Chandra v Millenium Plant Company (Fiji) Ltd [2012] FJHC 1420; HBC239.2012 (16 November 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 239 of 2012

BETWEEN:

ANAND ATILESH CHANDRA
of Fantasy Island, Nadi trading as NADI AUTOBODY & PAINT, operating from Namaka Industrial Subdivision, Nadi.
PLAINTIFF

AND:

THE MILLENNIUM PLANT COMPANY (FIJI) LIMITED of Lot 21,
Nasilivata Road, Namaka Subdivision, Namaka, Nadi.
1ST DEFENDANT

AND:

ANITA SUBAMMA
of Bountiful Estate, Namaka, Nadi, Businesswoman.
2ND DEFENDANT

AND:

RAMANJALU NAICKER
of Nadi, Registered Bailiff.
3RD DEFENDANT

Before: Priyantha Nāwāna J.
Counsel:

Plaintiff-[Applicant] : Mr Suresh Maharaj
2nd Defendant-[Respondent] : In Person

Date of Hearing and Order : 16 November 2012

ORDER

1. The plaintiff-applicant, having filed a writ of summons dated 15 November 2012 against the 1st – 3rd defendants, is seeking a judgment in a sum of $30,000.00 allegedly being the cost of renovation and improvements effected on the 1st defendant's premises; a declaration that Notice of Distress of Rent dated 09 November 2012 was a breach of the consent order of court dated 04 September 2012; general damages and interests.
   
2. The plaintiff-applicant also sought injunctive relief against the distress of rents sought to be levied; a Restraining Order against the defendants from entering or disturbing the occupation of the premises presently occupied by the plaintiff-applicant; and a further injunctive order stopping the auction of assets as published in the Notice of Sale under Distress for Rent in the Fiji Sun of 15 November 2012.
   
3. This court, having heard the submissions of counsel on behalf of the plaintiff-applicant on 15 November 2012, granted an interim injunction only against the sale of assets as published in the said notice, which was marked as Annex. 'Q'. The sale was accordingly stopped until 2.00 pm on 16 November 2012. Notice of the injunction was issued on the defendants returnable at 9.00 am on 16 November 2012. The 2nd defendant-Ms Anita Subamma in her own right as the 2nd defendant and in representative capacity of the 1st defendant has responded to the service of the order of this court by her presence in person in court.
   
4. It is clear that the proposed sale, which was to take effect at 10.00 am on 16 November 2012 in pursuance of the newspaper advertisement marked 'Q' was to recover rents from the plaintiff-applicant in respect of the property that he has been occupying.
   
5. Court granted the interim injunction on 15 November 2012, upon prima facie being satisfied that the proposed sale was in breach of the consent order between the plaintiff and the defendants on 05 September 2012. Court, having had the benefit of hearing the submissions of Mr S. Maharaj on behalf of the plaintiff-applicant is convinced that there is no relationship between the consent order marked 'J' and the notice of sale marked 'Q'. Instead, it appears that consent order was culminated in consequence of the proceedings under Section 169 of the Land Transfer Act, by which the immediate threat of eviction of the plaintiff-applicant was dispelled.
   
6. The court is not prima facie convinced that non-payment of rent has been occasioned as a result of breach of any of the provisions of the Tenancy Agreement marked 'B' by the defendants. Such an observation could be made having regard to the substantive reliefs that had been sought by the writ of summons dated 15 November 2012.
   
7. The amount that is to be recovered by way of the sale is only in the region of $8,000.00 including the costs of the sale. After applying the principles of law in regard to the grant of injunctive relief, it appears that damages would be an adequate remedy after the trial into the substantive matter.
   
8. Court is, therefore, not inclined to extend the interim injunction granted in terms of paragraph (iii) of the Notice of Motion dated 15 November 2012. Hence, the interim injunction stopping the sale published in the Fiji Sun of 15 November 2012, is vacated forthwith. The defendants may accordingly proceed with the sale.
   
9. Costs of this application shall be the costs in the cause.
   

Priyantha Nāwāna
Judge
High Court
Lautoka
16 November 2012