Singh v Singh [2016] FJHC 589; HBC279.2015 (30 June 2016)

In the High Court of Fiji

At Suva

Action No. 279 of 2015

BETWEEN: Anand Kumar Singh

Plaintiff

AND: Raman Pratap Singh and Ami Chandra Kohli

Defendants

Appearances: The plaintiff in person
MrShelvin Singhfor the defendant
Date of argument: 15^th October,2015

Judgment

1. In these proceedings brought by way of originating summons, the plaintiff and the first defendant, both Solicitors are locked in a battle over the sharing of fees, in respect of legal services they provided to Natadola Bay Resort Limited,(NBRL). The plaintiff was counsel;Kohli & Singh, the first defendant’s firm was solicitor on record. The plaintiff states that the parties agreed to the sharing of fees on a 80:20 ratio basis. The plaintiff alleges that in breach of the 80:20 agreement, Kohli & Singh is claiming a sum of $79,559.57 as payableto the firm, in terms of a Deed of Settlement which the plaintiff and the first defendant’s firm entered into with NBRL. The first defendant’s position is that his firm is entitled to the sum specified in the Deed.There was no agreement for a variation of the payment of $79,559.57.
   
2. The plaintiff seeks the following Orders:
   1. That the Plaintiff was engaged primarily as an independent legal Consultant with the defendant’s law firm and the Plaintiff was instrumental in procuring Natadola Bay Resort Limited as a client who he introduced to the law firm on divers date in June 2008.
   2. That there was an agreement between the Plaintiff and the law firm, that the law firm will permit the Plaintiff to use the defendant’s law firm name in rendering its services to the client, NBRL.
   3. That it was an expressed agreement inter alia between the Plaintiff and the Defendant by its partner R. Pratap Singh that the Plaintiff and the defendant will share the fee generated for the engagement of services with the client NBRL on the basis of 80% to the Plaintiff and 20% to the defendant free of all deductions except for expenses incurred by the Plaintiff (the formula).
   4. That in terms of the above stated formula the plaintiff and the defendant are obliged to share all the fee payable by the client NBRL on the basis of the above formula and in particular an amount of $98,022 currently due and payable by NBRL for the services rendered by the Plaintiff for the period 2008 to 2009.
   5. An order that the plaintiff is entitled to levy a lien in the sum of $10,000.00 over all proceeds of civil action number 142 of 2011 for his services as a barrister for the plaintiff in the aforesaid action, wherein the plaintiff and the defendant herein were the Plaintiffs in that action.
   6. An order for the delivery by the defendant of an account of all funds received from NBRL and disbursed by the defendant together with supporting documentations and receipt therefore. Furthermore an account be taken for all other sums found to be owing to the Plaintiff be paid over by the defendant forthwith.
   7. An order that the defendant is obliged to pay/refund an amount of $10,000.00 obtained by the defendant on or about July, 2012 from the Plaintiff on the pretext of tax payable by the Plaintiff.
   8. An order for an injunction directed at the Defendant that the defendants are entitled to uplift 20% of the proceeds of claim against the client NBRL in the amount of $14,290.00 after the deduction of Withholding Tax,.
   9. An order for costs on indemnity basis or costs to be assessed by the Court.
      

The affidavit in support

3. The plaintiff states that Mr R.Singh and he agreed to the sharing of fees in the ratio of 80% to himself and 20% tothe first defendant. Sharing was to be on the net amount less agreed deductions for expenses incurred at the offices of NBRL. On that formula, a legal fee exceeding $229,111.15 was paid by NBRL.On “each”occasion,Kohli & Singh released 80% of the fee receivedfrom NBRL to him.
   
4. In August 2012, he paid Mr R. Singh a sum of $10,000.00,as reimbursement of an “alleged” tax paid by him to FIRCA, on his behalf.
   
5. Mr R. Singh failed to give him proper accounts of deductions and a reconciliation of the accounts.FIRCA have disallowed all the expenses that Kohli & Singh “purportedly” deducted from his share of proceeds on the ground that Kohli & Singh have no record or receipts for such deductions from his share of the proceeds. Kohli & Singh are obliged to pay him the amounts deducted.
   
6. In June,2009, the new Board of NBRL disputed the bills of cost rendered by him in the name of Kohli & Singh. The matter was litigated and settled in an amount of $98,022.00, as contained in the Deed of Settlement annexed.
   
