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Lata v International Fabrics (NZ) Ltd [2025] FJHC 652; HBA22.2023 (22 September 2025)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA,
CIVIL APPELLATE JURISDICTION


CIVIL ACTION NO. HBA 22 OF 2023


In the matter of an Appeal against the Ruling dated and pronounced on 21st April 2023
by the Magistrate’s Court of Nadi in the Bankruptcy proceedings bearing No-27 of 2000


BETWEEN:
BRIJ LATA
as Administratrix of the Estate of Ramendra Datt aka Ramendra Dutt.
APPELLANT
(PLAINTIFF / JUDGMENT DEBTOR)


AND:
INTERNATIONAL FABRICS (NZ) LIMITED (In Receivership),
a limited liability company having its registered office in New Zealand
FIRST RESPONDENT
(1ST DEFENDANT/JUDGMENT CREDITOR)


AND:
THE OFFICE OF THE OFFICIAL RECEIVER
Top Floor, Westfield Building, Tukani Street, Lautoka.
SECOND RESPONDENT
(ORIGINAL 2ND DEFENDANT)


BEFORE:
A.M. Mohamed Mackie- J.


COUNSEL:
Mr. K. Chand, with Ms. Kumar S, for the Appellant.
Ms. Vanua, for the 1st Respondent (Non active Role).
Mr. S. Kant (State Counsel) for the 2nd Respondent.


DATE OF HEARING:
4th June 2025.


DATE OF RULING:
22th September 2025.


JUDGMENT
(On Appeal)


  1. INTRODUCTION:
  1. This is an Appeal arising out of the Ruling dated and pronounced by the learned Magistrate of Nadi (“the Magistrate”) on 21st April 2023, after considering three (3) different Applications that had been preferred by the Plaintiff – Judgment Debtor – Appellant (hereinafter sometimes called and referred to as (“the Appellant”), seeking the reliefs prayed for in each Application, as follows.

The 1st Application:


  1. By his first Application, by way of Ex- Parte Notice of Motion dated 20th April 2021 and filed on 7th May 2021, the Appellant had sought, inter alia, the following Orders against the original 2nd Defendant/ 2nd Respondent (hereinafter sometimes called and referred to as (“the 2nd Respondent”), who is the Official Receiver of the wounded-up 1st Defendant -Judgment Creditor/ 1st Respondent (hereinafter sometimes called and referred to as (“the 1st Respondent”).
    1. AN injunction stopping the release of funds by the Official Receiver to the 1st Defendant, its solicitors, servants and/or agents until the determination of this action.
    2. THAT costs in this application be in the cause; and
  2. The above Application was supported by an Affidavit sworn by PRAMENDRA DUTT, trading as RR DUTTS FURNITURE & JOINERY, (the Appellant) and it was made pursuant to Order XX VI part iv of the Magistrate’s Court Rules Cap 14. The Appellant also relied on the decided case law authority in American Cyanamid Co .v. Ethicon Limited [1975] UKHL 1; (1975) AC 396.

The 2nd Application:


  1. By his Second Application, by way of an Inter-Parte Notice of Motion dated 20th July 2021 and filed on 23rd July 2021, the Appellant had sought against the 2nd Respondent Official Receiver, inter alia, the following Orders;
    1. THAT the Plaintiff / Judgment Debtor seeks further Orders that the funds held with the office of the Official Receiver (2nd named Defendant) are being transferred to the Plaintiff / Judgment Debtor’s Bank of Baroda Account Number; 910404022.
    2. THAT the Plaintiff/ Judgment Debtor suffers irreparable loss and damages as the funds are held with the office of the Official Receiver as this would cause the Plaintiff/ Judgment Debtor with great hardship, financial loss, resulting in unnecessary stress and depression for all concerned.
    1. THAT the costs in this application be in the cause.
  2. The above Application also was supported by an Affidavit sworn by the Appellant, for which he relied on Bankruptcy ACT (Chapter 48) Section 28 (1) Discharge of Bankruptcy and Limitation Act (Cap 35), Section 4 (2) - Limitations of actions of contract and tort, and certain other actions.
  3. The said Application was amended by an Inter-Parte Notice of Motion dated 15th March 2022 and filed on 21st March 2022, whereby the Orders relied on were amended to be under Order xxvi of the Magistrate’s Court Act (Cap 14) and Section 101 (3) of the Bankruptcy Act (Chapter -48).

The 3rd Application:


  1. By his Third Application, being an Inter-Parte Notice of Motion dated 7th April 2022, filed on 12th April 2022 and supported on 22nd April 2022, the Appellant had sought the following Orders, inter alia;
    1. THAT an Order dismissing 2nd Defendant’s Motion, which was filed on 08th December 2021. (Striking out Application)
    2. THAT the Plaintiff / Judgment Debtor seeks that the funds held with the Office of the Official Receiver (2nd Defendant), be transferred to the Plaintiff / Judgment Debtors Bank of Baroda Account Number: 910404022.
    3. THAT Costs of this application be in the cause.
  2. This Application was also supported by an Affidavit sworn by the sad RAMENDRA DUTT, and made pursuant to Order xxvi of the Magistrate’s Court Act (Cap 14) Section 4(4) of the Limitation Act (Cap 35) and Order 46 of the High Court rules 1988.
  3. In the meantime, on 08th December 2021, on behalf of the 2nd Respondent Official Receiver, the Hon. Attorney General had filed a Notice of Motion supported by the Affidavit of SHAWLEEN PRASAD ( the Official Receiver), seeking to strike out the Appellant’s said Ex-Parte Notice of Motion filed on 7th May 2021 and the Inter-Parte Notice of Motion filed on 23rd July 2021, on the grounds that there is no reasonable cause of action , it is scandalous , frivolous or vexatious and it is otherwise an abuse of process of this Court, by relying on, inter alia, the Order 18 Rule 18 (1) (a) (b) and (c) of the High Court Rules 1988.
  4. It was after hearing all the above Applications, the learned Magistrate by her impugned Ruling dated 21st April, 2023 made the following Orders.
    1. After analysing the arguments brought by the Plaintiff / Judgment Debtor based on the Limitation Act, I believe as per the Magistrate’s Court Rules 1945 the Plaintiff / Judgment Debtor cannot maintain this interlocutory application without having a prima facie case.
    2. I believe the Plaintiff / Judgment Debtor is now not qualifying to seek remedy under Section 28 (1) of the Bankruptcy Act of 1944 and the Plaintiff / Judgment Debtor had not acted in a timely manner in compliance with section 100 of the Bankruptcy Act.
    3. Therefore, I rule that the ex-parte motions and affidavits filed by the Plaintiff / Judgment Debtor on 7th May 2021, and inter-parte motion and affidavit filed on 23/ 7/ 2021 and again on 22/ 4/ 2022 are irregular.
    4. Therefore, I vacate the interim orders imposed by this Court on 20th / 4/ 2021.
    5. No costs orders granted.
  5. It is against the above Orders of the Magistrate, the Appellant, having filed his Notice of Intention of Appeal on 25th April 2023, filed his following, purported, Grounds of Appeal on 16th May 2023.
  1. GROUNDS OF APPEAL:
  1. The Appellant's Grounds of Appeal against the Impugned Ruling are as follows:

