Muni Chand and Sons Ltd v Vakala [2014] FJMC 77; Civil Action 64.2013 (9 May 2014)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION
Civil Action No: 64 of 2013

Muni Chand and Sons Limited
Plaintiff

Detective Corporal Josaia Vakala and Detective Corporal Petero Tupici
1st Defendants

The Commissioner of Police
2nd Defendant

Urmila Verma
3rd Defendant

For the Plaintiff : Parshotam Lawyers (Subhash Parshotam)
For the 1st and 2nd Defendants : Mr Raikaci
For the 3rd Defendant: Sherani and Co (Ms Rakai)

Ruling

Introduction

In this matter the Plaintiff had filed a Writ of Summons (on 17th April 2013) that the Defendants deliver possession of Motor Vehicle registration number KMC77 to the Plaintiff and that Defendants be restrained from interfering with the vehicle, damages and costs.

Following the filing of the Writ, The Plaintiff's filed a Motion and an Affidavit of Avinesh Chand on 22nd April 2013 seeking that the Defendants deliver possession of Motor Vehicle registration number KMC77 to the Plaintiff and that Defendants be restrained from interfering with the vehicle, that the Defendants deliver the keys to the motor vehicle to the Plaintiff's Solicitors with 7 days of the Order and costs on indemnity basis.

The Plaintiff's wanted to file and an Ex-Parte Motion which the Court converted into an Inter Parte Motion and this was filed with an Affidavit of Ashok Chand on 30th May 2013. Detective Corporal Tupici filed an Affidavit in response on 8th July 2013. The 3rd Defendant (Urmila Verma) filed a notice of intention to defend on 10th July 2013.

The Plaintiff's filed a Statement of Claim on 20th August 2013. An affidavit in Reply of Avinesh Chand was filed by the Plaintiff's on 23rd August 2013. A Statement of Defence of the 3rd Defendant (Urmila Verma) was filed on 4th September 2013.

On 10th September 2013 the Court gave Interim Orders that "no party whether by themselves, their servants, agents or otherwise howsoever are restrained from dealing with the motor vehicle KMC77 and/or FN940 until final determination of this action or further order of this Court."

On 1st October 2013 the 3rd Defendant filed two affidavits in opposition to affidavits of Avinesh Chand and Ashok Chand. On 16th April 2014, Mr Parshottam made an application that the motion filed be heard. The Court set 30th April 2014 for hearing of the motion. On 30th April 2014 all parties were represented and the motion was heard.

The Plaintiff's submission in Court

This Court will briefly summarise the Plaintiff's submission in Court. Mr Parshotam submitted as follows: "2 motions filed. Back to original motion. Numerous affidavits filed. Pleadings are there. 1st Affidavit is of Avinesh Chand, one of the Directors of the Company. The motor vehicle registration number KMC77 is registered in the name of the Plaintiff. Rely on affidavit of Avinesh Chand. 2nd Affidavit is of Ashok Chand. On 28th May received information that the 3rd Defendant was driving the vehicle in Nadi. Now registered to 3rd Defendant and vehicle number changed to FN940. "A-2" – annexure of transfer of ownership of vehicle. Wrote to Commissioner of Police. The Police's position is on the affidavit of Cpl Tupici. Para 7 (c) is a curious statement for the police to make. Police state they used probate to release vehicle to 3rd Defendant. Para 15 police released vehicle to 3rd Defendant. No investigation report. Reply by Avinesh Chand on 23/8/13 – Para 3 and 6. Probate has nothing to do with Muni Chand and Sons Limited. It is a company vehicle. 3rd Defendants affidavit in October in response to Avinesh Chand's affidavit. Para 8 – vehicle was kept in Trust by company for Muni Chand.

The Legal position by the Plaintiff is that the vehicle is in the name of itself and unless that ownership can be displaced by Court Order on declaration of trust or oral trust. 3rd Defendant is asserting, not by any written trust document that vehicle was held in trust.

The 3rd Defendant did not institute proceedings to establish a trust she used police officers. 3rd Defendant took possession; we filed for re-possession of the vehicle. Only then the 3rd Defendant raised trust. Seek an order against the 3rd Defendant to hand over vehicle and keys to plaintiff, seeking mandatory injunction. The owner is seeking the chattel that belongs to it. No proprietary or other rights of the 3rd Defendant over the vehicle. The 3rd Defendant personally signed without company approval.

