Verma v Prasad [2015] FJHC 95; Civil Action 338 of 2009 (20 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 338 of 2008

BETWEEN:

SANJAY SINGH VERMA of Raralevu, Nausori, Businessman
Plaintiff

AND :

DIVEN PRASAD trading as DIVEN PRASAD LAWYERS
of 1st Floor, 19-23 Cumming Street, Suva
Defendant

Appearance : Mr Sunil Kumar of Sunil Kumar Esq, Counsel for the Plaintiff
Mr W Pillay of Neel Shivam Lawyers, Counsel for the Defendant (withdrawn when the trial commenced)

Date of Judgment : 20 February 2015

JUDGMENT

[1] The Writ of Summons filed on 29 September 2008 and the Plaintiff sought the following Orders:

1. Damages of $38,570.00 pursuant to paragraph 10 of the Statement of Claim.

2. Damages for mental anguish to be assessed by the court.

3. Aggravated damages pursuant to paragraph 7 of the Statement of Claim.

4. Cost on full indemnity basis.

5. Such further relief.

[2] Background

2.1 The Defendant is a Barrister and Solicitor who is practicing under the name and style of Diven Prasad Lawyers who was retained and employed by the Plaintiff for reward to prosecute.

2.2 On 7 December 2005, the Plaintiff had given instructions to sue and had paid a sum of $1000.00 for five cases and the Defendant had promised to recover all monies recovered and will get the desired results.

The Plaintiff stated $500.00 was paid in full payment for Case No. 591 and $600.00 paid to Tevita Fa & Co. for initial filing of claim. The Defendant had accepted in the pre-trial conference minutes that he agreed to act for the Plaintiff on payment of fees and took deposits and took payments towards prosecution of 5 cases as per Statement of Claim.

2.3 The issues to be decided in this matter are:

(1) As to whether the Defendant was careless and or negligent in prosecuting the Plaintiff's claim which resulted in the 5 cases being struck off the cause list?

(2) As to whether the Defendant was careless and or negligent in enforcing execution process to realize the judgment sum whereby deliberately allowing the judgment debtor to leave the jurisdiction of this court to settle abroad.

(3) As to whether the Defendant is entitled to rely upon the doctrine of Solicitors immunity?

(4) If the answer to the issue No. 1 and 2 are in favour of the Plaintiff, how much damages the Plaintiff is entitled to and whether the Plaintiff is entitled to cost and what amount?

[3] Evidence Analysis and Determination

3.1 This matter was taken up for trial on 9 July 2012, and the Defendant was represented by the counsel Mr Pillay. He stated to the court his client is presently in New Zealand and the trial date was informed to him on 12 January 2012. Two weeks back the Defendant had left to New Zealand and requested for a fresh trial date and stated that Mr Pillay is not in a position to conduct. The Plaintiff's counsel objected for the application for adjournment for the following reasons:

(i) The Defendant was aware of the Trial date since 12 January 2012;

(ii) No indication given or no motion filed for adjournment;

(iii) There will be prejudice caused to the Plaintiff if the trial date is vacated.

Considering the submissions of both the counsel, I made order to proceed with the trial in absence of the Defendant, and Mr Pillay did not participate in the proceedings of this case thereafter.

[4] The Plaintiff, Sanjay Singh Verma had testified and stated:

4.1 The witness met the Defendant Solicitor at his office at Cumming Street and had a discussion with regard to filing legal action against some parties and the Defendant having evaluated the documents he stated he can successfully recover the monies due and was asked to pay retainer for 5 cases.

4.2 Three receipts dated issued by the Defendant were marked as Exhibits in the evidence as P1, P2, and P3 for $1000, $200, $300 totaling to $1,500.00.

4.3 The Defendant agreed to handle the cases personally, however, he never appeared in the Suva Magistrates Court and the Defendant used to send his agents and some other junior counsels.

4.4 The said cases were struck out due to non appearance and was unable to recover any monies.

4.5 The witness stated in paragraph 10 under the heading "Particulars of Losses" item 5, the case was in Tavua Magistrates Court. He received a call on 5 September 2005 from Diven Prasad Lawyers the case to proceed for formal proof and the witness travelled to Tavua and met Mr Chandra Singh, the City Agent of Diven Prasad Lawyers. When he got into the witness box for formal proof, the Magistrate had informed him his case was struck out on 28/8/2008. For the Tavua case, the witness had travelled 4 times in his own vehicle and it cost $200 per trip. However, there was no documentary evidence produced.