(‘Ground-1’- Irregular Dismissal of the Application;)


  1. The Learned Magistrates erred in law and in fact by dismissing the Appellant's application on the basis of improper service of application to the First Respondent, despite the acknowledgment by the First Respondent's Solicitors Messrs. Young & Associates and their appearance was without instructions.

('Ground 2'- Failure to Consider untraceable Files)


  1. The Learned Magistrate erred in law and in fact by failing to consider that the files for Civil Action No. 85 of 200 and Bankruptcy Action No. 27 of 200 cannot be located by the Registry which would had shown that the Respondents have taken no steps in enforcement of its judgment, 18 years after the Receiving Order.

('Ground 3'- Improper Dismissal of Application:)


  1. The Learned Magistrate erred in law and in fact by dismissing the Appellant's application seeking proceeds to be transferred to the Appellant's bank account without proper consideration of the evidence presented, and by stating that there is no prima facie case as the motions are irregular.

('Ground 4' Failure to Consider Ex-Parte Notice of Motion and Affidavit)


  1. The Learned Magistrate erred in law and in fact by failing to consider that the Appellant filed the Ex-parte Notice of Motion and Affidavit in 7 May 2021 in the substantive matter of Civil Action No. 85 of 2000 and were not required to be filed under a fresh writ of summons.

('Ground 5' – Statue Barred Enforcement;)

  1. The Learned Magistrate erred in law and in fact by failing to consider that the Second Respondent is statute barred from enforcing the Receiving Order, as per section 4(4) of the Limitation Act 1971.

('Ground 6'- Statute of Limitations:)


  1. The Learned Magistrate erred in law and in fact by considering that the Second Respondent had exercised their statutory powers to release the proceeds to the First Respondent after a lapse of 18 years from the date of the Receiving Order. The Second Respondent's action were unlawful.

('Ground 7- Misapplication of Law ')


  1. The Learned Magistrate erred in law and in fact by misconstruing the Limitation Act 1971 and dismissing the Appellant's application.

('Ground 8- Sworn Proof of Debt with Added Costs ')


  1. The Learned Magistrate erred in law and in fact by failing to consider that the First Respondent's Solicitors had sworn the Proof of Debt on 7 April 2021 without holding instructions from the First Respondent and had added solicitors’ costs in the sum of $1000.00 which was not included in the Consent Order dated 16 August 2000 resulting in an increase in the debt. The Proof of Debt is invalid and should not be considered by any Court of Law.

('Ground 9- Legal Standing on the First Respondent Company')


  1. The Learned Magistrate erred in law and in fact by failing to consider that the First Respondent company was a defunct entity at the time of the Appellant's application on 7 May 2021 and had no legal standing in the distribution of the proceeds.

(‘Ground 10’- No evidence of Review, Recession, or Variation of the Receiving Order)


  1. The Learned Magistrate erred in law and in fact by failing to consider that the Appellant had acted in a timely manner in compliance with section 100 of the Bankruptcy Act 1944 and that there was evidence furnished to show that an application was made on 17 September 2002 to rescind the Receiving Order dated 21 August 2002.

(‘Ground 11’- Failure to provide Evidence of Advertisement of the Receiving Order)


  1. The Learned Magistrate erred in law and in fact by failing to consider that the Second Respondent did not provide evidence of advertisement of the Receiving Order in the Gazette in Fiji, either by the First Respondent or its solicitors as required by statute.

(‘Ground 12 '- Violation of Natural Justice)


  1. The Appellant submits that the Learned Magistrate violated the principles of natural justice and due process by dismissing the Appellant's application without proper consideration of the arguments raised.

(‘Ground 13’- )


  1. The Learned Magistrate erred in law and in fact by neglecting to consider that the reliefs sought in each Motion were distinct and separate., Specifically, the Inter-Parte Notice of Motion filed on 13 April 2022 was done so in accordance with the Learned Magistrate's directives, who stated that 'any Affidavit in Opposition must be filed with a supporting motion'.

('Ground 14'-)


