Kumar v Nadan [2013] FJMC 281; Nadi Civil Case 93.2010 (23 July 2013)

IN THE RESIDENT MAGISTRATES COURT
AT NADI WESTERN DIVISON
CIVIL JURISDICTION

NADI CIVIL CASE NO. 93 OF 2010

BETWEEN:

ARVINDRA KUMAR
Plaintiff

AND:

SELVA NADAN
Defendant

Before: Mr. M. H. Mohamed Ajmeer, Resident Magistrate, Nadi
Date of Ruling: Tuesday 23 July 2013

Appearances
For The Plaintiff: Ms. L. Nunume, Babu Singh & Associates, Nadi
For The Defendants: Ms. Sailo, Koyas Chambers, Nadi

JUDGMENT

Introduction

1. On 25 May 2010, Plaintiff filed a Writ of Summons together with his Statement of Claim. In his Statement of Claim praying, inter alia;

(i) Special damages in the sum of $27,000-00.

(ii) Interest.

(iii) Cost.

2. The Plaintiff filed Affidavit of Service on 03 June 2010 stating that the Writ of Summons was served on the within-named Defendant on 26 May 2010.

3. Defendant did not file a Notice of Intention to Defend in time. Instead, on 25 January 2011 he filed a special leave application seeking leave of court to file his Notice of Intention to Defend and Statement of Defence. This leave application has been made some 8 months after the writ was filed. However, the court granted the Defendant leave to file Notice of Intention to Defend and Statement of Defence.

4. The Defendant accordingly on 15 February 2011 filed his Notice of Intention to Defend and Statement of Defence and Counter-claim. He claimed as follows:

(i) The Plaintiff's claim be dismissed;

(ii) Judgment in the sum of $15,612-00;

(iii) Costs on Solicitor/client indemnity basis.

5. In reply to the Statement of Defence and Counter-claim, the Plaintiff stated that he denies that the Defendant is entitled to the prayer and that the Counter-claim be dismissed with cost.

6. The facts of the case as alleged by the Plaintiff are as follows:-

"By a mutual agreement made between him and the Defendant; the Defendant borrowed the sum of $22,000-00 as working capital and promised to repay the said sum within 6-7 months. The Defendant was to pay the sum of $3,000-00 as purchase price for the Coral Coast Office situated at Coral Coast at Sigatoka. The Defendant also promised to make a bank draft in the sum of $2000-00 payable to the Plaintiff but failed to do so. The Plaintiff states that the Defendant owed him the total sum of $27,000-00 which is still due and owing".

7. The Defendant admits that the Plaintiff had sold the Coral Coast Tour business to Dominion Transport Ltd wherein the Defendant is a director. He states that he paid monies for and on behalf of the Plaintiff.

8. As for the Counter-claim, the Defendant states that he paid monies for and on behalf of the Plaintiff as follows:

(a). That the Defendant paid monies for and on behalf of the Plaintiff to Merchant Finance in respect of stamp duties on or around October 2006 in the sum of $5,601-00 via Colonial National Bank Chq. No. 000117;

(b). That in respect of legal fees paid to Messrs Janend Sharma Lawyers on 26 October 2006 regarding transfer of the Coral Coast Tour business from the Plaintiff to the Defendant in the sum of $7000-00 via Colonial National Bank Chq. No. 000115;

(c). That the Defendant paid for the maintenance of four vehicles belonging to Credit Corporation (Fiji) Ltd on 03 November 2006 in the sum of $3011-00 via Colonial National Bank Chq No. 000120.

Plaintiff's Evidence
9. At trial, the Plaintiff gave evidence on his behalf and produced the following documents:-

(a). P/Exhibit 1 - Certificate of Business Name Registration Selva Transfers & Tours;

(b). P/Exhibit 2 - Copy of deposit slips;

(c). P/Exhibit 3 - Notice;

(d). P/Exhibit 4 - Affidavit of Service.

