Rokoluve v Dayal [1978] FJSC 14; Civil Action 270 of 1973 (26 September 1978)

IN THE SUPREME COURT OF FIJI
Civil Jurisdiction

ACTION NO 270 OF 1973

Between:

LISI ROKOLUVE
Plaintiff

and

INDAR DAYAL
s/o Deo Narain
Defendant

JUDGMENT

The plaintiff claims from the defendant the sum of $1,550 being the amount of a cheque drawn on the Australia and New Zealand Banking Group Limited Suva dated the 26th March, 1973 which upon presentation to the bank was dishonoured.

The cheque is expressed to be payable to the plaintiff or bearer and there is no dispute that it bears the signature of the defendant as the person drawing the cheque.

On the back of the cheque appears the words "no arrangement" words used in banking circles when refusing to honour payment of the cheque to indicate the drawer of the cheque had made no arrangements with the bank on which the cheque was drawn to meet the cheque.

The plaintiff stated in evidence that she had known the defendant for some time before he approached her to obtain money from her. She had also known one Ramlakhan for some years.

Some time in 1972 the defendant and Ramlakhan came to see her. The defendant brought a dozen eggs and some shellfish (kais). He brought with him the cheque exhibit 'A' which had the plaintiff's name on it with the amount of $1,550 already written on it. The defendant asked the plaintiff to give him $1,500 in exchange for the cheque for $1,550 and offered to deposit with her his certificate of title. This approach was made on a Friday but the plaintiff did not then have $1,500 available.

On the following Monday the money was available and she handed to the defendant the sum of $1,500 in exchange for his cheque for $1,550 and deposit of the title.

The plaintiff stated the defendant signed the cheque in her presence but whether this was on the Friday or the Monday is not clear from the evidence.

The cheque was post-dated but the date it was handed to her is not known. On or after the 26th March 1973, the date of the cheque, the plaintiff presented the cheque to the bank on which it was drawn and learnt there was no money to meet the cheque. It was returned to her and bears as I have stated the words "no arrangements" on the back of it.

She stated she consulted her lawyer who demanded payment of the cheque and when payment was not made she instructed that a writ be issued and this writ was issued on the 28th August, 1973.

The Court file indicates that judgment was entered against the defendant on the 17th May 1974 in default of appearance by the defendant. On the 19th June 1974 a writ of Fieri Facias was issued.

The evidence of Faiz Mohammed a law clerk employed by Messrs. Sherani and Company the plaintiff's solicitors indicates that on the 7th August 1974 the defendant accompanied by the Court Bailiff went to Messrs. Sherani and Company's office where the witness recorded instructions given by the defendant to prepare a mortgage and a bill of sale to secure a loan of $1,650 and arrangements were made to have the writ of fieri facias issued by the plaintiff withdrawn. On the same day Messrs. Sherani and Company wrote to the Deputy Sheriff asking for the writ of execution to be withdrawn. The defendant did not return to execute the mortgage and the bill of sale.

On the 22nd October 1974 the defendant applied to have the judgment set aside and an order was made setting aside the judgment on terms.

The defendant's defence, which was amended during the hearing, denies indebtedness to the plaintiff. He denies he issued the cheque in favour of the plaintiff but if he did so he claims there was no consideration for the cheque.^, He states the cheque when he signed it was a blank cheque and the cheque was to be filled in by the said Ramlakhan, an intended partner of the defendant, in a business called "Wailoku Farm". He states that the cheque was intended to be completed by Ramlakhan and utilised by Ramlakhan to close an account at the Australia and New Zealand Banking Group Limited Suva in the name of Wailoku Farm. In the alternative the defendant claims the plaintiff is an unlicensed money lender and the contract for repayment of the money lent is unenforceable by virtue of sections 15, 16, and 21 of the Moneylenders Act Cap. 210.

The defendant gave evidence and consideration of his evidence and other evidence before me satisfies me that the defendant is a person whose testimony cannot be accepted. The falsity of his testimony was not only apparent in the manner in which he gave evidence and what he said but also by documentary evidence.

In evidence in chief he alleged the first time he had ever seen the plaintiff was the first day she appeared in Court. The plaintiff on the other hand gave evidence of her prior association with the defendant. She had known him for some time before he approached her to obtain money from her. She had purchased eggs from him in the market although the defendant alleged he had not sold eggs in the market. She was not challenged on this evidence.