  1. The Learned Magistrate erred in law and in fact by failing to consider all of the relevant facts and circumstances of the case and that the ruling was therefore flawed. The Leaned Magistrate made errors of law in interpreting and applying Bankruptcy Act 1971 and other relevant legislation.
  1. BACKGROUND HISTORY / SEQUENCE OF EVENTS:
  1. For the sake of lucidity and easy comprehension, let me narrate bellow the history and the events that had unfolded before the Magistrate’s Court of Nadi in relation to this Appeal. For this purpose, one must go back to the period from 21st April 2023, being the date of impugned Ruling by the Magistrate, to the year 2000, the year when the substantive action bearing No-85 of 2000 was commenced under the name and style of INTERNATIONAL FABRICS (NZ) LIMITED V RAMENDRA DUTT (F/N Ram Dutt) Trading as R.R DUTTS FURNITURE & JOINERY.
  2. As the Original record in the above styled action No-85 of 2000 was said to be missing, the history is traced from the copies of the relevant crucial documents submitted to the Magistrate Court, along with an Affidavit sworn by one USHA KUMAR employed by Messrs. Young and Associates. This was filed before the Magistrate on 10th February 2022 pursuant to the leave granted by the Magistrate on 16 December 2021 to the Young & Associates, who had initially acted as Solicitors in the said action for the International Fabrics (NZ) Limited, the 1st Respondent, which is now under Receivership.
  3. The said Affidavit, together with all crucial documents in the said substantive original action No-85 of 2000, has gone into the record of this case No- 27 of 2000 (bankruptcy Proceedings), without any objection from the Appellant’s Solicitors, before the Magistrate, who made the impugned Ruling hereof. The relevant Affidavit and those annexures are found from pages 215 to 358 of the Volume 1of the copy record. As per the said Affidavit, following are some of the papers filed in the said action No-85 of 2000, which reveal the sequence of events therein and the outcomes thereof;
    1. The writ of Summons and a Claim bearing No- 85 of 2000 dated 4th May 2000 filed on the same date by Messrs. Young & Associates on behalf of International Fabrics (NZ) Limited (the 1st Respondent), against Ramendra Dutt T/A R.R. Dutts Furniture & Joinery ( the Appellant) claiming a total sum of $8,005.15 (Eight Thousand Five Dollars and Fifteen Cents ) on account of supply of Fabrication to the Appellant by the 1st Respondent till the period ending in December 1998. (Vide – UK-1)
    2. On behalf of the Appellant, Messrs. PATEL AND SHARMA LAWYERS filed the Notice of Intention to Defend dated 20th June 2000 and served it on the 1st Respondent’s Solicitors on 21st June 2000. (Vide -UK-2)
    1. A consent judgment was entered by and between the parties represented by their respective counsels on Wednesday 16th August 2000 before the then Magistrate Hon. David Balram, for the payment of $8,005.15 by the Appellant RAMENDRA DUTT in the installment of $350.00 commencing from 1st September 2000. The Orders in the consent Judgment were sealed on 6th October 2000. (Vide – UK-3)
    1. As the Appellant, RAMENDRA DUTT, had failed to comply with the consent judgment, the Plaintiff therein, namely, INTERNATIONAL FABRICS (NZ) LIMITED ( “the First Respondent hereof) commenced bankruptcy Proceedings under action No- 27 of 2000 by filing the Bankruptcy Request dated 15th November 2000 on 20th November 2000. (Vide- UK -4)
    2. The Bankruptcy Notice dated 20th November 2000 was issued. (Vide -UK-5). A copy of the Affidavit verifying the Bankruptcy Petition was also filed and issued (Vide – UK-6).
    3. The Bankruptcy Petition, along with the connected documents, was served on the Judgment Debtor, RAMENDRA DUTT (the Appellant), on 31st January 2021. (Vide-UK-7)
    4. The Appellant, RAMENDRA DUTT, acknowledged the debt and agreed to pay it in installment of $1,000.00 per month from 15th February 2001 until the whole sum is paid, along with a further sum of $750.00 being the costs for the Bankruptcy proceedings. (Vide – UK- 8).
    5. A Notice dated 26th July 2001, for the hearing of the Bankruptcy petition No-27 of 2000 on 15th August 2001, was filed on 30th July 2001 (Vide -UK-9). As per the Affidavit of service filed on 24th August 2001, the said Notice was served on the Judgment Debtor RAMENDRA DUTT on 7th July 2001. (Vide -UK-10).
    6. The Notice of Appointment of Solicitors dated 19th September 2001 on behalf of the Judgment Debtor RAMENDRA DUTT was filed by Messrs. G.P. SHANKAR & Co and served on the Judgment Creditor’s Solicitors (the 1st Respondent) on 21st September 2001. (Vide-UK-11).
    7. A Notice dated 19th September 2001 on the hearing of an application made by Messrs. Shankar & Co, on behalf of the Judgment Debtor, RAMENDRA DUTT , seeking to set aside the consent judgment in action No- 85 of 2000, was filed on 20th September 2001 (Vide -UK-12).
    8. An Affidavit sworn by RAMENDRA DUTT in support of his setting aside Application, along with his proposed Defence in the said action No- 85 of 2000, was also filed on 20th September 2001. (Vide-UK- 13).
    1. An Affidavit sworn by the Judgment Debtor, RAMENDRA DUTT was filed in the Bankruptcy Proceedings No- 27 of 2000 , along with papers filed by him to have the consent judgment in action No-85 of 2000 set aside on the basis that it was a default judgment. (Vide -UK-14).
    1. An Affidavit in Reply sworn on the 2nd July 2002 by one RAJESH KUMAR, a Clerk at Messrs. Young & Associates, was filed on 4th July 2002, along with annexures “RK-1 to “RK-9”. (Vide -UK-15).
    2. An Affidavit of Service of the Notice of Adjournment of the hearing on RAMENDRA DUTT, the Judgment- Debtor, was filed. (Vide -UK-16).
    3. Another NOTICE OF MOTION by Messrs. SHANKAR & CO on behalf of the Judgment Debtor, RAMENDRA DUTT, was filed on 12th August 2002 seeking to set aside / vacate the consent judgment entered in the action No-85 of 20000. (Vide UK-17). ( 2nd Application for setting aside)
    4. An Affidavit sworn by RAMENDRA DUTT in support of his said 2nd setting aside Application, along with his proposed Defence, in the said action No- 85 of 2000, was filed on 12th August 2002. (Vide-UK-18).
    5. An Affidavit verifying Debt sworn on 20th August 2002 by RAJESH KUMAR in the Bankruptcy Proceedings No-27 of 2000, was filed on 21st August 2002. (Vide-UK -19).
    6. Another NOTICE OF MOTION dated 26th August 2002 was filed by Messrs. G.P. SHANKAR & Co, on 17th September 2002, on behalf of the Appellant RAMENDRA DUTT , seeking to have the Receiving order entered in the Bankruptcy Proceedings No-27 of 2000 RESCINDED. (Vide-UK-20). (The 3rd Application)
    7. An Affidavit in support sworn by RAMENDRA DUTT on 17th September 2002 in support of the aforesaid NOTICE OF MOTION, was also filed on 17th September 2002. (Vide-UK-21).
    8. The RECEIVING ORDER entered on 21st August 2002 before then Magistrate Hon. DAVID BALRAM and sealed on 2nd October 2002, was served on the 2nd Respondent OFFICIAL RECEIVER on 25th October 2002. (Vide-UK-22).
    9. An Affidavit in opposition to RECEIND the Receiving Order and to the Stay, sworn by RAJESH KUMAR on 31st October 2002, was filed on 5th November 2002 along with a copy of the authority granted to him by the 1st Respondent- the Plaintiff in action No-85 of 2000 marked as “RK-1” (Vide – UK-23).
    1. A further NOTICE OF MOTION dated 13th November 2002 was filed on behalf of the Appellant RAMENDRA DUTT on 13th November 2002 in action No- 85 of 2000, through Messrs. G.P. SHANKAR & CO, seeking to defend and set aside the action and stay pending the determination of the action. (The 4th Application) This was served on the Plaintiff 1st Respondent’s Solicitors Messrs. Young & Associates on 18th November 2002. (Vide- UK-24).
    1. An Affidavit in support of the said Notice of Motion sworn on 11th November 2002 by RAMENDRA DUTT, was filed along with his draft Statement of Defence on 13th November 2002 and served on the Plaintiff’s (1st Respondent’s) Solicitors on 18th November 2002. (Vide-UK-25).
    1. The NOTICE OF JUDGMENT dated 19th July 2004 given to the Judgment Debtor RAMENDRA DUTT, by the Nadi Magistrate’s Court Registry, in Bankruptcy Proceedings No- 27 of 2000, with copy to the Judgment Creditor’s Solicitors, was filed. (Vide-UK-26).
    1. Five (5) letters sent by Messrs. HARI RAM Lawyers, who had acted as agents for Messer. Young & Associates, before the Nadi Magistrate’s Court in the said Bankruptcy Proceedings No-27 of 2000, informing as to what had transpired before the Court when the matter was called on several instances. (Vide-UK-27).
  4. The aforesaid Affidavit of USHA KUMAR and the documents annexed thereto marked from “UK-1” to “UK-27”, as described in paragraphs 17 A” to “Y” above have assisted the Magistrate and this Court in ascertaining as to what really had happened in the substantive action bearing No- 85 of 2000, as the original case record thereof has gone missing. It is also to be noted that the Original Case record in the Bankruptcy proceedings No- 27 of 2000 is also said to be missing and what is before this Court is the duplicate of it.
  5. I find that the Volume I of the Copy record includes, among other papers, all 3 said Applications preferred by the Appellant, the striking out Application preferred by the Hon. Attorney General on behalf of the Official Receiver before the Magistrate, the aforesaid Affidavit sworn by USHA KUMAR, and documents annexed thereto in relation to the initial action No-85 of 2000.
  6. I also find that the Volume ii of the Copy Record is composed of, inter alia, the Applications commencing from the INTER -PARTE NOTICE OF MOTION filed on 21st March 2022 by the Appellant Judgment Debtor RAMENDRA DUTT in Bankruptcy Proceedings No-27 of 2000 - up to the Order of the subsequent Magistrate Ms. SHELYN KIRAN on 21st August 2023 making the substitution in place of deceased RAMENDRA DUTT, and sealed on 31st August 2023.
  7. At the expense of verbosity, this Court has taken pain in narrating the history of these proceedings as above, in order to highlight as to how and to what extent the Appellant had lied, manipulated and abused the process at the expense of the judgment Creditor, the Official Receiver and the system at large.
  1. THE LAW:
  1. The Laws sought to be applied in determination of all Applications before the Magistrate Court and before this Court are pleaded in the respective Applications.
  2. However, it is observed that the Appellant’s Counsel , before the Magistrate and this Court, have heavily relied on the Section 4(4) of the Limitation Act, the Sections 28 (1) and 101 (3) of the Bankruptcy Act in support of their Applications and Appeal. I will reproduce bellow, those Sections in the Limitation Act and Bankruptcy Act respectively for the sake of easy reference.

