchase Agreement', because defendant-Krishna Kumari was not there to write the receipt for the late Deo Narayan. A serious question arises here, as to why the plaintiff had such alacrity to pay the deposit of $ 35,000.00 and execute the agreement in Krishna Kumari's absence even without getting the receipt for such payment.
  4. Moreover, it is beyond comprehension why the plaintiff left the late Deo Narayan without waiting to collect the receipt for the payment upon return of defendant-Krishna Kumari at the residence where the agreement was said to have been executed. The fact of not receiving a receipt, if such transaction ever took place, is highly improbable to the extent of disbelieving the plaintiff because he had on two later occasions had collected the receipts from defendant-Krishna Kumari for payments of meager amounts of $ 1000.00. The plaintiff, as his conduct on other occasions had shown, could be expected to have collected the receipt for this all-important deposit of $ 35,000.00 to secure the sale of the property, when he visited the late Deo Narayan for payment of the rent on 01 September 2006. If he failed on that date, he would have done so at least on 01 October 2006 when he met the late Deo Narayan to pay the rent for October 2006. On both occasions defendant-Krishna Kumari was present and, in fact, she wrote and gave the receipts on behalf of the late Deo Narayan for those payments of rents for sub-tenancy. Failure on the part of the plaintiff to allow such payment, in executing the agreement to purchase the property, to have surfaced in the presence of defendant-Krishna Kumari, seriously militates against the plaintiff insofar as such payment's improbability is concerned.
  5. The late Deo Narayan was not shown to be in financial distress so as to hurriedly dispose of the property. He had, in fact, given the property in favour of one of the children, being Ravinesh Chandra Narayan from his relationship with the defendant-Krishna Kumari, on the last will dated 30 September 2002. Therefore, it could not be safely assumed that the late Deo Narayan could possibly have intended to agree for the sale of the property. If he did, it was however, impossible to be without the knowledge of the defendant-Krishna Kumari, who was the mother of the beneficiary of the last will, as she was managing the property by August 2006.
  6. The plaintiff, who once said in evidence that the witnesses to the transaction were arranged by the late Deo Narayan, however, called Rahmat Ali, who was his driver in 2006 and known for some years, as one of the persons who was claimed to have witnessed the transaction. Witness Rhamat Ali unreservedly said that he had never seen the late Deo Narayan, even though, he had heard of him. His evidence, understandably, was not proceeded with by learned counsel for the plaintiff; and, as such, there is no evidence whatsoever that anyone else had witnessed the execution of the impugned Sale and Purchase Agreement. This denial of witness-Rahmat Ali irreparably contradicts the plaintiff that a 'Sale and Purchase Agreement' was executed as deposed to by the plaintiff on 26 August 2006 in his presence.
  7. Consequently, what is before court is only the evidence of the plaintiff as to the issue of executing a Sale and Purchase Agreement to secure the sale of the property. There is no primary documentary evidence on such an Agreement's existence or any other evidence through any of the witnesses as to the execution of the Agreement itself or to any other event leading to its execution.

