Abdul Afiz Motors Ltd v Lal (trading as All Ways) [2021] FJHC 420; HBE13.20019 (9 April 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
COMPANIES JURISDICTION

COMPANIES ACTION NO.: HBE 13 OF 2019

IN THE MATTER OF a Statutory Demand dated 12 February 2019 taken out by Reshmi Lata Lal t/a All Ways Investment against ABDUL AFIZ MOTORS LIMITED and served on the Applicant on 12 February 2019.

AND

IN THE MATTER of an application by the Applicant for an order setting aside the Statutory Demand pursuant to Section 516 of the Companies Act

AND

IN THE MATTER of the Companies (Winding Up) Rules, 2015.

BETWEEN : ABDUL AFIZ MOTORS LIMITED
APPLICANT

AND : RESHMI LATA LAL t/a ALL WAYS

INVESTMENT
RESPONDENT

APPEARANCES/REPRESENTATION
APPLICANT : Mr J. Singh [Anil Singh Lawyers]

RESPONDENT : Mr A Singh [A.K. Singh Law]

RULING BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 09 April 2021

JUDGMENT

1. The Applicant Abdul Afiz Motors Limited seeks orders that the statutory demand dated 12^th February 2018 served by the Respondent be set aside.
   

The said application is made pursuant to Section 516 of the Companies Act and is supported by an affidavit of Abdul Afiz sworn on 15^th February 2019.

2. The Respondent filed her affidavit in opposition on 03^rd April 2019 with the Applicant filing it’s reply on 17^th April 2019.
   
3. The Applicant Company sells second had truck parts and also does repair work on trucks.
   

According to the Applicant, it had repaired a vehicle for the Respondent where a dispute arose after the final delivery of the vehicle to the mortgagee of the vehicle.

The Ruling via High Court Civil Action number 113 of 2011 claimed from the Applicant monies in sum of $180,475 being payments made to the Applicant for repair of the vehicle FI 203, cost of repairs to the said vehicle after the Application allegedly damaged it and for loss of business at $10,000 per month from September 2010 to December 2010 and January 2011 to April 2011.

The High Court after hearing the parties found the Respondent was not entitled to recover the entire sum paid to the Applicant. However she was entitled to recover the loss she suffered for not being able to use the vehicle.

The Applicant was ordered to pay to the Respondent a sum of $36,000 with interest at 6%.

Upon the Applicant’s instruction it’s counsel filed an appeal against the decision of the High Court which matter is still pending before the Court of Appeal. There was a stay application filed with the Court of Appeal.

The application was struck out due to non-service of documents within the 42 days.

Subsequently it’s solicitors filed necessary application for extension of time to file Notice of Appeal out of time.

The said application was listed for hearing on 15^th March 2019 however on 12^th February 2019 the company was served with the Statutory Demand dated 12^th February 2018.

According to the Applicant, the demand notice pre-dates the judgment debt and is in itself defective.

If the demand notice is not set aside the Applicant will be prejudiced causing it harm and hardship.

4. According to the Respondent, the Applicant was to file its application for leave out of time by 28^th January 2019 but filed it on 30^th January 2019.
   

There is no stay granted for the High Court order hence she instructed her solicitors to proceed with the filing of the winding up petition.

The judgment by the High Court was delivered on 20^th November 2018 and there is a typing error in the date mentioned in the notice which should read 2019.

5. Upon a search with the Court of Appeal registry it has come to my notice that on 29^th November 2019 the Court of Appeal delivered a Ruling on the Applicant’s application for enlargement of the tome to appeal and stay of execution of the judgment of the High Court ruling dated 20^th November 2018.

The Court of Appeal had upon hearing the application granted a stay of execution of the Judgment dated 20^th November 2018.

6. The demand notice so served by the Respondent is for outstanding judgment amount ordered by the High Court on 20^th November 2018.
   
7. With there been a stay of execution granted I find its only proper that the Statutory Demand ought to be set aside. Hence orders are made accordingly. The Statutory Demand dated 12 February 2018 is set aside.
   
8. Parties to bear own costs.
   

.................................
Vandhana Lal [Ms]
Acting Master
At Suva.

09 April 2021

TO:

1. Suva High Companies File No. HBE 13 of 2019;
2. Anil Singh Lawyers, Solicitors for the Plaintiff;
3. A.K. Singh Law, Solicitors for the Defendants.