A-Actions of contract and tort and Certain Actions (Limitation Act)

Limitation of actions of contract and tort, and certain other actions


4.-(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

(2) ..........

(3) ...........

(4) An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due. (Emphasis Mine)


Discharge of Bankrupt


28.-(1) A bankrupt may, at any time after being adjudged bankrupt, apply to the court for an order of discharge, and the court shall appoint a day for hearing the application, but the application shall not be heard until the public examination of the bankrupt is concluded. The application shall, except when the court in accordance with rules under this Act otherwise directs, be heard in open court.


Discretionary power of court (Bankruptcy Act)


101.-(1) Subject to the provisions of this Act and to general rules, the costs of and incidental to any proceeding in court under this Act shall be in the discretion of the court.


  1. THE ANALYSIS:
  1. Before delving into the, purported, Grounds of Appeal, in my view, a careful perusal of the history, and the events that took place before the Magistrate’s Court, which are enumerated under paragraph 17 above, would clearly demonstrate as to what really occurred before the Magistrate’s Court and how the substantive action bearing No-85 of 2000 and the subsequent Bankruptcy proceedings bearing No-27 of 2000 were dealt with and terminated. This would throw enough light for the disposal of this Appeal, with no further requirement to deeply delve into the merits or demerits of those, purported, grounds of Appeal. The reason as to why I describe those grounds as “purported” would also will stand justified at the end of this judgment.
  2. It is clear that all Notice of Motions preferred by the Appellant before the Magistrate Court, in relation to the impugned Ruling, were interlocutory Applications in nature. The first Application was the Ex-Parte Notice of Motion filed on 7th April 2021 seeking an injunctive Order against the Official Receiver to stop the release of funds that had been credited to his account pursuant to the Receiving Order issued in the Bankruptcy proceedings No- 27 of 2000, unto to the Judgment Creditor.
  3. Though, the said Ex-Parte Notice of Motion and the contents of the Affidavit in support thereto and the relief sought therein were directly connected to the said Bankruptcy Proceeding bearing No- 27 of 2000, for the reason best known to the Appellant’s Solicitors Messrs. Pillai Naidu & Associates, instead of referring to the said Bankruptcy Proceeding No-27 of 2000, made the said Application seeking a new case number by describing it as “Miscellaneous Action ...of 2021” and naming the Appellant as the “Plaintiff”. However, the Senior Court Officer at the Magistrate Court Registry, on his own wisdom, without assigning a new number, very correctly allowed the papers to be filed and numbered under the same Bankruptcy Proceeding No- 27 of 2000. There was no an indication of filing an action by way of Writ or Originating Summons, seeking any substantive relief.
  4. While it was obvious, that the Bankruptcy Proceedings bearing No-27 of 2000 and the initial writ action bearing No-85 of 2000 between the parties had been finally adjudicated and disposed by the then Magistrate, the Appellant’s Solicitors, being aware of it or when there were multiple ways for them to be aware of it, proceeded to file this Ex-parte Notice of Motion seeking injunctive Order as aforesaid. Further, this was done when no substantive matter was either pending or to be filed before the Magistrate. It is also to be observed that with the termination of the Bankruptcy proceedings and the commencement of Official Receiver’s duties, the Magistrate had become functus. Therefore, in my view, filing of this Ex-parte Notice of Motion for injunctive Orders by the Appellant at that stage was an unwarranted move, and it was clear abuse of process.
  5. In Rohit Prakash v Rajesh Chandra & Others – Civil Action No- 177 of 2020 (26th September 2022) Hon. Seneviratne-J (as he then was) in dismissing an Originating summons seeking an interim injunction, without any final relief being pleaded , stated as follows.

