Lal v Singh [2013] FJHC 126; HBC99.2008 (20 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 99 of 2008.

BETWEEN:

KAMAL LAL

of Delaivauna, Taveuni, Teacher.

PLAINTIFF

AND:

MAIN SINGH aka MAHEND SINGH
of Lot 68 Vatua Road, Narere, Subdivision, 8 Miles, Nasinu, Taxi Driver.

DEFENDANT

BEFORE : Justice Deepthi Amaratunga

COUNSEL : Ms. Vasiti M. for the Plaintiff

Mr. Niubalavu P. K. & Mr. M. A. Khan for the Defendant

Date of Hearing : 8th March, 2013

Date of Decision : 20th March, 2013

DECISION

1. INTRODUCTION
   

1. The Plaintiff filed the summons in terms of Order 45 rule 7 of the High Court Ruled of 1988 seeking an order to execute a transfer of a land which was subjected to a sale and purchase agreement between the Plaintiff and the Defendant, and the court had granted the judgment for specific performance of the said sale and purchase agreement entered on 7th January, 2007. The Plaintiff is alleging that Defendant had not complied with the order of the court and seeking the assistance of the Deputy Registrar of the court for the execution of the transfer of the property in accordance with the judgment. The said sale and purchase agreement specifically state that the transfer was subject to a new lease being issued, since the Defendant had only an approval notice for a lease and there is no evidence of new lease being granted to the Defendant in lieu of approval notice for a lease over the state land.
   

2. ANALYSIS
   

2. The Order of the Court sealed on 23rd August, 2012 states as follows
   
   1. "That the application for setting aside an order for summary judgment for specific performance of the sale and purchase agreement is dismissed.
      
   2. That the Defendants execute all the documents necessary for specific performance of the agreement and in the event that he refuses to do so, the Plaintiff is at liberty to file an application that the Court appoints an office to execute the documents on his behalf."
      
2. This application seeking the assistance of the Deputy Registrar to execute the transfer is made in pursuant to the said orders of the court and this is an admitted fact and also evidenced from the proceedings of this action.
   
3. The court had granted the specific performance of the sale and purchase agreement and further ordered if the Defendant failed to execute any document necessary for specific performance the Plaintiff could apply to the court seeking an appointment of an officer for the purposes of the execution.
   
4. The Plaintiff had through summons applied to the court for such an appointment of the Deputy Registrar for the execution of the transfer of the said property and the first thing the Plaintiff has to satisfy to the court is that the Defendant had refused to execute any document necessary for the specific performance of the sale and purchase agreement entered between the parties on 2nd January, 2007.
   
5. The clause 5 of the said sale and purchase agreement states as follows
   

'Settlement shall be effected upon issuance of the new lease from Lands Department and finance to be arranged by any commercial banks (sic) within 3 (three) months from the date of execution of this agreement and transfer document or such other date as may be mutually agreed in writing between the parties. Settlement shall be at ...

(a) The Purchaser Solicitor will hand over stamped Transfer document of the said Crown Lease Reference number 4/16/6916 in exchange for a cheque for the balance purchase price of $40,000....."

6. The condition precedent to the said transfer in accordance with the said sale and purchase agreement was the issuance of new lease. This was required since the Defendant did not have a lease at the time of the execution, but only an approval notice for a lease. So, till the Defendant obtains a lease the transfer cannot be executed and the court cannot intervene to execute the transfer till a new lease is issued to the Defendant. There is no evidence of such a new lease being issued to the Defendant and admittedly no such new lease was issued to the Defendant, yet and this application is premature.
   

100. CONCLUSION
     

3. The application is premature and should be struck off since the condition precedent contained in the sale and purchase agreement had not eventuated. The summons dated 11th January, 2013 is struck off and the Defendant is granted a cost of $500 assessed summarily.
   

4. FINAL ORDERS
   

1. The summons dated 11th January, 2013 is struck off.
2. The Defendant is granted a cost of $500 assessed summarily.
   

Dated at Suva this 20thday of March, 2013.

.................................................
Justice Deepthi Amaratunga
High Court, Suva