Deo v Raidu [2012] FJHC 1291; 2012.08.12 HBC89.2009 (21 August 2012)

IN THE HIGH COURT OF FIJI AT LAUTOKA CIVIL JURISDICTION
HBC 89 OF 2009/L
BETWEEN	:	RAJ DEO formerly of Wailailai, Ba, Fiji, Priest but now of Sydney, Australia. PLAINTIFF
AND	:	RAMESH RAIDU, RAIDU BHIM KRISHNA, TATAIYA all sons of Krishna Raidu as Executors and Trustees of the Estate of Krishna Raidu of Wailailai, Ba, Fiji. DEFENDANTS

RULING

[1] The plaintiff, by his amended statement of claim filed on 22 February 2012, is suing the defendants in their capacity as trustees of the estate of the late Krishna Raidu. The defendants are all surviving sons of the late Raidu. The plaintiff alleges that he (as purchaser) and Raidu (as vendor) entered into an agreement for the sale and purchase of a quarter acre piece of land in 1981. The land in question is legally described as Lot 3. According to the Statement of Claim, Lot 3 was part of a surveyed plan of a subdivision of Certificate of Title No. 20584. CT 20584 apparently was to be subdivided into 12 lots at some stage, of which Lot 3 was to be one of the twelve lots. The agreement was made in 1981 in a solicitor's office in Ba. Paragraph 4 of the amended statement of claim pleads that the consideration for the sale and purchase of Lot 3 was "$6,000.00 (five thousand dollars)" (my emphasis to highlight the typographical error). According to paragraph 5 of the amended statement of claim, the plaintiff was granted possession but the defendants have neglected to provide the plaintiff with a proper title and/or to register the transfer. The plaintiff had built a house on the property which he could not complete because of his inability to raise a bank loan which stemmed from his inability to give security because of his lack of title. All that the plaintiff seeks from this court is an order for specific performance.

[2] The defendants had filed a single-page statement of defence in July 2009. The defence contained four (4) short simple sentences which are, but a blanket denial of every allegation of the plaintiff. The only thing that the defendantshave pleaded specifically is the Limitations Act (Cap 35). Section 4 of the Limitations Act (Cap 35) sets out the limitation period for various types and classes of actions. But section 4(7) specifically states as follows:

(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.

(my emphasis)

[3] The defendants were represented by Messrs Samuel K. Ram who later withdrew upon lack of instructions. Thereupon, due to lack of appearance by the defendants, the matter was fixed for formal proof.

[4] On the date for formal proof (which was yesterday), Mr. Mishra tendered the Certificate of Title No. 18992 and a copy of the Agreement as well as an Affidavit of Manoj Kumar Sharma (the original plaintiff and son of Raj Deo the substituted plaintiff – see further below).

[5] The plaintiff seeks an Order that the defendants specifically perform the Agreement between the plaintiff and the late Krishna Raidu.

[6] But after having carefully considered the way the formal proof proceeded and the material before me, I refuse to grant an Order for specific performance against the defendants for the following reasons:

(i) there is no evidence before me that CT 18992 has been subdivided. There is an elaborate process involving various tiers of government departmental consents and approvals before any given piece of land is ready for subdivision. From where I sit, the plaintiff's claim appears to be premised on an allegation that he was promised a particular lot that was to be carved out of 18992. If I was to grant an Order for specific performance now, it would presuppose that CT 18992 has in fact already been subdivided. I am not prepared to act on that assumption. I need evidence – at least - that all regulatory approvals for the subdivision are in place. Otherwise, any Order for specific performance I make will be unenforceable if the regulatory consents have been withheld for whatever reason.

(ii) this action was originally instituted by Manoj Kumar Sharma, the son of Raj Deo. It is not clear to me whether or not Raj Deo did give instructions for the institution of the action.

(iii) later – on 06 April 2011, Sharma filed a summons to substitute his father Raj Deo as plaintiff. Deo now lives in Sydney. It is still unclear to me whether or not Deo is aware of these proceedings.

(iv) no one appeared at the formal proof to give evidence. Mr. Mishra simply relied on the agreement which he himself handed up from the bar table and also on an affidavit which Manoj Kumar Sharma had sworn on 21 March 2011.

(v) the agreement in questionidentifies Krishna Raidu as the vendor and Raj Deo and one Deo Narayan as purchasers. Deo Narayan is not at all involved in these proceedings – nor is there any explanation about him in the statement of claim. I suspect that he was to be allocated a separate lot out of the subdivided lots and may not have any interest in any lot that the plaintiff is interested in. But – again – that is mere speculation on my part which I am not prepared to act on. Without any such evidence, one is inclined to think that Deo Narayan is indeed interested in the same lot that the plaintiff is interested in and therefore – should be involved in these proceedings.

(vi) there was no evidence placed before me that Raj Deo had in fact paid the consideration price.

(vii) the description of the land in the agreement is not the same as the description of the land in the amended statement of claim.There may or may not be a valid explanation for the difference in description but none had been put before me.

DIRECTIONS

[7] Raj Deo is to file a Summons for Specific Performance under Order 86 of the High Court Rules 1988. The supporting affidavit must be sworn by him and must clarify the issues set out above. The application will also have to be formally served on the defendants and if service is difficult, an application for substituted service is to be considered in due course.

[8] Meanwhile, this matter is taken off the cause list and to be reinstated upon the filing of the Order 86 Summons.

Anare Tuilevuka
Master

At Lautoka
21 August 2012.