Kumar v Prakash [2023] FJHC 320; HBM42.2022 (22 May 2023)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

HBM 42 OF 2022

BETWEEN:

ANUR KUMAR of Lautoka.
APPLICANT/ ORIGINAL RESPONDENT

A N D:

JAI PRAKASH of Varavu, Ba.

RESPONDENT / ORIGINAL RESPONDENT

Appearances: Mr. Ruben for the Applicant
Mr. Prakash R. for the Respondent
Date of Hearing: 18 January 2023
Date of Ruling: 22 May 2023

R U L I N G

1. Before me is a Summons for Enlargement of Time filed by Anur Kumar. The summons is filed pursuant to Order 3 and 4 of the High Court Rules 1988. He seeks the following Orders:
   
   • (i) that time be extended to allow the Applicant to file notice of intention to appeal out of time against decision of Ba Magistrates Court’s Learned Magistrate Mr. Samuela D. Qica Civil Appeal 109 of 2021 (SCT 481 of 21) delivered on 20^th June 2022.
     
   • (ii) that time be extended to allow the Applicant to file grounds of appeal out of time get against the decision of Ba Magistrates Court Learned Magistrate Mr. Samuela D. Qica Civil Appeal 109 of 2021 (SCT 481 of 21) delivered on 20^th June 2022.
     
   • (iii) the determination of the Magistrates Court Order dated 20^th June 2022 upholding the Small Claims Tribunal Order dated 19^th November 2019 be stayed.
     
   • (iv) alternatively, an interim order for stay until the determination of this application.
     
2. An affidavit of Anur Kumar sworn on 17 October 2022 is filed herein support of the said summons. I summarize below the facts alleged in the said affidavit:
   
   • (i) Kumar is a Sale Representative for Laser Tech Electrical Services (“LTES”).
     
   • (ii) on 12 August 2020, Jai Prakash delivered a motor to LTES for repair. He paid the sum of $300 to LTES which LTES receipted.
     
   • (iii) at some point, LTES informed Prakash that the motor was beyond repair.
   • (iv) on 19 August 2020, Prakash then complained to the Fiji Competition and Consumer Commission against LTES.
     
   • (v) on 04 November 2020, the FCCS informed Prakash that his compliant against LTES was closed and that LTES had not breached any provision of the Fijian Competition and Consumer Act 2010.
     
   • (vi) on 23 November 2020, Prakash instituted proceedings against Kumar at the Small Claims Tribunal.
     
3. Kumar deposes in his affidavit that the SCT suit against him was “reckless” and “with malice” because Kumar was just an employee of LTES. According to him, when the matter was first called on 13 January 2021, LTES’ Manager Legal was in attendance. However, the SCT did not sit on that day and the matter was adjourned to 24 February 2021. I gather from this that Kumar was not present either at the SCT.
   
4. When the matter was called on 24 February 2021, there was no appearance by Kumar. Accordingly, the SCT entered default judgement against Kumar in the total sum of $4,828.00 and Ordered that this be paid by monthly instalments of $500.00 commencing 31 March 2021. The figure awarded was for “loss of income and motor repair”.
   
5. At paragraph 12 of Kumar’s affidavit he deposes that LTES the applied for a rehearing:
   

“That the Company applied for rehearing and the Tribunal was aware that the Respondent has sued a wrong person and despite this knowledge the Tribunal went ahead to enter default judgment when this matter was listed for rehearing on 10^th November 2021 and due to non-appearance of the company the Tribunal re-instated the default order. Annexed hereto and marked with the letters “AK8” is a copy of rehearing rejection order dated 24^th February 2021”.

1. The Company LTES applied for a rehearing.
2. The matter was listed for rehearing on 10 November 2021.

100. LTES did not appear.

4. The Tribunal therefore reinstated the default order.
   

6. At paragraph 13, Kumar appears to suggest that LTES did in fact appear at the SCT premises on 10 November 2021 but the matter was not on the cause list. LTES then inquired at the SCT Registry and was told that the matter had been called earlier that morning following which default judgment was then entered on account of LTES non-appearance.
   
7. Prakash then filed a Judgement Debtor Summons against Kumar on 15 November 2021.
   
8. After accepting service of the JDS, Kumar then instructed Vijay Naidu and Associates to file an application to stay the JDS and file leave to appeal out of time against the default judgment and set it aside.
   
9. It appears that the instructions were given in or around February 2022, which was some three months after the second default judgment and JDS proceedings.
10. The Ba Magistrates Court however refused the appeal on 20 June 2022 and directed inter alia that the parties should consider applying to the SCT to set aside the default judgment. In doing so, the Learned Magistrate was relying on Wonderland Real Estate v Asesela Batikalou, Civil Appeal HBA 06 of 2012.
    
11. Kumar maintains at paragraph 16 of his affidavit that the SCT erred in law in:
    

“...accepting me as the Respondent when clear evidence was present before the Tribunal that the rightful party to this claim was the Company”

12. He deposes at paragraph 17 that the Learned Magistrate:
    

“...erred in law and fact by failing to consider the fundamental principal of the claim that the current Respondent original application failed to initiate the cause of action against the right party in this case the Company”.

13. I have read the submissions filed by S Nand Lawyers for the appellant. Below are the key points in their case:
    
    • (i) the Learned Magistrates was wrong to rule that he did not have powers to enlarge time
      
    • (ii) Prakash’s claim was bad in law. The contract in question was between Prakash and LTES
      
    • (iii) the Magistrate should therefore have considered the fact that there was no privity of contract between Prakash and Kumar.
      
    • (iv) the Magistrate was wrong in thinking that the SCT has power to set-aside default judgement and in that regard, had misapplied the ratio in Wonderland Real Estate v Asesela Batikalou – Civil Appeal HBA 06 of 2012.
      
    • (v) section 17 of the Small Claims Tribunal Decree stipulates that the SCT’s decision is final
      
    • (vi) the SCT erred in its ruling against Kumar when there was no evidence to support such a finding
      
    • (vii) the SCT should have directed Prakash to sue LTES
      
    • (viii) there had been a complete misrepresentation to the SCT by Prakash
      
14. I have also read the submission of Niudamu Lawyers which, in summary, highlights the following points:
    
    • (i) a default judgment in the SCT cannot be appealed. Rather, an application to set it aside must be made.
      
    • (ii) Kumar had applied for a rehearing at the SCT which was struck out, again, for non-appearance.
      
    • (iii) there is no provision in the SCT Act to set aside default judgment. The Act only contains provisions for rehearing under section 32 (1) and (2) and taking into account Section 15 (6) or Section 31 (2).
      
15. I endorse the submissions of Niudamu Lawyers and also the observations of the Learned Magistrate.
    
16. I observe from the records that the Applicant’s case theory appears to be based on the principal argument that he was merely an employee of LTES and that the right party to be sued at the SCT was his employer LTES.
    
17. It appears to me that the customer (Prakash) decided to sue Kumar (employee of LTES) as it was Kumar who personally dealt with him. In my view, Prakash is entitled to pursue the claim against Kumar if he felt that Kumar was personally liable. On the other hand, if Kumar felt that LTES should be vicariously liable for any judgement entered against him, then he should have taken steps to join LTES. In order to do that, he should present himself before the SCT.
    
18. I refuse leave. Costs to the Respondent which I summarily assess at $1,000.
    

...............................
Anare Tuilevuka.
JUDGE

22 May 2023