Burns Philip (South Sea) Co. Ltd v N. Narottam & Company [1977] FJSC 137; Action 6 of 1977 (27 May 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 6 of 1977

BETWEEN

BURNS PHILIP (SOUTH SEA) CO. LTD.
Plaintiff

AND

N. NAROTTAM & COMPANY
Defendant

Mr. B.C. Patel for the Plaintiff
Mr. Vijai Chand & Ashok Sharma for the Defendant

JUDGMENT

Burns Philip (South Sea) Company Limited have sued N. Narottam and Company, a firm, who duty entered an appearance. The writ of summons claims $5615.27 and states that this sum is the balance owing by the defendant to the plaintiff in the sale of two motor vehicles AR763 and AV889. The first sale was on 18th November 1974 and the second on 9th January 1976. The particulars allege that $302 is due in respect of vehicle AR763 and $4942 in respect of vehicle AV889 and that interest amounting to $371.27 accrued at 10% per annum between 30th September 1976 and 31st December 1976. The plaintiff also claims additional interest accruing from 1st January 1977. An appearance was entered on behalf of the defendant by Messrs. Gordon and Company of Lautoka but they have been replaced by Messrs. Vijay Chand and Company of Nadi who filed a defence.

The defence denies owing $302 on vehicle AR763 and $4942 on vehicle AV889, but admits owing $4682. The defendant says that the claim has arisen because the plaintiff sold the two vehicles to a third party charging them, by agreement of all parties to the defendant's account. The third party gave a cheque to the plaintiff's agent for the first vehicle but the plaintiff does not appear to have presented the cheque. Similarly with the second vehicle the defendant alleges that a cheque was given to the plaintiff's agent but it has not been presented. It is agreed that both cheques were post dated, and the defendant says that these are only two of several transactions in which the same third party has used the defendant's current account. That defence was delivered on 11th February 1977, but it was not until 2nd May, almost three months later that plaintiff applied for summary judgment under Order XIV of the Rules of the Supreme Court. The plaintiff's credit controller at Lautoka has sworn an affidavit in which he states that he believes that the defendant is merely trying to prolong the proceedings. He does not say what is the important thing in this kind of application that he truly believes that there is no defence to the action. It may well be that the defendant is trying to delay, but I am afraid that the Statement of Claim as explained by the deponent, does not make that apparent to me. Nobody has shown me the mechanics of how the sum of $302 has arisen. It may be 5% on the purchase price of a vehicle but I do not consider that the Court has to work out the purchase price from the meagre particulars given. The second claim appears to raise the perennial issue, if his statements are correct, as to which of two innocent parties is to suffer for somebody's wrong. That is certainly a triable issue. Again the claim for interest would also appear to be a triable issue. I would want it clearly explained to me how a trading firm can claim interest at the rate of $123.75 a month on a debt of $5615.

There will therefore be judgment for the plaintiff for $4682 as admitted by the defendant to be owing and the action will proceed to trial upon the other issues. Mr. Patel for the plaintiff suggests that there is only one issue left, namely as to who is to bear the loss consequent upon the non presentation of the cheques. I think that perhaps rather over-simplifies the matter. If the parties want proceed to trial they must agree upon issues that are clearly and carefully framed. Finally Mr. Patel asked the Court to dispense with further directions and an application under Order 34 and to set the action down for trial, presumably under 0.14 Rule 6 of the Supreme Court Rules. He says that no further directions are required. I do not agree. I would have thought discovery necessary, for each party will have, or should have, much material in the way of accounts, statements etc. to show the other before the action comes to trial. There will therefore be an order that each party make discovery by making and serving upon the other within fourteen days from the date hereof a list of the documents which are or have been in its possession custody or power relating to any matter in question between them in action. That list will include any communication by either party with the persons to whom the cheques referred to in the pleadings were given. When that is done, the action can be set down under Order 34 in the usual way.

The plaintiff had to make an application in order to obtain judgement for $4682.00 and is entitled to the cost of its summons though not of its affidavit in support which is defective. Those costs I fix at $8.40.

(SGD.) K.A. STUART

JUDGE

LAUTOKA,
27th May, 1977.