“Interim injunction is a relief that cannot be granted solely or independently without any final or substantive relief. A party who has not sought any substantive relief has no right in law to seek an interim injunction, as it cannot be a relief by itself but is only a mechanism to assist and protect final relief”


  1. The above position of law was affirmed by the Court of Appeal in Bennadette v Leela Wati and others – Civil Appeal No-ABU 77 of 2022 (26 July 2024), wherein the Appeal was allowed.
  2. The most remarkable factor , which fundamentally tainted the proceedings before the Magistrate , and amounted to the abuse of process , was not only the several false averments by the Appellant, RAMENDRA DUTT, in his Affidavit sworn on 20th April 2021 in support of his said Ex-Parte Notice of Motion, but also the incorrect and misleading submissions deliberately made by the Appellant’s Counsel during his oral submissions when he supported the Ex-parte Notice of Motion for injunctive order on 10th May 2021, which had unduly prompted the Magistrate at that juncture to issue the ill-fated injunction Order.
  3. The Appellant in his said Affidavit in support had gone to the extent of suppressing his initial representation by Messrs. PATEL & SHARMA in the substantive action No-85 of 2000 before the Magistrate, and uttering further lies that he did not attend any Court matters relating to Bankruptcy Proceedings No-27 of 2000, which are now found to be a calculated move taken by him to mislead the Magistrate.
  4. The Appellant’s Solicitors, Messrs. Pillai Naidu Associates, at the time of making their ill-fated Applications before the Magistrate may not have been aware of the final outcome in the substantive action No-85 of 2000, that of the subsequent Bankruptcy proceedings No-27 of 2000 and about the 4 different Applications that had been made by Messrs. Shankar & Co on behalf of the Appellant before the Magistrate, due to the missing and unavailability of both the original case records.
  5. But, as and when the copies of the crucial documents in the action No- 85 of 2000 was submitted to the Court with an Affidavit by the 1st Respondent’s Solicitors with the leave of the Magistrate , and when the Case record in the Bankruptcy proceedings was reconstructed ( Duplicate Copy) , the Appellant’s Solicitors should have become aware of the history and ought to have had their second thought as to the propriety in continuing with their 3 subsequent Application before the Magistrate , or at least should have decided not to commence and continue with this frivolous Appeal , which is a clear abuse of process as per what has been revealed.
  6. The annexures marked as “UK-1”, “UK-2” and “UK-3 to the Affidavit of USHA KUMAR found in page 215 of the Volume 1 of the Copy records, clearly show the sequence of events unfolded before the Magistrate. In that process, firstly, the Substantive Action bearing Number 85 of 2000 was filed by the 1st Respondent against the Appellant on 4th May 2000, for which Messrs. PATEL & SHARMA had filed their Notice of Intention to Defend for the Appellant on 20th June 2020 and finally a consent judgment therein was duly entered on 16th August 2000 before the then Magistrate Hon. David Balram, with the presence of both parties and their respective counsels. As per the consent judgment, the Appellant had agreed to pay a monthly installment of $350.00. The Orders in this consent judgment were sealed on 6th October 2000. (Vide pages 221 to 230 of the volume 1 of the Copy record)
  7. However, this consent judgment being observed in breach by the Appellant, the solicitors for the Plaintiff- Judgment Creditor in the said action No- 85 of 2000, Messrs. Young & Associates, commenced the Bankruptcy Proceedings No- 27 of 2000 by filing papers on 20th November 2000 as evidenced by annexures marked as “UK-4” to “UK-7” to the Affidavit of USHA KUMAR (vide pages 231 to 253 of the volume 1 of the copy Record).
  8. The Receiving Order was made on 21st August 2002 and sealed on 2nd October 2002, on which, the Official Receiver commenced his duties. Vide pages 125 to 127 of the copy record.
  9. It is also on record, as per the annexure “UK-8” to the USHA KUMAR’s Affidavit, that the Appellant on 2nd February 2001, also had admitted the liability and agreed to pay the said judgment sum of $8,005.17 by signing a memo in the installment of $1,000.00 per month, together with a cost in a sum of $750.00. This settlement arrangement also was not complied with by the Appellant. (Vide page 255 of the volume 1 of the copy record)
  10. The copy record also reveals that, on 4th September 2020, Messrs. G.P Shankar & Co had come on record for the Appellant and filed 4 different Applications before the Magistrate in the following manner, which were also found to be frivolous.
    1. Notice dated 19th September 2021, supported by the Affidavit of the Appellant RAMENNDRA DUTT and his draft Defence, as per the annexure “UK-12 & “UK-13”, seeking to set aside the consent judgment entered in the substantive action No- 85 of 2000. The Appellant also swore an Affidavit on 19th September 2021 in relation to the Bankruptcy proceedings No- 27 of 2000, as per the annexure “UK-14” of USHA KUMAR’s Affidavit, and as shown in page 273 of the volume 1 of the Copy record.
    2. Notice of Motion dated and filed on 12th August 2002 by the Appellant in the said substantive action No-85 of 2000 seeking to set aside the said action and the judgment entered therein and for unconditional leave to file the statement of defence. This was supported by the Affidavit of the Appellant and the purported draft statement of defence. (Vide pages from 308 to 315 of the volume 1 of the Copy record and “UK-17 & 18” of USHA KUMAR’s Affidavit),
    1. Notice of Motion filed on 17th August 2002 and dated 26th August 2002, supported by the Appellant’s Affidavit, in the Bankruptcy Proceedings No-27 of 2000, seeking to RESCIND the Receiving Order made on 21st August 2002 and for the stay of the proceedings. (Vide pages from 311 to 316 of the volume 1 of the copy record and the annexures “UK-20” & “UK-21” of USHA KUMAR’s Affidavit).
    1. Notice of Motion dated and filed on 13th November 2002 in action No- 85 of 2000, supported by the Appellant’s Affidavit and the , purported, draft Defence, seeking to set aside the judgment entered and for the stay of proceedings, while the proceedings in the substantive action had already been terminated with the entry of consent judgment. (Vide pages from 331 to 337 of the volume 1 of the copy record and annexures marked as “UK-24” & “UK-25” of USHA KUMAR’s Affidavit)
  11. It is to be observed on further perusal, that the then presiding Magistrate Hon. David Balram, having dealt with all the above Applications, had dismissed those Applications as revealed by several annexures marked as “UK-26” and “UK -27” to the Affidavit of USHA KUMAR and shown in page 339 and in pages from 350 to 359 in Volume 1 of the copy record.
  12. It is an undisputed fact that the Orders/ Ruling pronounced by the then Magistrate Hon. David Bal Ram, dismissing the said Applications, remain intact and unchallenged till this day by the Appellants before a higher forum pursuant to the Magistrate’s Court Rule and or Bankruptcy Act.
  13. It was when the consent judgment in the action No- 85 of 2000 and the Receiving Order in the Bankruptcy proceedings No-27 of 2000 had remained unchallenged and the Official Receiver had secured the funds belonging to the Appellant from the Bank of Baroda, the Appellant’s Solicitors Messrs. Pillai Naidu & Associates filed the said Ex-parte Notice of Motion and obtained the impugned injunction Order against the Official Receiver. At that juncture, the Appellant could not have moved for any claim at the Magistrate Court, as he had already exhausted his remedies before the Magistrate by making 4 different Applications through Messrs. G.P Shankar & Co, long prior to making his 3 latest Applications before the Magistrate. The only way out for him, after the refusal of his initial 4 Applications made through Messrs. G.P. Shankar & Co, was resorting to an Appellate forum.
  14. When the Orders made by the then Magistrate Hon. David Bal Ram, on the previous Applications remained unchallenged, the subsequent Magistrate could not have made an order to supersede or invalidate the former order made by former Magistrate Hon. David Bal Ram, unless it was dealt with by way of an Appeal process.
  15. It is also on record that on 7th December 2000, another firm of solicitors, namely, “AKBAR”, acting on behalf of the Appellant, had written to the 1st Respondent- Judgment Creditor’s Solicitors, Messrs. Young & Associates, making a proposal to settle the matter by initial payment of $2,000.00 and thereafter for the monthly payment of $1,000.00. This proposal was also did not materialize. Vide page 299 of the volume 1 of the copy record.
  16. It was under these circumstances; the Appellant’s former and present Solicitors, namely Messrs. Shanker & Co and Messrs. Pillai Naidu & Associates had opted to flood the Magistrate Court with series of frivolous and vexatious Applications (altogether 7 such Applications) which had no prospect of success. Clearly, their sole purpose behind this was nothing but frustrating the Judgment Creditor 1st Respondent.