10. In evidence the Plaintiff stated that somewhere in 2006 he wanted to sell his business, Koroko Tours. The Defendant and two others wanted to buy his company. They agreed to buy at $450,000-00. At that point of time he was migrating. They had some problem in approving loan. He already owed to the bank a sum of $350,000-00. If anybody buys his business he will get $100,000-00 in his hand. They gave him a land for security until they get the loan. He gave them $22,000-00. He deposited into their bank account so that they will not default in the payment of the loan. His freehold land was under security for the loan. He deposited this amount to keep business on without default of payment for two months. Selva Nand (Defendant) borrowed the money from him. He's (Defendant) the main person to run the business. He sold his business and his office to Selva for $450,000-00. He sold it to Dominion because they are brothers. Selva sold his office for $3000-00. He gave him $2000-00 at that time to make the draft and send some money to USA because he needed money in US. They paid legal fees to Janend Sharma Lawyers.

11. Under cross examination the Plaintiff stated that he gave $27,000-00 to the Defendant without any document. Only document he had is the bank cheque. He knew the Defendant for 20 years. Payment of $22,000-00 was made at Sigatoka. He left the country after two days of the sale of his business. He gave $2000-00 to make bank draft on or about 06 November 2006. That time we were good friends. He didn't get any receipt for payments. Selva sold his office for $3000-00.

Defendant's Evidence
12. The Defendant also gave evidence for him. He produced the following documents:-

(a). D/Exhibit 1 - Chq No. 0115 dated 26/10/06;

(b). D/Exhibit 2 - Chq No. 0117 dated 31/10/06;

(c). D/Exhibit 3 - Chq No. 0120 dated 23/11/06.

13. In evidence the Defendant stated that he knew the Plaintiff as his personal friend. He had Coral Coast Tours. One day the Plaintiff told him that he wanted to sell his business. They had a meeting at Tatas. He agreed to a price (he didn't say how much). He and the Plaintiff went to their bankers. He was dealing on behalf of Selva Tours. They came to an agreement. When he went to buy, he tricked him by trying to sell the business to Dominion Transport. He paid almost $9000-00 to A. Kumar (Plaintiff) as part of the payment by cheque. He paid $7000-00 as his fees and $5000-00 as stamp duty to J. Sharma. Arvindra (Plaintiff) paid deposit into his bank account - $22,000-00 receipt of Demand Notice but refused to pay that amount. He (Defendant) paid the money to the Credit Corporation for payment of his (Plaintiff) car and the money he paid to J. Sharma. He paid because he tricked him by transferring the business to Dominion. His (Defendant) name was not appearing on the transfer paper. He just paid the money and walked out. The bank paid $450,000-00 to A. Kumar. That's why the stamp duty was paid. One time he paid FJD $2000-00 converted into USD to take his family to USA. There was some other payment which I can't remember.

14. Under cross examination the Defendant stated that he is not director of Dominion Transport but admitted that Selva Transport and Tours as his business. He also admitted that he was represented by Selva Transport & Tours at the meeting with A. Kumar at the restaurant. When D/Exhibit 1-3 shown, he said that these payments were made in respect of the dealing with the Plaintiff. He said that he didn't know anything about the mortgage when shown a copy of mortgage. He told Plaintiff he paid $22,000-00. He (A. Kumar) paid the money he owed. He (A. Kumar) was loyal in that regard. He admitted receipt of Demand Notice but refused to pay that amount.

Determination
15. The issue in this case was whether the Plaintiff is entitled to recover the sum of $27,000-00 from the Defendant as amount due and owing sometime in October 2006.

16. The Plaintiff sold his business, Coral Coast Tours at Outrigger for the agreed price of $450,000-00 to the Dominion Transport Ltd, a company owned by the Defendant and his brothers. He wanted to sell his business because he was preparing to migrate. This has been admitted by the Defendant in his Statement of Defence and Counter-claim (para 1). It has been admitted that the Plaintiff had sold the Coral Coast Tour business to Dominion Transport Ltd wherein the Defendant is a director. However, it is noteworthy that the Defendant under cross examination told that he is not the director of the Dominion Transport Ltd.

17. In his Statement of Defence the Defendant stated that he paid monies for and on behalf of the Plaintiff. He did not particularize the payment nor state why he made such payment. The Defendant had generally denied the Plaintiff's claim and put the Plaintiff to strict proof of the same.