7. The plaintiff continues to state that“pursuant tothe Deedat my request NBRL has made the following cheques”:
   • “$13,962.00 .. as my personal travel re-imbursement free of all tax.
   • “$57,161.00 to me being 80% of the balance from the settlement amount and after deducting my personal travel allowance. ..”.
   • “$10,087.00 FIRCA – Anand Singh TIN 19-20021-0-3”.
   • “$14,290.00 to Kohli & Singh after tax deduction of 15% withholding tax”
   • “$2522FIRCA – Raman Pratap Singh.”
     
8. Kohli & Singh is demanding $79,559.57,as set out in the Deed,in breach of the agreed ratio of 80%:20%.The “alleged debt” relied on is for the “most part fictitious”. Kohli & Singh have no legal right over his share of 80% share on the ground that the plaintiff “purportedly” owes money to the firm.The affidavit in support concludes that “ it was clear to (him) that Kohli & Singh had mademala fide intentions”.

The affidavit in opposition

9. The first defendant, in his affidavit in oppositionagrees that it was a mutual agreement between the parties that the plaintiff will act as counsel, while his firm will be on record for various clients the plaintiff was representing,including NBRL.It was agreed that the gross income from fees would be divided on the basis that 80% would go to plaintiff and 20% to the defendant “for this matter only”. The total amount received was $229,111.15 and 80% was paid to the plaintiff.
   
10. All the expenses in respect of the work for NBRL, including wages for staff was to be paid by the plaintiff from his 80% share. Sharing was not to be on a net amount.
    
11. The sum of $10,000.00 claimed by the plaintiff was paid to FIRCA,ashis then partner Mr Ami Kohli was taxed.
    
12. The plaintiff is aware of all the details of his account and deductions made. HisAccountant is supplying accounts to FIRCA, as requested by them.
    
13. The first defendantadmits that he signed the Deed of Settlement with NBRL and states that the plaintiff is trying to vary the paymentsset out in the Deed.There was no agreement for any variation of the payments specified in the Deed.He demands the sum of $79,559.57 as was agreed to be paid to him by the plaintiff.
    
14. The first defendant claimsthe following was owed to him by the plaintiffand which “ formed the basis for him to agree to the full sum of $79,559.57 being paid to (him) directly”:
    • (i) advances of $4,676.85 taken by the plaintiff for which he gave cheques as security;
    • (ii) $ 8802.96 as payments made on behalf of the plaintiff for various expenses to be reimbursed by NBRL;
    • (iii) $1782.75 he paid for the plaintiff’s employee wages and
    • (iv) $22982.93 paid by the defendant to R. Patel lawyers when they acted for Dominion Finance .
      
15. In conclusion, the first defendant states that the claims by the plaintiff are false and misleading and moves that these proceedings by way of originating summons be terminated, as the plaintiff is raising a matter of fraud.
16. The plaintiff filed a supplementary affidavit attaching correspondence between himself and FNPF.
    

The hearing

The case for the plaintiff

17. At the hearing, the plaintiff submitted that there is no dispute between him and the first defendant as to the proportion in which fees received from NBRL, was to be shared.
    
18. The plaintiff rested his case on paragraph 21 of his written submissionshe handed over in open Court. Paragraph 21 reads as follows:

It is submitted that the OS is a correct procedure in the instant case. The submission is made on the basis that there is no dispute as to material facts that the Court has to decide and which requires viva voce evidence to be called...

1. There is no dispute as to the fact that the Plaintiff is a barrister and solicitor(he) secured NBRL..(and) the Defendant was the solicitor on record..The Plaintiff was Counsel.
2. It is common ground that there was an 80: 20 formula agreed..for the apportionment and sharing of the legal fees.

100. There is consensus that $229,111.00 was received from NBRL by the Defendant.

4. There is no dispute that 80% of the fees received by the Defendant from NBRL was paid over to the Plaintiff.
5. ..all expenses in respect of the out-office at NBRL was paid for from the 80% share belonging to the Plaintiff.
6. The Plaintiff accepts ..that $10,000.00 was paid by the Plaintiff towards the tax liability of the Defendant partner Mr Ami Kohli.
7. The Plaintiff accepts the counter-claim by the defendant as set out in paragraphs 14a, 14b and 14c of the defendants affidavit in opposition.
8. Admittedly the Plaintiff accepts that certain funds were indeed paid to Dominion Finance by the Defendant on the Plaintiff’s behalf...the recovery of the amount is time-barred and the issue is irrelevant for the present proceedings.
   

