Ram v Teltech Communication Services Ltd [2013] FJMC 130; Civil Action518.2010 (25 March 2013)

REPUBLIC OF FIJI ISLANDS

IN THE MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION

CIVIL JURISDICTION

Civil Action No. 518 of 2010

Amrit Ram and Savitri Ram
Plaintiff

.v.

Teltec Communication Services Limited
Defendant

For Plaintiff : Mr. M. Nand (Nands Law)
For Defendant : Mr. E. Narayan (Patel Sharma Lawyers)

Judgment

Introduction

In this matter the Plaintiff has filed a Writ seeking judgment in the sum of $17,469.32 (Australian Dollars) together with interest at the rate of 25% per month from 30th March 2007 until full payment but limited to $50,000.00 and the Costs of this action. The Plaintiff's claimed that the Defendant from time to time purchased materials from Australia and requested the Plaintiff's to pay the invoice on its benefit which the Plaintiff's did on agreement that the Defendant would repay the amount on demand.

The Defendant has filed a Statement of Defence and subsequently the Plaintiff's filed a reply to the Statement of Defence.

The case was heard on 8th August 2012, and 11th February 2013. Parties were given time to make written submissions. This Court has received submissions from both the parties.

The Plaintiff's Case

Both the Plaintiff's gave evidence.

The evidence of Ms Savitri Ram can be briefly summarized as follows:

"Filed claim against defendant company. Teltec had difficulty, placed an order could not pay for items. Manoj called me to pay in Australia to release the goods. Did 2 payments. Manoj told me to pay on Teltecs behalf to release the goods. Used joint account between me and my husband to pay Aria Communications. Transferred sum to Teltec, Manoj had difficulty in paying wages of workers. He was desperate. Money not as a gift he borrowed to pay back. He said he will pay when we came to Fiji or pay in a month's time. Seen document before in Manojs office when he wrote it. He said he will pay – he apologized and stated he will pay in 1 Month's time. Date of document 2nd March 2007. Did not receive payment in 1 Months time. Called Manoj many times and visited him with my husband. We came to Mr Nand's office. Sought demand letter. No payments after demandIn Winding Up in Court was sent email by counsel. Ruling of winding up stated ruled out. Manoj disputed the debt. He produced agreement to offset the debt. Never had agreement. Questioned husband of agreement. He said he is not aware of agreement. " In cross-examination "I paid for 2 invoices. T/T money to Manoj. He told me to pay couple of days before the date of invoice. He called me to pay. Communication by mutual trust. Lot of communication not written. Like instructing to pay. Got knowledge of agreement after I saw the affidavit. Agreement was fraudulent we never entered into the agreement. Defendant did not pay for sons fees. Defendant did not pay husbands airfare. "

The evidence of Mr. Amrit Ram can be briefly summarized as follows:

"Defendant company belongs t my brother in-law. Claim for money she paid for Teltec in Sydney. My wife paid the money. No agreement. Know nothing of the agreement. After ruling of winding up. The Money we are asking is between Teltec and us, not Manoj. I asked for original of agreement. So I could get signature experts. No agreement to off-set." In cross-examination "Sent DVD's to Teltec. Sent few times. A lot of money still not paid. Am here for money paid to Aria Comm. Wife gave the money. Teltec still owes money for Aria Comm. Am asking for what wife gave. I am not involved in the agreement. Agreement no letterhead. Not my signature. Donot know agreement dated 1st May 2006. Do not know if I was in Fiji on 1st May 2006. Do not have original. No such agreement. Few times defendant helped me. I helped him. I do not owe him a single cent. Defendant did not pay my sons school fees."

The Defendants Case

The Defendant's called 3 witnesses, Vijendra Lal, Vijay Prakash and Manoj Kumar.

The evidence of Vijendra Lal, was "Amrits son stayed with me for 2 years. I am close to the family. Amrits' sons nickname is Shibu. Took Shibu to Manoj's office when he stayed with me. Used to get Money from manoj – for school fees. What Amnit told me". In cross-examination "Amnit went inside the office. Never seen what happen inside. Never asked how much money. Mother of Amnit asked him to pick up the money. Do not know where money came from."