DETERMINATION


  1. Analysis of facts and circumstances, as set-out above, lead me to find that the plaintiff's evidence is fabricated. He, at times, gave very contradictory and improbable evidence making him a witness without any credit. He was evasive in answering questions in cross-examination in order to suppress the truth. I conclude that the plaintiff uttered falsehood before court and no credit whatsoever could be attached to his testimony
  2. I accept the evidence of the defendants, Krishna Kumari and Durga Prasad and conclude that they were truthful before court. Their evidence is '... in accordance with the preponderance of probabilities in the case...'
  3. I, accordingly, find that the plaintiff moved into a part of the property after entering into an agreement of subletting with the defendant-Durga Prasad with the knowledge and the consent of the late Deo Narayan and defendant-Krishna Kumari from August 2006 for a monthly rental of $ 1300.00. The plaintiff continued to be a sub-tenant under the Tenancy Agreement until 31 October 2009 by which he had to pay $ 1000.00 a month to the Estate of the late Deo Narayan and $ 300.00 a month to defendant-Durga Prasad. Having dispossessed the defendant-Durga Prasad, the plaintiff continued to occupy the property in its entirety from about September 2006 and unlawfully refused paying rents totally for the property from November 2006 to date.
  4. The plaintiff, having defaulted payment of his rents, nevertheless, gave the property in its entirety to three persons for money as claimed by defendant-Krishna Kumari in paragraphs 64-74 of her affidavit evidence-in-chief. This evidence remains unchallenged. Defendant-Krishna Kumari claims that the plaintiff's conduct amounts to unjust enrichment, which she monetarily quantifies to be in an amount of $ 79, 300.00.
  5. I hold that the preponderance of probabilities are against the plaintiff to conclude that he (the plaintiff) concocted the version of having a Sales and Purchase Agreement with the late Deo Narayan to satisfy his ulterior motive of securing the sale of the property in his favour after moving in as a sub-tenant.
  6. I, therefore, find that the action for specific performance was based with fraudulent intent on fabricated evidence and material such as 'PC-1'. The plaintiff did not have a scintilla of evidence to reach the standard of preponderance of probabilities in order to found a suit against defendant-Krishna Kumari. I, accordingly, dismiss the plaintiff's action in High Court Case No HBC 151/2009 and impose costs on indemnity basis against the plaintiff payable to the estate of the late Deo Narayan.
  7. I find that the case of the defendant-Krishna Kumari, as counterclaimed in the statement of defence dated 22 September 2009, is proved on a preponderance of probabilities. I, accordingly, enter judgement in favour of the estate of the late Deo Narayan, as prayed therein, as follows with costs fixed at $ 5000.00 payable to the estate of the late Deo Narayan.
  8. Accordingly, I declare that:
  9. I order that:
  10. Defendant-Krishna Kumari has also claimed general damages. As no evidence was adduced in regard to such damages in tort, I refrain from considering any award for general damages.
  11. I also dismiss the case of the plaintiff against defendant-Durga Prasad as being unfounded for the reasons set-out in paragraphs 50-52 above with costs on indemnity basis payable to defendant-DurgaPrasad. I find that the case, as counterclaimed, by defendant-Durga Prasad is proved on a preponderance of probabilities. I enter judgement in favour of the defendant Durga Prasad in respect of the counterclaim in MC, Nadi Case No 80/2007 as set-out below with costs fixed at $ 2000.00 payable to the defendant-Durga Prasad.
  12. I declare that the plaintiff was the sub-tenant on the property under the defendant-Durga Prasad from 01 August 2006 until the expiry of the Tenancy Agreement, '2D-1', on 31 October 2009 for the rent of $ 1300.00 per month. Defendant-Durga Prasad was entitled to $ 300.00 for the sublet premises of the property [The estate of the late Deo Narayan was entitled to the balance of $ 1000.00, as concluded above]. The plaintiff unlawfully failed to pay the defendant-Durga Prasad that amount from September 2006-31 October 2009 totaling $ 11, 400.00.
  13. I, accordingly, order the plaintiff to pay defendant-Durga Prasad only the amount of $ 11,400.00 on or before 30 November 2011 under paragraph (i) of the amended statement of claim dated 09 September 2011. I also award interest at the rate of 10% considering the location of the property and its commercial use. If the plaintiff defaults payment, he is further ordered to pay a sum of $ 100.00 a day subject to the same interest until the payment is made in full. Defendant-Durga Prasad is not entitled to any other amount as defaulted rents for the whole property in the absence of evidence on creation of such sub-tenancy. Defendant-Durga Prasad should return to the plaintiff a sum of $ 1300.00 retained by him as the bond money after completion of plaintiff's payments.
  14. The other reliefs, mostly based on tortious liability as sought in the prayer of the defendant-Durga Prasad, are not substantiated by evidence before court. I, therefore, do not consider damages in tort for want of evidence. Others could well be made against the estate of the late Deo Narayan.
  15. Plaintiff is ordered to return the two freezers, which he accepted to have taken charge of, to defendant-Durga Prasad forthwith. The other chattel mentioned in paragraph 17 of the affidavit of defendant-Durga Prasad dated 28 October 2011 or each item's corresponding value as at August 2006 to be returned to the defendant-Durga Prasad upon proof of each item's ownership, on or before 30 November 2011.
  16. In the circumstances, I make following orders:

HC Case No HBC 151/2009


(i) The plaintiff's action against defendant-Krishna Kumari is dismissed with costs payable on indemnity basis;

(ii) Defendant-Krishna Kumari's counterclaims is allowed with costs fixed at $ 5000.00;

(iii) Plaintiff is ordered deliver the possession of the property to defendant-Krishna Kumari forthwith but not later than 30 November 2011. Plaintiff to pay a sum of $ 250.00 with an interest of 10% per annum for each day of late delivery;

(iv) Plaintiff is ordered to pay the defaulted rents in an amount of $ 36,000.00 for the period of 01 November 2006-31 October 2009 with an interest of 10% per annum. Plaintiff to pay a sum of $ 250.00 with an interest of 10% per annum for each day of late payment;

(v) Plaintiff is ordered to pay mesne profit in an amount of $ 25,000.00 for the period of 01 November 2009-November 2011 with an interest of 10% per annum; and,

(vi) Plaintiff is ordered to return the amount of $ 79,300.00, by which he became unjustly enriched.

Defendant-Krishna Kumari is ordered to accept all payments and the delivery of the property and credit all moneys and the property to the estate of the late Deo Narayan.


MC, Nadi, Case No 80/2007


(vii) Plaintiff's Action against defendant-Durga Prasad is dismissed with costs on indemnity basis payable to defendant-Durga Prasad;

(viii) Defendant-Durga Prasad's counterclaim is allowed with costs fixed at $ 2000.00 payable to the defendant-Durga Prasad;

(ix) Plaintiff ordered to pay the defaulted rents in an amount of $ 11,400.00 to defendant-Durga Prasad for the period of September 2006-31 October 2009 with an interest of 10% per annum. Plaintiff to pay a sum of $ 100.00 with an interest of 10% for each day of late payment.

(x) Plaintiff is ordered to return the freezer and the refrigerator to defendant-Durga Prasad forthwith, which he accepted to have taken charge of. The other chattel mentioned in paragraph 17 of the affidavit of defendant-Durga Prasad dated 28 October 2011 or each item's corresponding value as at August 2006 to be returned to the defendant-Durga Prasad upon proof of each item's ownership, on or before 30 November 2011.
  1. Orders, accordingly.

Priyantha Nāwāna
Judge


High Court
Lautoka
22 November 2011

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