PacLII Home | Databases | WorldLII | Search | Feedback

High Court of Fiji
You are here:  PacLII >> Databases >> High Court of Fiji >> 2021 >> [2021] FJHC 364

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

  Download original PDF

Singh v Prasad [2021] FJHC 364; HBC35.2012 (7 December 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. 35 of 2012


BETWEEN:


RAMAN PRATAP SINGH
PLAINTIFF


AND:


MAHENDRA PRASAD
DEFENDANT


Before:
Hon. Chief Justice Kamal Kumar


Counsels:
Mr A. Singh for the Plaintiff
Mr I. Samad for the Defendant


Date of Judgment: 7 December 2021


JUDGMENT


Introduction


  1. On 10 February 2012, Plaintiff caused Writ to be issued with Statement of Claim claiming for vacant possession, damages, interest and costs arising out of Sale and Purchase Agreement dated 29 June 1992.
  2. On 10 May 2012, Plaintiff filed Application to enter Judgment against Defendant and on 6 June 2012, being returnable date of Application it was struck out and Defendant was directed to file Statement of Defence within fourteen (14) days.
  3. On 15 June 2012, Defendant filed Statement of Defence.
  4. On 15 October 2012, Plaintiff filed Reply to Statement of Defence.
  5. On 4 February 2013, Plaintiff filed Summons for Directions and on 27 February 2013, being the returnable date of the Summons, Order in terms of the Summons was made.
  6. On 14 June 2013 and 20 January 2015, Plaintiff and Defendant filed their Affidavit Verifying List of Documents (“AVLD”) respectively.
  7. On 20 January 2014, Plaintiff filed Minutes of Pre-Trial Conference (PTC).
  8. On 20 February 2014, Plaintiff filed Copy Pleadings and Order 34 Summons.
  9. This matter was listed for trial on 24 and 25 November 2014.
  10. On 20 November 2014, Plaintiff filed Agreed Bundle of Documents.
  11. On 21 November 2014, Plaintiff filed Application to file Supplementary AVLD and on 25 November 2014, Plaintiff was granted Leave to file Supplementary AVLD which was filed on the same day.

Documentary Evidence

  1. By consent parties agreed to tender documents listed in Agreed Bundle of Documents dated 20 November 2014, and in Plaintiff’s Bundle of Documents dated 25 November 2014, marked as Exhibits P1 to P5 and P6 to P11 respectively.

Issues for Determination

  1. Issues for determination forming part of Part B of Pre-Trial Conference are as follows:-
    1. Did the Plaintiff breach the Sales and Purchase Agreement by not fully paying the balance sum of $12,000.00 and interest in installments as per clause 1(b) of the said agreement?
    2. What amount if any is due and owing by the Defendant?
    3. Did the Plaintiff give a notice to the Defendant in respect of the default amount?
    4. Is the Plaintiff entitled to vacant possession of the said property?

Plaintiff’s Case

  1. Plaintiff during examination in chief gave evidence that:-
  2. During cross-examination Plaintiff:-
  3. During re-examination Plaintiff:-

Defendant’s Case

  1. Defendant’s wife Raj Mati of J.P. Maharaj Road, Nakasi, Domestic Duties (“DW”) gave evidence for the Defendant.
  2. DW during examination in chief gave evidence that:-
  3. During cross-examination DW:-
  4. During re-examination DW:-

Statute Barred

  1. Defendant has raised issues that Plaintiff’s claim is statute barred and Res Judicata.
  2. Defendant submits that pursuant to s4(1) and s8(5) of Limitation Act 1971, Plaintiff’s claim is statute barred.
  3. Defendant has also pleaded that in his Statement of Defence.
  4. Agreement subject to this action is unique in terms of payment of purchase price of the land.
  5. This Court upon analysis of the evidence and demeanour of witness has no hesitation in believing Mr Raman Singh’s evidence that he agreed to sell the Property (vacant land) to the Defendant’s out of sympathy.
  6. In summary the purchase price of $13,000.00 as provided in clause 1 of the Agreement was to be paid as follows:-
  7. If Defendant paid the balance purchase price and interest at the rate of $260.00 per month then he would have paid balance purchase price and interest by 30 November 1997.
  8. This estimate date is arrived as follows:-

$260 x 46 months = $12,000.00 (balance purchase price)

$100 (Interest) x 46 months = 4,600.00

$16,600.00

$16,600.00 ÷ 260 = 64 months

  1. If that was the case and which should have been the case if Defendant kept the payment obligation then the settlement for sale of the Property should have taken place on or about 30 November 1997.
  2. Table below shows the payment that Defendant was to make every year and actual payments made by him.
Year
Payment Due ($260/month)
Payment made by Defendant
1992
1,300
$ 800.00
1993
3,120
2,400.00
1994
3,200
1,000.00
1995
3,200
1,100.00
1996
3,200
400.00
1997
3,200
100.00
1998
3,200
Nil
1999
3,200
400.00
2000
3,200
200.00
2001
3,200
Nil
2002
3,200
160.00
2003
3,200
Nil
2004
3,200
2,070.00
2005
3,200
1,760.00
2006
3,200
1,450.00