The 1st Application in issue Before the Magistrate in the Year 2021:


  1. After failing in his all 4 previous Applications made through Messrs. G. P. Shankar & Co before the then Magistrate Hon. David Bal Ram, the Appellant attempted to have his “Second Bite on the Same Cherry” by filing the next Ex-Parte Notice of Motion through Messrs. Pillai Naidu & Associates on 7th May 2021 seeking injunctive Orders, which was bound to fail as there was neither any substantive matters pending before the Magistrate nor there was a serious question to be tried before the Magistrate.
  2. By then, the Magistrate had no jurisdiction to deal with the matter as both the substantive action No-85 of 2000 and the Bankruptcy proceedings bearing No-27 of 2000 had already been duly and finally disposed by the predecessor Magistrate. Accordingly, the decision made by the learned Magistrate on 21st April 2023 to discontinue the ex-parte injunction order and to dismiss the said Application for injunction is not an error on the part of the Magistrate or blameworthy. Thus, any grounds of Appeal touching this point should necessarily fail.

The 2nd Application before the Magistrate:


  1. The 2nd Application before the Magistrate, through Messrs. Pillai Naidu Associates, on behalf of the Appellant, was the Inter-Parte Notice of Motion dated 20th July 2021 and filed on 23rd July 2021 seeking, inter alia, as per the prayer (a) thereto, an Order for the relevant funds in the Official Receiver’s Account to be transferred to the Appellant’s Account No- 910404022 at the Bank of Baroda.
  2. When a judgment in the said substantive action had been duly entered by consent and the subsequent Bankruptcy proceedings too stood terminated with the issual of Receiving Order and the appointment of the Official Receiver, and particularly, when the said Orders remained intact, the Appellant was not entitled to obtain such an order to have the funds reverted back. The Jurisdiction of the Magistrate had ceased for her to make such an order. Thus, the Magistrate’s Ruling with regard to this Application cannot be found fault with. Thus, I have no alternative, but to affirm the Ruling of the Magistrate in this regard.

The 3rd Application Before the Magistrate:


