Fiji Development Bank v Nasip [2012] FJMC 140; Civil Case 469.2012 (25 June 2012)

IN THE RESIDENT MAGISTRATES COURT OF FIJI ISLAND
AT SUVA

Civil Case No: 469/2011

BETWEEN:

FIJI DEVELOPMENT BANK
PLAINTIFF

AND:

MOHAMMED NASIP
DEFENDANT

Counsel for the Plaintiff : Mr. Lajendra (Lajendra Law)
Defendant : No appearance
Date of Hearing : 14 May 2012
Date of Judgment : 25 June 2012

JUDGMENT

1. This is the Plaintiff's claim against the Defendant to recover the monies pursuant a loan granted where the repayment had been defaulted by the Defendant.
   
2. The Statement of Claim had been filed of record on 24.11.2011.
   
3. The affidavit of service had been filed on 22.02.2012. The Defendant had been personally served with a copy of the Statement of Claim on the 08.02.2012.
   
4. When this case was called in Court on 14.03.2012 The Defendant's name was called in Court but there was no appearance. Having considered the fact that the Defendant is from Tavuva, the case was called twice at 10.20 am and 11.00 am.
   
5. In the circumstances I made an order for the Plaintiff to proceed with the case by way of formal proof. The date for Formal proof was set to 14.05.2012.
   
6. Mr.Paula Rakai, Bank Officer, Team Leader Recovery of the Fiji Development Bank was the sole witness for the Plaintiff.
   
7. This witness testified to Court that a loan of $ 17,000 was granted to the Defendant by the offer later dated 09.05.2006. This document was marked as exhibit 01 and the witness identified the signature of the Defendant.
   
8. This offer was acknowledged by the Defendant. Later on 12.07.2006 there had been a variation of Security and it was accepted by the Defendant by placing his signature to the same. This was marked as exhibit 02.
   
9. Exhibit 15 of the Plaintiff is the statement of account of the Defendant. This document is sufficient enough to establish that the loan of $17,000 was released to the Defendant on three separate occasions.
   
10. On 26.07.2006, $ 9831.54 and $ 5000 had been debited to the account as loan advance. The balance $ 2168.46 was released on 25.08.2006
    
11. 16 Documents were marked as exhibits in order to substantiate the claim of the Plaintiff. I have very carefully perused all the documents.
    
12. According to exhibits 1, 2, and 3, the loan facility had been granted to the defendant. These applications had been signed by both the Plaintiff and Defendant. I further observe that the Plaintiff bank had all times material addressed the correspondence to the defendant.
    
13. The witness for the Plaintiff had very clearly stated to Court that the loan facility had been outstanding from the inception.
    
14. The documents filed by way of exhibits demonstrate that a sum of $ 48653.80 as at 30.09.2011 is the actual outstanding amount. The agreed interest was 14.5% per annum.
    
15. The Plaintiff has sent a demand notice to the Defendant on 02.01.2008 and it was accepted by the Defendant by counter signing the same. But he did not take any effort to repay the loan facility to the plaintiff bank.
    
16. However, exhibit 8 and 9 explain that the Plaintiff failed to sell the mortgaged property of the defendant to recover the money.
    
17. Having considered the evidence of the Plaintiff I conclude that the case has been established on balance of probabilities.
    
18. Hence following Orders are granted,
    
    1. Judgement against the Defendant in the sum of $ 48,653.80;
    2. Cost of this action summarily assessed and fixed at $ 500.
       
19. Orders accordingly.
    

Yohan Liyanage
Resident Magistrate
25th June 2012