Dijendra Singh Limited v. Colo North Logging Company Ltd. [1977] FJSC 143; Civ. Action No. 99 of 1977 (17 June 1977)

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

Civil Jurisdiction
Action No.99 of 1977

BETWEEN

DIJENDRA SINGH LIMITED
(Plaintiff)

AND

COLO NORTH LOGGING COMPANY LTD
(Defendant)

Mr. G.P. Shankar, Counsel for the Plaintiff
Mr. A. Patel, Counsel for the Defendant.

JUDGMENT

This is a summons by a plaintiff asking for an interim injunction in connection with a contract which he entered into with the defendant in 1973.

The contract which is annexed to the plaintiff’s statement of Claim reveals that the defendant agreed to supply the plaintiff with 1000,000’ of logs per year for a period of 15 years.

In his statement of claim the plaintiff alleges that the defendant has failed to supply the quota of logs agreed upon and that over a period of 4 years to date the shortages have accumulated to over 2000,000'. It alleges that in consequence the plaintiff’s sawmill has not been working to capacity and he has therefore suffered damage and further alleges that as from 2/5/77 the defendant has stopped deliveries of logs. It contains a prayer for specific performance by the plaintiff.

Along with his statement of claim dated 25/5/77 the plaintiff filed a summons asking for can interim injunction ordering the plaintiff not to cease deliveries of logs. In support of the summons the plaintiff’s managing director Dijendra Pratap Singh filed an affidavit to which is annexed certain correspondence which has passed between the parties in regard to non-delivery of logs. Included in the annexed correspondence is a letter from the defendant to the plaintiff which is marked Annex ‘F’ and is dated 21.4.77 and which points out that the reason for non-delivery is the plaintiff’s failure to pay for logs already delivered in accordance with the mode of payment set out in clause 9 of the schedule to the agreement. The defendant's said letter also alleges that deliveries for January and February 1977 worth $1330 and $1886 respectively have not been paid for and threatens to cease future deliveries unless payment is made. It makes it clear that the defendant is not repudiating the contract but is simply ceasing to deliver until the outstanding sums are paid. It also states that deliveries of logs made in March 1977 amount to $6882 and that payment for them will be due on 30/4/77. Under clause 9, to which I will later, payment has to be within 7 days after the end of the month in which delivery was made. It appears that although the March delivery should have been paid for by 7/4/77 the defendants were allowing the plaintiffs until 30/4/77 to make payment i.e. a whole month instead of 7 days.

On 30th April the plaintiff replied to the above letter and his reply which is annex G to his affidavit says that $6,882 was the balance due from the plaintiff to the defendants as at 31.12.76, and this adds weight to the defendant's complaints for deliveries are overdue. It refers to the issue by the plaintiff of a cheque dated 15/5/77 for the $6,882. It is apparent that the said cheque must have been post-dated to 15/5/77 because the plaintiff's letter referring to it is dated 30/4/77. It would seem from letter that the plaintiff was very tardy payer. The plaintiff's said letter of 30/4/77 complains that the invoices of the January and February deliveries had not been received.

The defendant filed an affidavit in reply which refers to other correspondence including the defendant's undated letter replying to the plaintiff's above mentioned letter of 30/4/77. It is headed "Non-payment account." That undated letter was obviously written by the defendant in May 1977 because it refers to the plaintiff's post dated cheque of 15/5/77 for $6,882 and saying it was not accepted as payment; it also mentions another cheque from the plaintiff for $2,500 which was dishonoured and was subsequently and it includes copies of the invoices for deliveries made by the defendant in January and February 1977 which the plaintiff said had not been received; and it points out that the amount due to date from the plaintiff to the defendant is $12,814.