  1. The 3rd Application by the Appellant before the Magistrate through Messrs. Pillai Naidu Associates, was the Inter-Parte Notice of Motion dated 7th April 2022, filed on 12th April 2022 and supported before the Magistrate on 22nd April 2022 seeking, inter alia, for Orders dismissing the Striking out Application that had been filed by the Hon. Attorney General of behalf of the Official Receiver, and for a further order to transfer the funds to the Appellant’s bank Account.
  2. The facts and circumstances discussed above clearly demonstrate that the Magistrate could not have allowed this Application, which deserved nothing more than a mere dismissal. On the other hand, in the light of the said facts and circumstances, the Striking out Application preferred by the Attorney General on behalf of the Official Receiver on 8th December 2021 was with full of merits and thus deserved to be allowed by the Magistrate, with an order for a substantial amount of costs in favor of the Official Receiver, in view of the despicable conduct and abuse of process on the part of the Appellant before the Magistrate Court.
  3. The Appellant knew very well that he owed money to the 1st Respondent judgment Creditor. He had entered into a consent judgment in the action No-85 of 2000. Thereafter gave several undertakings to pay and settle the amount due within the specific time period. He did not honor his words. Instead, he went on filing number of frivolous and vexatious Applications with the sole purpose of defrauding the Judgment Creditor and thereby deliberately delayed the course of justice. In my view, the Appellant should have been severely dealt with for contempt of court for deliberate defiance to the Court Order. It is never too late even for the Administrator of the Appellant’s Estate to be brought to book, if this contemptuous act persists.
  4. In fact, as alluded to by the Appellant’s Counsel, there has been some delay on the part of the Official Receiver in performing his duties, which involved liaising with all the financial institutions and government departments etc. in Fiji, in order to obtain information on finances and assets held by the Judgment Debtor.
  5. As per the documents marked as “SP-1” to “SP- 6” annexed to the Affidavit in Response by SHALVEEN PRASAD and filed before the Magistrate, it is clear that the Official Receiver had acted in this regard from 16th October 2002 till 7th August 2007. Thereafter, subsequent to a period of inaction, again from 14th December 2020, the Official Receiver started rolling in this regard as evidenced by 14 annexures marked as “SP-7” and the annexures marked as “SP-8” and “SP-9” both dated 22nd March 2021.
  6. It was on the feedback marked as “SP-8” and dated 22nd March 2021, that the Official Receiver obtained details from the Bank of Baroda about the existence of a sum of $35,754.05 to the credit of the Appellant -Judgment Debtor, the Official Receiver managed to get the said funds transferred to his Official Account.
  7. There appears to have been some delay on the part of the Official Receiver in performing his/ her duties. However, this delay alone will not pave the way for the Appellant to gain any benefit or to capitalize on it. Until all the dues to the Judgment Creditor, in terms of the judgment, along with the interest on it, if any, are fully and finally settled, the said money will remain intact in the Account of the Official Receiver. The Appellant cannot ask for this money or have a share out of it, unless there is any remainder after satisfaction of the Judgment Creditor’s entitlements and deducting the expenses and the costs incurred by the Official Receiver.
  8. The Appellant had, obviously, no chances of Appealing against the Judgment in the substantive action No-85 of 2000, as the same was entered by consent with the representation of his then Solicitors. He failed to challenge the Receiving order made, instead kept on filing Application after Application before the Magistrate through his former Solicitors Messrs. Shankar & Co, and thereafter through Messrs. Pillai Naidu Associates, which finally did not bring any favorable outcome as alluded to above.
  9. The main argument advanced on behalf of the Appellant , as per Grounds of Appeal Nos- 5,6 and 7 , was pursuant to Section 4 (4) of the Limitation Act 1971 , wherein the Appellant’s Counsel argued that the Official Receiver was statute barred from enforcing the Receiving Order as his attempt to release the funds to the 1st Respondent Judgment Creditor was after a laps of 18 years from the date of issuing the Receiving order, and the Magistrate erred in law and in fact by misconstruing the Limitation Act.
  10. Careful scrutiny of the Section 4 (4) of the Limitation Act 1971 clearly demonstrates that what is barred by this section is bringing an action for the enforcement of a judgment after a period of 12 years from the date the judgment became enforceable. This Section does not prohibit any steps being taken to execute and enforce the judgment. The Official Receiver had not brought an action. All what he did was performing his Statutory Duty casted on him as per the Receiving Order. This process of execution is not barred by the Section 4 (4) of the Act. His duty is an independent one and remains until the judgment is fully executed and the judgment creditor is duly paid. No time bar is imposed for the execution. What is barred is initiating a new action.
  11. I am inclined to be guided by the case Law authority, relied on by the learned State Counsel for the Official Receiver, wherein the Honorable then Master Ms. Bull in Sigamani and others v Estate of Lakshmi & others Civil Action No-HBC 59 of 2004 (13 May 2020) , after considering long line of English case law authorities, arrived at a conclusion that Section 4 (4) of the Limitation Act does not apply to the execution of judgments, but only to a fresh action on the premises of a judgment . Thus, the argument of the Appellant Counsel before the Court bellow and this Court pursuant to the Section 4 (4) of the Limitation Act 1971 will not hold water in the Appellant’s favour and such argument has to necessarily fail.
  12. Under Bankruptcy proceeding No- 27 of 2000, no order for Bankruptcy has been made so far against the Appellant. The only Order made is the Receiving Order against him. Thus, the Appellant could not have invoked the section 28 of the Bankruptcy Act in his favour. Further, the Bankruptcy Act does not make any provision with regard to time limitations on Receiving Orders and in the absence of this, none can be assumed.

Further Consideration of Grounds of Appeal:


