IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Civil Case No: - 151/2009

HARIBHAI D PATEL
PLAINTIFF

V

BOBBY RATISH LAL
1ST DEFENDANT

SATISH LAL
2ND DEFENDANT

For Plaintiff: - Mr. Vatentabua,
For 2nd Defendant: - Mr. Singh R.

RULING

Background of the Case.

1.	The plaintiff who has his business in Suva filed this action again the 1st and 2nd defendants where both reside in Lambasa. After issued of writ of summons against the 2nd Defendant, filed a motion supported by an affidavit, claiming that the issuing of the said writ of summons in the Suva Magistrates’ court is contrary to the provisions of Order XIII of the Magistrate’s Courts rules in Magistrate’s Courts Act and further, the said writ of summon ought to have been issued in Lambasa Magistrate’s court since the both defendants reside in Lambasa or where the contract ought to have been performed in Lambasa. 

2.	The Plaintiff filed his affidavit in reply. Then both parties filed their submission in written before my predecessor learned Magistrate. Accordingly I will deliver my ruling on want of jurisdiction. 

Submission of the 2nd Defendant.

3.	2nd Defendant submitted that if there is a breach of contract, as in this case, then the suit ought to be commenced in the court nearest to the place in which such contract ought to have been performed. 

4.	Further 2nd Defendant stated that in this particular case, the Plaintiff has to supply and deliver the goods at Lambasa and this is the place where the contract has to be performed. 

5.	Apart from that both defendants resides in Lambasa and one of the Dependants carries on his business in Lambasa, therefore the writ ought to have been issues at Lambasa. 

6.	In his affidavit, 2nd Defendant stated that on 11/10/2007, the Plaintiff sent 7 packages of goods to the 1st Defendant at Lambasa by CDP No 681424. But 2nd Defendant denied that he never had any business with the Plaintiff nor ever ordered any good from the Plaintiff. 

Submission of the Plaintiff.

7.	In his submission, the plaintiff stated that 2nd Defendant has not satisfied the court that the Magistrate’s court in Lambasa is the venue in which this case can be more conveniently and fairly heard and that performance was to be in Lambasa rather than in Suva. 

8.	In his affidavit in reply, the plaintiff affirmed that the 1st Defendant placed orders for goods in Suva. Then goods were packaged in Suva and delivered them to the CDP currier office for same to be couriered on a freight forward basis to the 1st Defendant. Thereafter the Defendant prepared a cheque and forwarded the same as payment to the plaintiff in Suva. 

9.	Further, the Plaintiff contended that 2nd Defendant has not discharged the burden of satisfies the court that the place of performance of the contract ought to be at Lambasa and must be penalized with cost for making a vexatious and frivolous applications. 

Legal Back Ground.

10.	Order XIII, rule 1 (a) deals with the place of trial and of institution of suit upon contract. The said rule 1 (a) stated as 

" All suits arising out of the breach of any contract may be commenced and determined in the court nearest to the place in which such contract ought to have been performed, or in which the defendant or one of the defendants resides or carries on business". 

11.	Accordingly there are two limbs in the rule 1 (a), that is "the court nearest to the place in which such contract ought to have been performed" or " where the defendant reside or carries on business". 

12.	Jiten Singh J held in John Beater Enterprises Pty Ltd v Gounder (2003) FJHC 101, HBA0004.2003S, 30th April 2003), that under order 13 Rule 1 (a), the Plaintiff has a choice of forum. He may commence proceeding based on breach of contract either a) where the contract was to be performed, or b) where the defendant resides or d) where the defendant carries on his business. 

13.	In the present case, according to the affidavit in reply and submission of the Plaintiff, the Plaintiff has commenced this action based on the place where the contract was to be performed, which contended by the 2nd Defendant. 

14.	According to the affidavits of both parties and submissions of both parties, the contract between Plaintiff and the Defendants are a contract for the Sale of Goods. In this regards, division 8 of the Sale of Goods Act is relevant. 

15.	Section 28 of the Sale of Good act reads as "It is the duty of the seller to deliver the goods and of the buyer to accept and pay for them in accordance with the terms of the contract of sale. Further, section 29 reads that "Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods".

16.	The Dictionary of English Law (Vol 2) by Jowitt defines "performance" as:"With reference to a contract or condition, performance is the act of doing that which is required by the contract or condition. The effect of performance, in the case of a contract is to discharge the person bound to do the act from liability (Nadan v National MBf Finance Fiji Ltd [1998] FJHC 121; Hbc0017j.97s (17 August 1998)

17.	Accordingly, the seller has to deliver the goods, and buyer has to accept the same and pay for the same in order to discharge their liabilities under the contract. 

18.	Delivery means voluntary transfer of possession from one person to another, except that in relation to goods forming part of a bulk, delivery includes such appropriation of goods to the contract as results in property in the goods being transferred to the buyer. Its includes symbolic deliver and is not restricted to the physical transfer of the goods themselves, but covers also transfer of possession of document of title to goods. Where the buyer takes possession pursuant to the leave of the seller, whether, concurrent of antecedent, that is a voluntary transfer of possession. ( Halsbury’s Laws of England, volume 41, 4th Eddition, 2005 reissue, "Sale of goods and supply of services", p140.). 

19.	According to the aforesaid definition of the Delivery, section 30 (1) of the Sale of Goods act, reads that "Apart from any such contract express or implied, the place of delivery is the seller's place of business if he has one, and if not, his residence". Further, section 33 (1) of Sale of Goods Act reads that "Where, in pursuance of a contract of sale, the seller is authorized or required to send the goods to the buyer, delivery of the goods to the carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is, prima facie, deemed to be a delivery of the goods to the buyer". In view of the said section 33(1) of the sale of goods act, the delivery to the carrier, discharge the duty of the seller to deliver the goods to the buyer. 

20.	In this present case, the Plaintiff, in his affidavit affirmed that subsequent to the order was placed by the 1st Dependant; he packaged the goods and delivered the same to the office of the CDP courier for the purpose of transmission the same to the buyer. In his affidavit of 2nd Defendant, he also admits the fact that 1st Defendant received 7 packages of goods by CDP on 11/10/2007 at Lambasa. 

21.	According to the section 33(1) of the Sale of Goods Act, the Plaintiff has discharged his duty to deliver the goods to the buyer, after he delivered the goods to the currier for the purpose of transmission to the buyer. 

22.	According to the section 29 of the sale of goods act, that unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions. 2nd defendant did not satisfied the court that it was agreed otherwise, and Plaintiff in his affidavit affirmed that fact that 1st defendant, prepared a cheque and forward the same as payment to the Plaintiff in Suva. According to the section 36 of the sale of goods act that the buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them. 

23.	After considering the reasons set out in above paragraphs, and on the basis of the submissions and after perused the affidavits tendered by both parties, that the 2nd Defendant has not provided sufficient evidence that the performance of this contract ought to have in Lambasa. Accordingly, I inferred that the contract ought to have been performed in Suva, and dismisses the application of the 2nd Defendant to stuck out this proceedings or transfer to Lambasa. 

On this 6th day of April 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate,
Suva.