At the hearing of the summons Mr. Shankar, for the plaintiffs owed approximately $13,000 and he promised if the injunction were granted that they would pay $6000 forthwith and the balance within 30 days of the resumption of supplies of logs. He submitted that a failure on the part of the plaintiffs to pay for one or two deliveries of logs and did not justify the defendants in refusing to supply any further logs. Mr. Shankar, with his customary thoroughness in such matters, had already supplied the court with a list of the authorities he relied upon. The list appears in this file and therefore there is no need for me to record them. Suffice it to say that the authorities to which he referred on the issue of instalments were dealing with cases where one party was repudiating an entire instalment contract because of the other's failure to pay for or to deliver ( as the case may be) one or two instalments. All the cases concerned contracts where that parties had not set out the precise effect of non-delivery or no-payment and the Courts were endeavouring to ascertain and give effect to the intention of the parties.

The instant case differs considerably from those cited by Mr. Shankar in that the obligations of the parties are clearly and succinctly set out. Para 4 of that agreement requires the defendant to supply 1000,000' of logs to the plaintiff each year as from 1/10/73 keeping the flow as even as possible. This summons and no doubt the statement of claim rests upon clause 9 which reads:-

"9. Payment for logs delivered during any month shall be made in full within 7 days of the end of that month. Failure to make payment shall entitle the purchaser (n.b. defendant) to cease delivery of logs until payments are brought up to date. Logs not delivered during such period will be deducted from the total allowable for the year."

It should be unnecessary for me to state that where the parties have in clear and unambiguous terms stated the precise way in which a contract is to be fulfilled or performed and the exact steps which one party may take when the other fails to perform his obligation when the Courts will not interfere by substituting some other mode of performance. The law in that respect is reiterated in effect by S. 33(2) of the Sale of Goods Ordinance Cap. 206 which deals with instalment contracts. It reads as follows:-

"S.33(2). Where there is a contract for the sale of goods to be delivered by stated instalments which are to be separately paid for and ------ the buyer neglects or refuses ------ to pay for one or more instalments, it is a question in each case depending on the terms of the contract and the circumstances of the case whether the breach of contract is a repudiation of the whole contract or whether it is a severable breach giving rise to a claim for compensation but not a right to treat the whole contract as repudiated."

Of course in the instant case the defendant is not treating the entire contract as repudiated and is not in any way threatening to rescind. His letters simply sat that he will resume deliveries when the plaintiff fulfils his obligation of paying for what he has already received in the manner contemplated by clause 9.

I do not think clause 9 could be more lucid and unambiguous. It is absolutely clear on the affidavits and from plaintiff’s counsel's admissions and from his offers to pay the arrears that the plaintiffs are in breach of clause 9. In fact the defendants have allowed them 30 days in which to pay instead of the agreed 7 days under clause 9 and even then the plaintiffs have failed to pay within the extended period. Whenever deliveries stop for a period because of non-payment, it follows from clause 9 that the plaintiffs will forfeit the right to the deliveries which would normally have been made during that period. It is apparent that if deliveries lawfully cease for a period of time because of non-payment the plaintiffs will receive less than 1000,000' in that year.

It would appear from the affidavits that the defendants are already receiving exactly what they pray for in the statement of claim, namely specific performance of clause 9 of the contract. The plaintiff at this hearing is asking for a resumption of deliveries but to accede to his submissions would not be to grant a resumption by way of specific performance. He is requesting this Court to grant him further extensions of time in which to pay for logs which under clause 9 he should have paid for months ago. If I were to accede I would be amending clause 9 by extending the time for payment to suit the plaintiff’s requirements. How can I order the defendant to resume deliveries even though he has not been paid in full when the clear provisions of clause 9 are that he has the right to suspend delivery in the circumstances?

This summons cannot succeed. The plaintiff has not shown the existence of a triable issue.

If the plaintiff proposes to pursue this litigation he should carefully re-examine his statement of claim and re-frame his allegations in the light of clause 9, provided of course he can adduce evidence to support them.

The application for an interlocutory injunction against the defendant fails. The plaintiff will pay the defendant's costs which I fix at $60.00.

SGD. (J.T. WILLIAMS)
JUDGE

LAUTOKA
17th June, 1977.