$11,840.00

  1. It is evidently clear from the Table that Defendant was very relaxed in meeting his payment obligation under the Agreement.
  2. It is to be noted that:-
  3. By looking at the Table it is apparent that Defendant’s complaint that Plaintiff instituted this proceedings after 19 years squarely fits the idiom “The pot calling the kettle black”.
  4. Time was not the essence as for settlement of the transaction to the Agreement.
  5. If Defendant wanted to settle by paying the balance price and interest payable then he should have given notice to complete to the Plaintiff that he is ready and willing to settle at a particular time and place.
  6. It is apparent that Plaintiff did not take any action after Defendant defaulted for reason known to the Plaintiff.
  7. One reason that came out in Plaintiff’s evidence was that interest payable took charge of any loss he would have suffered by Defendant’s delay in paying balance purchase price and interest.
  8. This Court finds that parties by their conduct kept the Agreement active and alive until 9 August 2011, when Plaintiff gave fourteen (14) days notice to rescind the Agreement which rescission according to DW’s evidence was acceptable to the Defendant.
  9. Failure by the Defendant to comply with the Notice brought contract to an end and Plaintiff after six months instituted this proceedings.
  10. It must be also noted that last payment made by Defendant was on 4 September 2006, which brings the Writ within six year limitation period.
  11. In view of what is stated at paragraphs 39 and 40 of this Judgment this Court holds that Plaintiff filed this within the limitation period and as such this action is not statute barred.

Res Judicata

  1. Defendant’s submission on this aspect totally unmeritorious for the following reasons:-

Court’s Analysis of Evidence and Finding

  1. During the Pre-Trial Conference parties agreed to following facts:-
  2. Before moving any further this Court wishes to address the issue that Defendant by his wife tried to portray an image that Plaintiff being a Solicitor tried to take advantage.
  3. This Court finds evidence of DW not that credible for the reason that she was very selective in answering questions in that she would agree to what she thought was to her advantage and would not agree or say she is not aware or did not understand matter which did not suit her.
  4. She did so to the extent that she refused to say the signature on the Agreement was Defendant’s or not.
  5. How could she say so when Defendant for whom she was giving evidence agreed through his Solicitors that Agreement was entered into by him and Plaintiff?
  6. DW was giving evidence that they did not know interest would be that much which was stated in the Statement of Account.
  7. As stated at paragraph 28 of this Judgment if Defendant had kept to his obligation to pay $260.00 per month from 20 August 1992, total interest payable would be much less and I would be surprised if it would exceed $4,000.00.
  8. In other words interest became “that much” only because of Defendant’s default.
  9. This Court also finds that the interest charged on the balance price was justified in that Vendor (Plaintiff) instead of getting lump sum payment gave Purchaser (Defendant) 5 to 7 years to pay the balance purchase price.
  10. This Court has no hesitation in finding that Defendant breached his obligation under the Agreement.

Has Defendant paid the full purchase price?

  1. There is no dispute that total amount owed by the Defendant towards the purchaser, price is $12,840 (excluding interest) which said sum is made up as follows:-

Deposit $ 1,000.00

Installment 11,840.00

$12,840.00


  1. Defendant by his witness claims that they paid $5,000.00 to Mrs Raman Singh towards the purchase price.
  2. Plaintiff denies that such payment being made.
  3. DW’s evidence is that she made this payment on Friday and was told by Mrs Raman Singh to collect receipt on Monday and Mrs Singh gave a note confirming receipt of $5,000.00 (last page of Exhibit P1).
  4. This Court takes note of the following:-
  5. The above facts/evidence came out during DW’s cross-examination.
  6. It is also noted that after DW in cross-examination stated that when they went to ask for the receipt they were chased out of the office. However, Defendant whether by himself, his wife (DW) or son continued making payments and obtaining receipt after 5 November 1995.
  7. In view of what is noted at paragraph 57 to 59 of this Judgment, assessing the demeanour of witness and absence of any tangible evidence to prove that $5,000.00 was paid by Defendant as alleged, this Court has no option but to reject Defendant’s assertion that $5,000.00 was paid to Mrs Raman Singh on 5 November 1995, or on a Friday.

Whether Plaintiff is entitled to vacant possession?

  1. Plaintiff is the registered proprietor of the Property.
  2. Plaintiff as Vendor has rescinded the Agreement in exercise of rights given to him under Clause 9(b) of the Agreement and Defendant has accepted the rescission on the condition that Plaintiff pay them the monies paid by Defendant towards purchase price and expenses.
  3. This Court takes note of the following:-
  4. On the basis of what is stated at paragraph 63 (i), (ii) and (vi) of this Judgment Plaintiff should refund some money to the Defendant.
  5. Since, the Agreement has been rescinded by Plaintiff and accepted by Defendant, Defendant has no right over the Property either beneficially or otherwise.

Costs

  1. Court takes into consideration that trial lasted for one day and both parties filed Submissions and assisted the Court during the proceedings.

Orders

  1. This Court orders that:-

K. Kumar
Chief Justice


At Suva
7 December 2021


Solicitors:
KOHLI & SINGH for the Plaintiff
SAMAD LAW for the Defendant

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2021/364.html