Roys Heavy Machinery and Equipment Repairs Suppliers Ltd v Narayan [2011] FJMC 121; Nadi Civil Action 150 of 2008 (19 October 2011)

IN THE RESIDENT MAGISTRATE'S COURT
WESTERN DIVISON AT NADI

NADI CIVIL ACTION NO. 150 OF 2008

BETWEEN:

ROY'S HEAVY MACHINERY & EQUIPMENT REPAIRS
SUPPLIERS LIMITED

AND:

HARI NARAYAN

RULING
Introduction

This is the Defendant's application for setting aside a Formal Decree entered by this court in favour of the Plaintiff for the sum of $18,440-39 on 05th August 2009.

This claim arises out of a credit transaction between the parties. The Plaintiff claims against the Defendant for the monies which are owed for goods supplied and delivered to the Defendant on credit.

The Defendant's Application

The Defendant applies by notice of motion dated 24th August 2010 and filed in Court on 01.09. 2010 for orders:

(i) That the Default Judgment dated 05th day of August 2009 and sealed by this Court on 17th day of August 2009 be set aside;

(ii) That the bench warrant issued against the Defendant to be cancelled;

(iii) That the Judgment Debtor Summons dated 19th January 2010, issued against the Defendant to be dismissed;

(iv) That the costs for this application be costs in the cause and

(v) Such further and or other orders that the Court, may deem just, fit and expedient and necessary in the circumstances.

THE PLAINTIFF'S SUBMISSIONS

(i) The Defendant runs a Sole Trader Business, thus it is not a Company, and the Defendant cannot authorize another person to depose an Affidavit on behalf of him or his "Company". They said Affidavit is improper and should be expunged from the Court records.

(ii) Mr. Prem Narayan merely deposes that the Defendant is away in United States of America. There is no medical reports annexed to the Affidavit to confirm this, nor is there any power of attorney given to Mr. Prem Narayan to depose this Affidavit on behalf of the Defendant.

(iii) There is merely a letter under the Defendant's letter head signed by an office administrator informing that "Prem Narayan is authorized to act on behalf of Hari Narayan on the stated case". There is no authority by the Defendant to authorize Mr. Prem Narayan to depose an Affidavit in Court, it talks about "to act on behalf of".

(iv) The Court entered a Formal Decree on 05th August 2009 and this was after the Plaintiff formally proved its case with a witness and documentary evidence.

(v) In his affidavit on paragraph 5, Mr. Prem Narayan states that "The Defendant was unaware that the Notice of Motion dated 06th February 2009 was issued and served against him". However on 23rd February 2009 the said Motion was served on the Defendant to be returnable on 03rd March 2009. Affidavit of service has been filed by Reez Ali.

(vi) Mr. Prem Narayan also at paragraph 8 says that this action was struck out on 12th November 2008. This is incorrect as the matter was never listed in Court on 12th November 2008. It was listed for first call on 18th November 2008.

(vii) At paragraph 9 of the Affidavit, Mr. Prem Narayan refers to a letter written to Court dated 24th November 2008. The said letter is advising the Court Officer (emphasis added) that the said case was dismissed because the Plaintiff failed to show up on 12th November 2008. The letter is signed by a "Managing Director" under the Defendant's letterhead. The Defendant operates a Sole Trader Business and it has a letterhead, where a "Managing Director" signs. It is submitted that this letter is a recent fabrication and made up in an attempt to set aside the Judgment of 05th August 2009. The deponent is unaware of the facts of this case.

(viii) At paragraph 16 of the said Affidavit, Mr. Prem Narayan refers to a Statement of Defence, but none is annexed to the said Affidavit that was served on the Plaintiff's Solicitors. This has been deposed and addressed in the Plaintiff's Affidavit in Opposition filed on 24th September 2010, at paragraph 17. The Defendant has not responded to the same in any replies, thus it is deemed to be admitted by the Defendant that no proposed statement of defence has been annexed to the Affidavit in Support of Prem Narayan.

DETERMINATION

Both parties consented for this matter to be decided on affidavits filed by the parties and written submissions. Written submissions have been filed by both parties.

The Defendant appeared on 18.11.2008. The Plaintiff did not appear on that date hence the Plaintiff's claim was struck out.

Thereafter the Plaintiff on 06.02.009 filed a Notice of Motion dated 2nd December 2008 seeking reinstatement of the Plaintiff's claim. This motion was supported in court on 10.02.2009 and the court made order in term of the motion. On 07.04.2009 the Defendant defaulted in appearance that the matter was fixed for formal Proof on 5 May 2009. The Matter was not formally proved on that date and several adjournments finally the matter was formally proved on 5th August 2009.

The Defendant applies by notice of motion dated 24th August 2010 and filed in Court on 1st September 2010 for setting aside of the default judgment.

The Defendants application is made pursuant of Order XXX Rule 5 and Order XXXIV of the Magistrates Court Rule Cap. 14.

Order XXX Rule 5 is headed "setting aside of judgment made in absence of party" and reads:

"" Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court, upon such terms as may seem fit."

The Plaintiff opposes this application.

I note that the Defendants application has been made some 13 months after the default judgment was entered. There has been procrastination on the part of the Defendant in making this application. This amount to laches and this has been not explained by the Defendant.

The Defendant did not file affidavit in support of his application. Instead, one Prem Narayan has filed an affidavit for and on behalf of the Defendant. Mr. Prem Narayan state in his affidavit that he is the nephew of the Defendant and is authorized to depose to this affidavit by the Defendant and the "Company". In fact he is not authorized by the Defendant. He is authorized by Ms Ashwini Lata, Office Administrator. Under the Defendant's letterhead she states that "Prem Narayan is authorized to act on behalf of Hari Narayan (the Defendant) on the sated case". In the circumstances, find Mr. Prem Naraya was not duly authorized to depose an Affidavit in court. This tends me to decide that there is no affidavit by the Defendant in support of this application.

The Notice of Motion dated 6th February 2009, Motion for reinstatement, was issued and served against the Defendant. This motion was served on the Defendant on 23rd February 2009 to be returnable on 3rd March 2009. Affidavit of service has been filed by Reeas Ali. Therefore the court cannot accept the allegation that this motion was not served on the Defendant.

The Defendant has failed to annex the proposed defence along with his affidavit.

For the reasons set out above, I see no sufficient cause to set aside the default judgment made on 5th August 2009. Also, I find no merits in this case.

I therefore proceed to dismiss the Defendants application for setting aside the default judgment with the cost of $250.00 which is summarily assessed.

M H Mohamed Ajmeer
Resident Magistrate
19.10.2011