18. Admissibility of the evidence of both parties defends on solely credibility.

19. The Plaintiff's evidence was that he deposited $22,000-00 into the Defendant's bank account. He gave this $22,000-00 to the Defendant as loan. The Defendant during cross examination admitted that the Plaintiff deposited this amount into his bank account but stated he paid this amount because he owed. Notably the Defendant did not explain why the Plaintiff owed to him. He told Selva sold his office for $3000-00. He further told that he gave $2000-00 to Selva to make a draft and send some money to USA.

20. The Defendant told in evidence that he converted some FJD$2000-00 into USD and made a draft and sent it to the Plaintiff who was in the USA. He did not provide any document to confirm this. He did not even mention this in his Statement of Defence. By saying this, the Defendant has impliedly admitted that he received a $2000-00 from the Plaintiff to make a draft and sent to USA.

21. The Plaintiff through his Solicitor sent a Demand Notice to the Defendant. He in court admitted receipt of it. He did not mind to reply the Demand Notice.

22. The cheques (D/Exhibit 1-3) produced by the Defendant to show that he made some payments to the Plaintiff. D/Exhibit 1 shows the payment - $7,800-00 has been made to Janend Sharma Lawyers. This must be payment of legal fees. D/Exhibit 2 shows a payment of $5,601-00 has made in the name of Merchant Finance and D/Exhibit 3, a payment of $3,011-00 in favour of Credit Corporation. The Defendant, says, these payments were made for and on behalf of the Plaintiff. I am unable to accept the Defendant's proposition that these payments were made for and on behalf of the Plaintiff because the cheques D/Exhibit 2 and 3 do not prove that these payments were made for the Plaintiff's account. The Defendant could not produce any receipt to show that these payments were made for the Plaintiff's account.

23. The Plaintiff gave clear evidence. He was consistent in his evidence. He was responding to cross examination questions clearly and promptly. The Defendant was not consistent in his evidence. He contradicted himself by saying that he is not a director of Dominion Transport after he had admitted that he's a director of Dominion Transport. I therefore prefer to accept Plaintiff's evidence as credible.

24. The Counter-claim has been formulated without proper basis hence it is bound to fail. I therefore struck out the Counter-claim of the Defendant.

25. I answer the issue raised in this case affirmatively. The Plaintiff is entitled to recover the sum of $27,000-00 from the Defendant.

26. The Plaintiff seeking interest on his claim at the rate of 5% per annum pursuant to O. XXXII r. 8 of the Magistrate's Court Rule (MCR) from October 2006. According to the rule, where a judgment or order is for a sum of money, interest at 5% per annum shall be payable thereon, unless the Court otherwise orders. In this case the Plaintiff seeking interest from 2006. He did not explain why he is seeking interest from 2006. The Plaintiff has made his claim in Court on 25 May 2010. Hence it is prudent to order interest from that date. I therefore decide the Plaintiff is entitle interest at the rate of 5% per annum from 25 May 2010 until payment of the judgment sum.

27. As a winning party the Plaintiff is entitled to costs of this action. He is entitled cost pursuant to O. XXXIII of the Magistrates Court Rules. Plaintiff is seeking $3000-00 as cost. He has instituted this action on 25 May 2010. He has made nearly 17 appearances through his Solicitors. The Defendant has delayed this action. He filed his Statement of Defence and Counter-claim after 8 months of the claim was filed. Under the denomination of costs is included the whole of expenses necessarily incurred by either party on account of any cause or matter, and in enforcing the decree or order made therein, including the expenses of summoning and of the attendance of the parties and witnesses, and of procuring copies of documents, the fees of court. I therefore considering all I fix costs at $2500-00 which I summarily assess.

Orders
28. I/. There shall be judgment in favour of the Plaintiff in the sum of $27,000-00;

II/. The Plaintiff is entitled to interest at the rate of 5% per annum from 25 May 2010 until payment of the judgment sum;

III/. The Plaintiff is entitled to costs in the sum of $2500-00 which is summarily assessed; and

IV/. The counter-claim of the Defendant is struck out.

M. H. Mohamed Ajmeer
Resident Magistrate