For the 1st and the 2nd Defendant the Counsel (Mr Raikaci) raised the "State Proceedings Act is relevant in this action. Where the Commissioner of Police is a Party, The office of the Attorney General should be named as a Defendant."

The Counsel for the 3rd Defendant (Ms Rakai) submitted as follows: "2 motions filed. Plaintiff relies on 1st motion. But relies on both affidavits. They can only rely on one affidavit. Court is summary Court. Lot of documents before the Court. The test is 3 fold. Issue of serious question to be tried. No authority before the Court. That company authorizes Avinesh to represent company. Plaintiff not deposed that they have authority to represent company. No resolution before the Court. Counsel submits that affidavit is lacking in this respect. Our defence is that of Trust. Probate and company is different. Vehicle bought by Muni Chand and held in Trust by the company.

Whether application is proper. 4 siblings and other parties involved. The picture of the vehicle could be any picture. Seek be struck out. Substantive affidavit by our client. Position of 3rd Defendant is that vehicle was held in trust. No reply to 3rd Defendants affidavit. Serious question, undertaking as to damages. Rules are for a reason. Need to go into 3 tests. Affidavit is lacking in this regard. Vehicle transfer not unilaterally another Director present, another sibling. One of trust.

Plaintiff not met test for order sought of it. 3rd Defendant made complaint cannot blame 1st and 2nd Defendant. Kept in Trust for her Dad. Court has no knowledge of value of vehicle. No assertion here. Affidavit is sworn evidence. Vehicle belonged to late Dad, registration to Company, belonged to Dad. Plaintiff did not meet the 3 tests. Rules are clear. Seek matter not be dealt with affidavits. Seek oral evidence. Rely on Natural Waters Case.

In reply the Plaintiff's Counsel stated "3rd Defendants Counsel is making much of the Probate. Probate issued on 8th May 2013 by the High Court vehicle transferred on 2nd April 2013. The Court has right to look at the affidavits. 2nd motion filed is due to circumstances changing. 1st motion vehicle with police. 2nd motion vehicle released by police. Came to Court to get Car. Plaintiff is saying it's my Car want it back. Threshold test of Natural Waters and American Cyanide does not apply. Do not need to test the threshold. Seek Court assistance. Police are not assisting. 3rd Defendant has not given a resolution of Transfer. Plaintiff is seeking return of vehicle argument works both ways. Case os resulting transfer – the 3rd Defendant has failed to see that. 3rd Defendant is to establish Trust. No documentary evidence. We did complain to Commissioner of Police. Police helped 3rd Defendant. Application made on 22nd April. This current application is confined to return of vehicles and keys. Seek Writ proceed separately on damages."

Analysis

None of the motions that were filed by The Plaintiff was heard by this Court. The first motion that was filed by the Plaintiff, it was sought that the 3rd Defendant return the vehicle and the keys within 7 days. The Court understands the position of the Plaintiff with respect to the separate motions filed as it related to two different situations (one when the vehicle was in Police custody and second when the vehicle was released by the police) as has been clearly explained in Court by its Counsel. The Court has noted all the representations made and the pleadings and affidavits filed in this Court. The Plaintiff is essentially seeking the return of a chattel, in this case a motor vehicle which is owned by the Plaintiff.

This Court has noted that the motor vehicle belonged to Muni Chand and Sons Limited. The 3rd Defendant in her Affidavit states that "I am the lawful owner of the said vehicle and took possession as it was purchased by my late father and not by the Company and the Company was only registered and holding the vehicle in trust for the Late Muni Chand."