4.6 The witness referring to 'P1' stated the full payment on Case No. 891 (item 1 in paragraph 10 of the Statement of Claim), no one came to court from Diven Prasad Lawyers, the matter was struck out. In the meantime, the Defendant had migrated and was unable to recover the monies (P4 letter dated 8 June 2007 addressed to Diven Prasad was tendered). I accept the evidence of the Plaintiff.

4.7 Referring to item 2 of the Statement of Claim, the witness stated that default judgment was obtained against the Defendant, Rajnesh Prasad and he was on the verge of migrating to New Zealand and the Defendant in this case was instructed to obtain absconding warrant however, he had not appeared and the witness had to personally appear before the Magistrate and got the orders. The sealed orders were given to the Defendant Diven Prasad to inform the immigration which he failed to do so. As a result, Rajnesh had migrated to New Zealand and the Plaintiff loss the monies due from Rajnesh. To support his evidence, the Plaintiff witness marked P5 and P6 the Affidavit of Service and the letter dated 13 May 2008 addressed to the Defendant. I accept the evidence.

4.8 Referring to Item 3 of the paragraph 10, the Plaintiff stated this case against Sanjay Rajendra Prasad and alleged that the Defendant obtained the judgment by formal proof by swearing a false affidavit on 3 September 2008. In his evidence he stated the Defendant filed in Nausori Magistrate Court by Ravono Law to set aside the judgment and the Plaintiff appealed to the High Court. The Plaintiff stated that the High Court ordered $1,000.00 costs and dismissed his appeal. As there was no pleading in the Statement of the appeal and the costs ordered by the High Court in the sum of $1,000, I disregard the evidence on Item 3. Further, I observe document marked 'A' the formal Decree, the appearance was made by Mr Sunil Kumar counsel for the formal proof in this matter and not by Diven Prasad Lawyers and I find there is no negligence by the Defendant in this case.

4.9 The Plaintiff stated in his evidence he underwent mental trauma because the cases were lost and he was unable to recover the monies. When the court inquired from the witness he admitted the Defendant took steps to file all the cases and thereafter proper steps were not taken and the cases were struck out. He also stated an inquiry by the court that although the Plaintiff tried to meet the Defendant before this case was filed, he evaded him.

4.10 There was no evidence before me with regard to item 4 of the paragraph 10 of the Statement of Claim, case against Sanjay Kaur Bajpai.

[5] Before making conclusions on the evidence, I observe the Defendant failed to take this trial seriously and no proper instructions were given to his counsel to conduct the trial. As a result, the counsel kept away from the proceedings and the Defendant's absence at the trial was inexcusable, as a Solicitor he had not shown any respect for the proceedings before this court.

[6] The Plaintiff's evidence is unchallenged and I believe his evidence with regard to negligence of the Defendant. I am satisfied that the Defendant failed to exercise competence and care to maintain professional standards.

[7] The Defendant had failed to provide competent representation to the Plaintiff. The Defendant had failed to prepare for the Plaintiff's cases which are necessary for the representation. It is proven on balance of probabilities that the Defendant was negligent in his duties towards the Plaintiff as detailed in the precedent paragraphs of this Judgment. Thus the Defendant is liable for damages for negligent and the Defendant cannot seek cover under doctrine of solicitors immunity.

[8] I conclude after consideration of the evidence, the Defendant is liable for the following losses incurred by the Plaintiff as stated in paragraph 10, and the Plaintiff has proven the negligence and not applying duty of care on the following cases:

1. Jyotishna Raj - $ 6,100.00 (item 1 in paragraph 10 of the Statement of Claim)
2. Rajnesh Prasad - $ 7,500.00 (item 2 in paragraph 10 of the Statement of Claim)
3. Sanjay Kaur Bajpai - $ 8,030.00 (item 3 in paragraph 10 of the Statement of Claim)
   

Total $21,630.00

The Plaintiff could not establish cases against Sanjay Rajendra Prasad and Sanjay Kaur Bajpai (items 3 and 4 of the paragraph 10 of the Statement of Claim) were struck out on the negligence by the Plaintiff. There was no proof of expenses on 10 trips made to Navua and I disregard the claim of $2,000.00 by the Plaintiff.

[9] I am not awarding any damages for mental anguish or any aggravated damages alleged to be suffered by the Plaintiff since there was no satisfactory evidence to establish the said claim.

Orders:

1. The Defendant is ordered to pay specific damages of $21,630.00 to the Plaintiff within 30 days of this Judgment together with interest at 4% per annum up to the date of full payment.

2. I consider the costs incurred by the Plaintiff due to the negligence of the Defendant and award cost of $2,500.00 summarily assessed, and order the Defendant to pay the said costs within 30 days of this Judgment.

Delivered at Suva this 20th Day of February 2015.

............................
C KOTIGALAGE
JUDGE