The evidence of Vijay Prakash, "Currently working for Teltec actually am here to be a witness. For case against the Director. In 2005 and 2006 was employed by Raffles Group (Hotel) based in Nadi. Only in 2006 came to know the Plaintiff. When I came to buy the Card I was introduced to Amrit. Recognize Amrit Ram, he and his wife came to Teltec. 1st saw them in June. Not in April or May." In cross-examination "I was in Suva one weekend was told by Finacial Controller to get items. In June 2006 was Monday middle of the month. Manoj introduced me to Amrit Ram."

The evidence of Manoj Kumar was "know action against me. Allegation against Teltec. They were supposed to pay my account. My request. I had requested to pay my account. I will re-imburse them. By contra accounts. I had personally requested them to clear the accounts. Nothing to do with Teltec. Nothing on contract or on paper. By word of mouth. They owed me $22,000 something. For cleared DVDs movies, paid for freight and ticket fares, sons school fees and other expenses. Son of Amrit visisted with Vijen. I paid all that school fees – twice. Paid for club – friends of Fiji, lathe machine, typewriter. Delivered to Labasa. Fees close to $5000 paid to Amrits son. I did not ask for receipts. Agreement between me and Amrit done in 2006. In country in April 2006. This agreement done by him, original with him. He came to my office to contra the balance, final agreement" In cross-examination "I owe the money not the company. Personally. 11th April 2006 all invoices to Teltec. Teltec dealt with Aria. Paid for Teltec. I requested personally. Aria knows Teltec. I requested them to Pay not Teltec. When Amrit brought the agreements, he had 2 copies. Did a photocopy. He took the original. I accepted the photocopy. Me gave me a photocopy. Usp invoice paid in front of Vijen.. when I handed the money Vijen was there."

Analysis

This Court has heard all the evidence in Court. It has further scrutinized the documents that were tendered in Court together with the submission that was made. This Court has also had the privilege of reading the ruling of the Master as regards the Winding up action.

The claim by the Plaintiff is for monies due and owing to them by the Defendant Company. The 3rd witness for the Defence is the Director of the Defendant Company and his position is that the Plaintiffs owe him money and he had an agreement with Amrit Ram to offset the Plaintiffs claim. Manoj Kumar in his evidence does not deny asking the Plaintiffs to make the payments. He stated that it was a personal request by him. This Court has noted that all the invoices that were paid, were paid for Teltec and as is stated in evidence of Manoj Kumar upon his direction. Manoj Kumar is the Director of Teltec and he asked payments be paid for Teltec. This Court from the evidence in Court is satisfied that Manoj Kumar, as Director of the Defendant Company asked the Plaintiffs to pay the dues for Teltec.

This Court has noted the claim by Manoj Kumar that there exists an agreement dated 1st May 2006 to offset the sums due to each other. No originals were tendered in Court. Manoj stated that Amrit brought in 2 copies and he took a photocopy after the signing and Amrit had the 2 originals. This Court does not believe Manoj Kumar that he would have taken a photocopy if 2 originals existed after signing. This Court finds that the purported agreement of 1st May 2006 is fabricated. In fact the Court notes that Manoj Kumar signed on Teltec letterheads dated 30th April 2007 that he regretted not being able to pay the loan due to Amrit Ram. This Court has also noted the Manoj signing on Teltec letterhead dated 2nd March 2007 apologizing for the delay in paying the loan. This Court finds odd that Manoj would after signing an agreement to offset the sums would later sign on company letterhead regretting and apologizing for sums due to the Plaintiff.

From the evidence tendered in Court this Court is satisfied that the Plaintiffs have proved their claim against the Defendant company. Manoj Kumar who is alleging that the Plaintiff's owe him and was supposed to be offset has not provided any receipts of the payments he is alleging he made for or on behalf of the Plaintiffs. In fact he is not truthful as can be found from the evidence of Vijen, an independent witness who told this Court that Amnit went by himself to see Manoj. When Manoj stated in Court that he gave the money in presence of Vijen. This Court from the hearing finds that this agreement relied upon by the initiated by Manoj is fabricated and forged to advance his cause. This Court has accepted the evidence of the Plaintiffs. The Plaintiffs succeed with their claim.

This Court Orders as follows:

(a) The Defendant is to pay Plaintiffs a sum of $17,469.32 (Australian Dollars) together with interest at the rate of 25% per month from 30th March 2007 until payment and the total sum shall not exceed $50,000.00.

(b) The Defendant to pay the Plaintiff a sum of $1000 as costs for this action.

(c) The Defendant is to pay the sum claimed and costs with 28 days

28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
25th March 2013