Following from above, it is submitted that there is nothing controversial in the..Declarations that the Plaintiff is seeking...(emphasis added)

The case for the defendant

19. Mr Shelvin Singh, counsel for the first defendant moved for summary dismissal of the originating summons on the ground that it does not “include a statement of the questions on which the plaintiff seeks the determination or direction..or a concise statement of the relief or remedy claimed..with sufficient particulars to identify the cause..of action ” as providedin Or 7,r3.
    
20. He also took objection to the originating summons on the premise thatthere are disputed questions of fact.
    
21. He argued that albeit the parties had originally agreed to a sharing of fees on a 80: 20 ratio, the agreement had been subsequently changed by a Deed of Settlement between the parties.
    

The determination

22. I will in the first instance, deal with Mr Shelvin Singh’sobjections.
    
23. The first is that thesummons and affidavit in support of the plaintiff do not contain a “concise statement of the relief or remedy claimed” within the meaning of Or 7, r 3.
    
24. I would agree thatthere is no concise statement of the relief or remedy, but on a reading of the affidavit in supportas a whole, a cause of action can be discerned, as I have summarised in the opening paragraph of this judgment.
    
25. Mr Shelvin Singh’s second objection is that the originating summons is improper in the present case, as there are disputed questions of fact.
    
26. The following passage from the judgment of Pathik J in Singh v Singh, [1994] FJHC 135 interpreting Or 5,r.4 (2) provides a complete answer to that contention;
    

According to my interpretation, where Rule 4(2)(b) provides that proceedings “in which there is unlikely to be any substantial dispute of fact, are appropriate to be begun by originating summons,”it merely says “appropriate” meaning, according to dictionary meaning ‘correct’ or ‘suitable,’ and does not preclude commencing an action by originating summons where there are disputed facts. It does not say that it ‘must’ issue as in Or 5 r 3.

27. I have reached a finding that there are no substantial disputes of fact in the instant case.
    
28. The affidavit in opposition contends that the plaintiff alleges fraud. I do not find an allegation of fraud. The affidavit in support only states that the first defendant had “mala fide intentions”.
    
29. I now turn to the plaintiff’s case.
    
30. The plaintiff, in his written submissions accepts the first defendant’s assertionsas regards the expenses paid from the 80% share of the plaintiff and the payment of $10,000.00 towards the tax liability of Mr Ami Kohli. He also accepts the counter-claimsof the first defendant,as particularized in his affidavit in opposition.
    
31. That brings me to the casus belli of this case. The plaintiff’s claimis for 80 % of the settlement figure of $98,022.00 payable by NBRL, in terms of the Deed of Settlement the plaintiff and the first defendant entered into with NBRL.
    
32. I turn to the tripartite Deed of Settlement of 17^th June,2015, signed by the plaintiff, the first defendant(for Kohli & Singh) and NBRL and filed in Civil Action no. 142 of 2011: ANAND KUMAR SINGHand KHOLI & SINGHv NBRL.
    
33. Clause 3.0 titled “Settlement of Agreed Sum“ reads;

The Defendant shall pay to the plaintiff the agreed settlement sum of $98,022.00 VIP as follows:-

1. To Anand Singh - $18,462.42 VIP

ii) To Kohli & Singh - $79,559.57 VIP

34. In terms of clause 3 of the Deed of Settlement, the first defendant is clearly entitled to the sum of $79,559.57.
    
35. The first defendant, in his affidavit in opposition explains how the plaintiff and he reached agreement on that sum. He states that there were several money claimsdue from the plaintiff to his firm which “formed the basis for him to agree to the full sum of $79,559.57 being paid to (him) directly” by NBRL.
    
36. The plaintiff, in his written submissions,admits the counter claims of the first defendant. To my mind, that concludes the matter.
    
37. In my view, there is simply no basis in law or fact for the plaintiff to vary the express terms of the Deed of Settlement.
    
38. In that context, I note that clause 5.0 of the Deed of Settlement titled “Variation of Settlement Repayment” provides:

Any variation to the settlement repayments in instalments as agreed herein by the Parties shall by mutually agreed to by the parties.

39. In the result and for the reasons I have given,the originating summons fails and is declined.
    
40. Orders
    • (a) I decline the reliefs claimed by the plaintiff.
    • (b) The plaintiff shall pay the first defendant costs summarily assessed in a sum of $ 1750.
      

A.L.B. Brito-Mutunayagam

Judge

30^thJune, 2016