My Transport Company Ltd v Kumar [2014] FJMC 143; Civil Action 500.2011 (3 November 2014)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION
Civil Action No. 500/2011

BETWEEN:

MY TRANSPORT COMPANY LIMITED
a limited liability company having its registered office at 63 March Street, Suva, Fiji.
PLAINTIFF

AND:

RONESH KUMAR
c/-Cargo Brokers International, Lot 4 Grantham Road, Raiwaqa, Suva, Fiji.
DEFENDANT

Counsels: Mr.Sharma for the Plaintiff
Mr. Haniff for the Defendant

JUDGMENT

INTRODUCTION

1. The Plaintiff filed a writ of summons on 23rd December 2011 against the defendant seeking following orders inter alia:
   
   • (i) Judgment in the sum of $27,737.00
   • (ii) Cost of and incidental to these legal proceedings
   • (iii) Solicitors costs to be assessed by Court
   • (iv) Such further reliefs and orders as this Court deems fit in the circumstances.
     
2. The plaintiff claimed the above amount for the money loaned to the defendant during his employment with the plaintiff.
   
3. The defendant filed his statement of defence on 22nd February 2011 in which he said these payments were benefits given by the plaintiff and therefore he did not owe any money .
   
4. After numerous adjournments the hearing was conducted on 03rd April and 10th July 2014. For the plaintiff 03 witnesses gave evidence and for the defendant only he testified. After the hearing both parties opted to file closing submissions which they filed accordingly and I have considered them also for this Judgment.
   

PLAINTIFF'S CASE

5. PW1 was Mr. Yasin, the CEO of the plaintiff. He said that the defendant used to work with them first as a diesel boy and later as a general manager. He was getting a good salary and part of the benefit was the company giving loans to him. The witness helped him to buy items for the 02 houses that the defendant got. Also the witness tendered documents as exhibits and they were marked as P-1 to P-48. After the defendant left the employment he was called to office where he signed a loan statement agreeing for this amount. This document was marked in the presence of the witness and was also witnessed by his accountant. This loan statement was marked as P-46. The defendant also brought a car after trading in a car company vehicle DV 981 for the value of $16,000 and which was also claimed by the plaintiff. Further the witness said the plaintiff was seeking $27,737.00 with the interest from the defendant.
   
6. In cross- examination the witness said that the signature in P-46 was of the defendant and was witnessed by his accountant (Arvind Segaran) and the plaintiff continued giving loans as the defendant was a good employee. The witness also denied these were benefits and the PW1 also assisted the defendant to buy his properties. In re- examination the witness said the money given was marked as expenses and the defendant owed these amounts to the plaintiff .
   
7. PW2 was Ms. Makereta, the acting manager licencing at the Land Transport Authority. She tendered the vehicle history of DV 981 as P-49. She also tendered as P-50 the history of EH-208 which showed the vehicle was acquired by Go Forward Investment and later disposed to the defendant.
   
8. PW3 was Mr. Rajesh, the credit controller of Shreedhar motors and he said that the defendant traded in DV 981 for a value of $13,000 for a Mitsubishi Outlander EH 208 for a value of $27,543 and the vehicle was transferred to Go Forward Investments . The document regarding trade in and transfer was marked as P-51. The plaintiff closed the case after that.
   

DEFENDANT'S CASE

9. The defendant said he was employed by the plaintiff from 2001 to 2010 and by the time he left he was the general manager there. While the pW1 was away the defendant used to look after the business and in 2006 was paid $250 a week. This increased at the time goes and PW1 never demanded the money back. He was also never informed that the any of the monies were loan. After he left PW1 tried to get him back and the witness also denied signing P-46 acknowledging the loan. He was also a director of Go Forward Investment and this was a different company . PW1 did not provide similar benefits to anyone else.
   
10. In cross- examination he said his salary was increased and was also given airfares and entertainment allowances. He did not ask for a written contract with the benefits. The defendant denied signing P-46 and also making any payments back. In re- examination he said that the vehicle DV 981 was never owned by the plaintiff nor funds for that vehicle came from the plaintiff company .
    
11. In the submission filed by the plaintiff the counsel submitted that there is sufficient evidence to show that the defendant was given these monies as loans and therefore the plaintiff is entitle to recover that amount.
    
12. In his submission the counsel for the defendant strenuously argued that these were given as benefits and even by any event if the Court decides that they were loans then the amount in P-17 could not be considered for this claim as the Go Forward Investment is not a party to this proceeding.
    

ANALYSIS

13. As correctly pointed out by both parties in their respective submissions the main issue to be determined in this case is whether the amount given to the defendant to be considered as a loan or as a benefit. Before considering that issue I would like to address an issue raised by the defendant in his closing submission. He submitted that even though the plaintiff was claiming for sum of $27,737 the amount shown in P-46 is different as it adds to $37,488.63. But this difference arises based on the last figure which the defendant considered as 11,121.00 when the correct figure should have been $1121.10 . After clarifying this issue now I would consider about the main issue. To substantiate their claim the plaintiff relied mainly on document P-46 which they claimed were the loans given to the defendant and further submitted that the defendant by signing that document agreed about that.
    
14. On the other hand the defendant strenuously objected to P-46 . His position was that he never signed that document and submitted that the signature was different from his normal signature. In closing submission counsel for the defendant further argued that the even though there were witnesses for this document the plaintiff failed to call them to corroborate this evidence which this Court need to consider in favor of the defendant .
    
15. When considering the P-46 I find that it shows not only the amount that supposed to be loaned to the defendant but also the repayments that were supposed made by the defendant. Even though the defendant disputed making any payments I find that if it was a forged document there was no need for the plaintiff to include that repayment figures also.
    
16. The defendant in his closing submission set down the amount supposed to be owing to the plaintiff.
    
17. Throughout this hearing thrust of the defendant case was that all these were the benefits given to him by the plaintiff. If that is so I find it hard to figure why these supposed benefits changed from year to year. For example in 2006 he was supposed to be given $16,000 whilst in 2007 this amount only to $3,424.71 and in 2008 only to $275.06. This clearly demonstrates that these were not benefits as claimed by the defendant . Another ground that stands against the defendant is that failing to produce any written agreement to show these benefits.
    
18. Therefore I accept that these amounts were given as loans to the defendant and find that the plaintiff has proved their case on balance of probabilities. But I agree with one issue raised by the defendant in his closing submission. The plaintiff is claiming $16,000 for the vehicle DV 981 that was traded with another by the defendant. During the hearing it was revealed that this vehicle belonged to Go Trading Investment Ltd in which the defendant was director . Only exhibit the defendant marked in this hearing was the D-1 showing the registration of Go Trading Ltd . The argument taken by the learned counsel for the defendant was that as this vehicle belonged to Go Trading Ltd the plaintiff has no right to recover that . Even though the counsel for the plaintiff submitted that these were sister companies I find that there were no evidence led in the hearing to show that they are related apart from PW1 also being a director of both companies. Even if that is so I do not think the plaintiff can recover a vehicle that belonged to another legal entity. Also there were no documents produced by the plaintiff to show that they bought the vehicle in the name of Go Trading Invest Ltd . Therefore I upheld this ground in favor of the defendant and deduct that amount from the sum the plaintiff is claiming in his writ .
    
19. Accordingly I grant the following orders.
    
    1. Judgment in the sum of $11,737.00
    2. Interest of 5% per annum from the date of judgment until full payment. (Total sum with the interest not to exceed $50,000)
    100. Cost of $1000.00 summarily assessed.
         
20. 07 days to file notice of intention to appeal
    

03rd November 2014

H.S.P.Somaratne
Resident Magistrate , Suva