From the documents filed this Court notes that it is not disputed by any party to this proceeding that the vehicle was registered in the name of the Plaintiff. Furthermore it is also not disputed that the 3rd Defendant transferred the registration of the said vehicle into her name. The vehicle currently stands, in her name. The Court also noted from the transfer document that the 3rd Defendant signed for the Plaintiff and transferred it in her name. The argument by the 3rd Defendant is that it was held in trust for her. The Plaintiff's argue that in order for the 3rd Defendant to rely on a Written or Oral Trust it must be submitted and furthermore declared so. The 3rd Defendant in order to rely on the Trust needed a Declaration from the High Court declaring her as the beneficiary under the Trust she is relying on. This Court notes that no such declaration is in order or has been tendered in this Court. As such it is not lawful for the 3rd Defendant to assert a right over the company vehicle which belongs to the Plaintiff. In the absence of any supporting evidence apart from what is being asserted by the 3rd Defendant and any declaration by the High Court of the existence of a Trust this Court finds that no Trust exists for the 3rd Defendant to exert any right over the vehicle.

In this action this Court notes that the question is not about Avinesh Chand or Ashok Chand. The Plaintiff in this action is Muni Chand and Sons Limited. While the two, Avinesh Chand and Ashok Chand are deposing affidavits on behalf of the company, as Directors of the Company. The Court at this stage is not dealing with the issue whether Avinesh and Ashok were given authority to act for the company. That is an issue for the Directors and office bearers of the Company to resolve. As far as the Court is concerned it finds that Avinesh Chand and Ashok Chand are Directors of the Company. The Court is satisfied that they can depose affidavits for the Company. The vehicle belonged to the company. The Directors of the Company are expected to work in interest of their Company and in this case seek to instruct Solicitors and depose affidavits. In this case they have sought the return of the company vehicle which according the them had been taken away from the Company's possession and transferred in the name of the 3rd Defendant.

This Court notes that the vehicle was registered in the name of the Company. It was taken away by the Police Officers for certain investigations. Later it was returned to the 3rd Defendant who then transferred the said vehicle in her name. One issue of concern here for this Court is the role of the Land Transport Authority in accepting the transfer of the vehicle from the Plaintiff, Company (A Limited Liability Company) to the 3rd Defendant. The transfer on behalf of the Company was signed by the 3rd Defendant, an individual. Her argument that it was done in the presence of another Director does not do away with the requirement that the transfer of the company vehicle should have been under a common seal with the signatures of two Directors or Director and Secretary of the Limited Liability Company. The LTA should not have allowed the transfer as was carried out. The transfer of a vehicle for and on behalf of a Company should be by way of common seal of the company and signed by the Directors/Secretary. This was not the case in the transfer of the said vehicle. This Court therefore finds that the transfer was illegal and cannot stand. For this reason the Land Transport Authority is to rectify its error or oversight.

From the evidence before this Court, this Court finds that the transfer by the 3rd Defendant is unilateral and without any legal basis. She did not have any documentation to show that she had a right to ownership of the said vehicle. She did not have any company resolution to state that the said vehicle should be transferred in her name. This Court would not speculate on the actions of the 3rd Defendant as to whether the conversion was by way of deception, or fraud. That is an issue for the relevant parties to pursue.

From the material before this Court it is evident that the 3rd Defendant used the 1st and the 2nd Defendants to assist her in retrieving the vehicle from the possession of the Plaintiff. Once that was done the 1st and 2nd Defendants passed on the vehicle to the 3rd Defendant, who then transferred the said vehicle in her name. This Court finds that the transfer was illegal as there does not exist any resolution for the Transfer of the vehicle from the Limited Liability Company to the 3rd Defendant.

The Orders
This Court for the above-mentioned reasons orders as follows:

(a) Within 12 hours of the service of this Order, the 3rd Defendant forthwith deliver possession of motor vehicle, together with the keys for motor vehicle registration number KMC77 and or FN 940 to Court Sheriff of the Magistrates Court of Fiji at Suva.

(b) The First and Second Defendants are to serve the Third Defendant with a copy of the Order made herein within 12 hours of this Order being made available to them.

(c) The Land Transport Authority is to be served with a copy of this Order and is to restore the ownership of the said motor vehicle registered as KMC77 and/or FN940 to the Plaintiff until further orders of this Court.

(d) The Defendants and the Land Transport Authority whether by themselves, their servants, agents or otherwise are restrained from dealing with the said motor vehicle registered as KMC77 and/or FN940 until further orders of this Court.

(e) The cost of this action be paid by the Defendants on an indemnity basis.

Chaitanya Lakshman
Resident Magistrate

9th May 2014