  1. As far as the 1st Ground of Appeal is concerned, the issue of service or non -service on the Judgment Creditors need not have been a matter for concern before the Magistrate. The Judgment Creditor is the wounded-up Company. It could not have been represented by any Solicitors or Counsel. Their Solicitors could have only watched the interest of the Shareholders / Creditors of the defunct Company. The Defunct Company was duly represented by the Official Receiver. However, the Applications were correctly dismissed by the Magistrate, after considering the merits therein. Thus, the first ground should fail.
  2. The 2nd Ground of Appeal is based on the absence of the Original Records. This did not inhibit the subsequent proceedings before the Magistrate. The case record was reconstructed to a required extent by filing of the crucial documents in the substantive action No-85 of 2000 with the leave of the Magistrate and with no objection of any sort. The case record in the Bankruptcy Proceedings bearing No-27 of 2000 was also reconstructed. This ground will not assist the Appellant.
  3. The 3rd Ground of Appeal also should fail as the Magistrate had not erred in refusing to transfer the funds. The Appellant, being the Judgment Debtor, could not have moved for the release of the Money, unless there was an order in his favour by the Magistrate or a higher forum or there existed a balance after the satisfaction of the judgment and other disbursements together with costs, if any.
  4. The ground no-4 also has to fails as the substantive action No-85 of 2000 had already been terminated with the entry of the consent judgment. The Appellant had not commenced any new action with a substantive claim for the Court to decide later by having an injunction order in operation. As the State counsel correctly alluded to, the Appellant was adopting scattergun approach to evade his debt.
  5. The grounds Nos- 5,6 and 7 have already been dealt with and for the reasons stated above, those grounds also should necessarily fail.
  6. The question on the sworn proof of debt with the alleged added costs should have been raised before the 2nd Respondent Official Receiver or should have been taken up as an issue in a subsequent Application for Rescission, variation or in an Appeal before the relevant forum. Thus, the ground No-8 has no merits.
  7. As far as the ground No-10 is concerned, it was the duty of the Appellant to adduce evidence of any Review, Rescission or Variation. The Applications made through Messrs. G. P. Shankar & Co, seeking to set aside and rescind the Order made did not succeed before the Magistrate. Those Orders of refusal by the then Magistrate Hon. David Bal Ram, remained intact without being appealed against. Therefore, this ground also should fail.
  8. The ground No-11 raised on the basis of the alleged failure to provide evidence on proof of the advertisement of the Receiving Order in the Gazette, is with no merits. The fact that the Receiving Order was duly gazetted, appears to have escaped the attention of the Counsel for the Appellant.
  9. All 7 Applications preferred by the Appellant, initially 4 through Messrs. Shankar & Co, and subsequently 3 through Messrs. Pillai Naidu Associates, were duly heard by the respective Magistrates and the Appellant was well and truly represented by his Counsels at those hearings. Therefore, the ground No-12 is devoid of any merits.
  10. The Ex-parte Notice of Motion filed on 7th May 2021 and the Inter-Parte Notice of Motion filed on 23rd July 2021 on behalf of the Appellant were absolutely with no merits. As such, the learned Magistrate had correctly dismissed the 3rd Application by the Appellant, which was seeking to dismiss the Striking out Application preferred on behalf of the 2nd Respondent. This Striking out Application was with full of merits owing to the absence of any merits in the Appellants aforesaid two Applications. Thus, the ground No- 13 is with no merits and should be dismissed.
  11. The Appellant has not convinced this Court as to how the learned Magistrate erred and/ or failed as stated in the ground No-14. The counsel has not alluded to the specific facts and circumstances that the Magistrate failed to consider. Accordingly, this ground also should necessarily fail.
  1. COSTS
  1. The Appellant agreed for and entered into the consent judgment in the substantive action No-85 of 2000. He was duly represented in that process. But, it was not complied with by the Appellant. Subsequently, he proposed and agreed to number of settlement Plans, but none was materialized. He had made 4 frivolous Applications through his then Solicitors Messrs. G.P. Shankar & Co and none became victorious. No appeal were taken. He deliberately lied before the subsequent Magistrate and filed 3 further Applications through his current Solicitors, which had no prospect of success. He abused the process, and after his death, the Administrator of his Estate also continued to do so. They calculatedly perverted the course justice.
  2. I haven’t come across a matter in the recent past, wherein the process of the Court was abused in this manner. This warrants condemnation and an order for cost on indemnity basis. The Official Receiver, the 2nd Respondent, was unnecessarily dragged into these frivolous Applications before the Magistrate and before this Court. Under these circumstances, I stand convinced that a sum of $5,000.00 as cost would do justice to the Official Receiver, to be recovered from the deposit in his Account or from the Estate of the deceased Appellant.
  1. CLAIM AGAINST MESSRS YOUNG & ASSOCIATES:
  1. Counsel for the Appellant in his written submission has moved this Court to make certain Orders against Messrs. Young & Associates, on account of their alleged role played on behalf of the wounded-up 1st Respondent Company. I did not find that the Young & Associates has played any active role before the Magistrate. They maintained the same position before this Court as well. The wounded up company had no locus to appear, thus their Solicitors abstained from any active role.
  2. Instead, they were only looking after the interest of the Shareholders / Creditors of the defunct entity, for which they were entitled to. The execution of the judgment was the statutory duty of the Official Receiver, which he commenced and continued with, albeit a delay was exhibited, which is pardonable.
  3. There may be Shareholders and/or Creditors of the defunct 1st Respondent Company, who are waiting for their dues to be recovered from the assets of the entity, which is under the Receivership. There is no any hard and fast rule to preclude such shareholders, Creditors or any other person/s with interest from being present in court personally or through legal representatives for the purpose of watching their interest in the subject matter.
  4. The strictures passed by the Appellant’s Counsel against Messrs. Young & Associates in paragraph 4.6 of page 8, and seeking reliefs against them as per paragraphs 8(f) to (k) of his initial written submissions are uncalled and unwarranted. In the given scenario this Court has no jurisdiction and cannot grant any such reliefs against a Solicitor or a firm of Solicitors. There was no any proceeding against them, nor were they tried before the Magistrate warranting any decision against them. Then, how can this Court be called upon to hear and grant reliefs on such allegations. These kinds of remarks and move against a fellow professional or a firm of Solicitors, with no solid base, are not desirable.
  1. FINAL ORDERS:
  1. For the reasons discussed above, this Court makes the following Orders;
    1. The Appeal preferred on behalf of the Estate of the Deceased Defendant/ Judgment-Debtor on 16th April 2023 in Bankruptcy Action No- 27 of 2000 is hereby dismissed.
    2. The impugned Ruling pronounced by the Magistrate’s Court of Nadi on 21st April 2023, in the Bankruptcy proceeding bearing No-27 of 2000, is hereby affirmed.
    1. The Official Receiver/ Second Respondent shall proceed with his duties, on behalf of the First Respondent/ Judgment/ Creditor, with no further delay.
    1. The Official Receiver/ Second Respondent shall be at liberty to recover $5,000.00 being the summarily assessed Costs from and out of the money credited to his account or from the Estate of the deceased Judgment Debtor.
    2. The Judgment shall be sealed and served.
    3. A Copy of this Judgment shall be dispatched to the Magistrate’s Court of Nadi, along with the Duplicate Case Record Bearing No- 27 of 2000 forthwith.

A.M. Mohamed Mackie
Judge


At the High Court of Lautoka on this 22nd day of September, 2025.


SOLICITORS:


For the Appellant/ Judgment Debtor: Messrs. Pillai Naidu & Associates
Barristers & Solicitors.


For the First Respondent/Judgment Messrs. Young & Associates, Barristers & Solicitors.
Creditor (under Receivership) (Non-active role)


For the 2nd Respondent Official Receiver: Hon. Attorney General’s Chambers.


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