The defendant also denied he ever had an account with the Australia and New Zealand Banking Group Limited. The cheque exhibit 'A' which he signed and which he said was to close the business account has, as I have stated, the words "no arrangements" written on it. These words indicate the existence of an account but no arrangements made to meet the cheque.

The defendant with Ramlakhan signed an application for registration of their farm under the name of Wailoku Farm (Exhibit 'G'). His denial of facts stated in exhibit 'G' emphasised his total lack of credibility.

He denied he and Ramlakhan had commenced the poultry and piggery business in October 1st 1972 although the application stated this as a fact. He knew nothing about a piggery. He had also signed an application for a loan from the Fiji Development Bank in which there is reference to the piggery. He denied a number of facts stated on that application.

The defendant was evasive in answering questions and like many witnesses who cannot tell the truth he said a great deal more than he should have in answering questions. In particular he made a very bad slip when relating the circumstances in Ramlakhan's office when he signed the cheque exhibit 'A'. He stated one of the girls started filling in the body of the cheque. This was put to him by the Court after he had completed his evidence. He denied he had said one of the girls started filling in the cheque (the interpreter when called upon by me confirmed my recollection and marginal note I made at the time).

It is not necessary to specify several other instances of false statements made by the defendant other than one which is of relevance.

The defendant denied that at the time the plaintiff alleged she paid him $1,500 he was looking for $1,500 to put into the business he was carrying on with Ramlakhan.

The defendant produced a copy of a letter he wrote to the Secretary of the Law Society dated 26th October 1972. This letter indicates that in May 1972 he approached Messrs. Parshotam Chauhan and Company solicitors to arrange a loan of $1,500 and deposit his certificates of title with them.

Asked about this proposed loan he stated "It is not true as stated in my letter to Law Society I was seeking loan of $1,500."

There is no doubt that a short time after May 1972 the defendant's title was in the possession of the plaintiff and according to her evidence the defendant was seeking a sum of $1,500 which she paid him.

I accept the evidence of the plaintiff and find as a fact that some time in 1972 she paid the defendant the sum of $1,500 and received in exchange the cheque exhibit 'A' for $1,550 post-dated to the 26th March 1973 together with the defendant's title. I also find as a fact that the cheque was dishonoured on presentation to the bank on which it was drawn and that the defendant has not paid the sum of $1,550 to the plaintiff.

The consideration for the cheque was the sum of $1,500 which the plaintiff paid the defendant and on the cheque being dishonoured the plaintiff had an immediate right of recourse against the defendant.

The defendant as an alternative defence claims the plaintiff is an unlicensed moneylender and the loan transaction is unenforceable.

While the plaintiff spoke freely about the defendant's seeking a loan of $1,500 in my view on the facts the transaction was not a loan at all but the purchase of a post-dated cheque - a bill of exchange - for $1,550 at the discount price of $1,500. It follows that the provisions of the Moneylenders Act has no application. Meston in The Law Relating to Moneylenders 4th Edition at page 19 discusses the discounting of notes. He refers to an unnamed case apparently reported in (1932) 96 J.P. 62 as to whether a man in the habit of cashing seamen's advance notes and deducting a small amount was a moneylender within the statute. The opinion was expressed and adopted by the learned author that such a man does not lend money but discounts the notes. In the instant case the plaintiff on the facts gave $1,500 in exchange for a post-dated cheque for $1,550.

If I am wrong in my view on the evidence before me, that the transaction was not a loan, I would still hold that the plaintiff was not a moneylender within the meaning of that term in the Moneylenders Act.

The plaintiff was at the time engaged in domestic duties. She was at one time a market vendor and made and sold mats. She denied she carried on the business of moneylending or held out she was lending money. Her savings amounted to a sum of about $2,000. From time to time infrequently and sometimes at long intervals she would lend small sums to relatives and friends. She did not ask for interest but sometimes borrowers would give her extra money when repaying loans.

At the time she gave the money to the defendant she had previously given Ratu David Tonganivalu $2,000 in exchange for his cheque which cheque when cleared provided the funds for the transaction with the defendant.

She also made what she said was a loan to a Rotuman who gave her a cheque in exchange for her cheque. There was as stated small loans to friends and relatives in her village and to one Charlie.

It is clear from her evidence which I accept that her friends and relatives called on her for small loans from time to time and from her savings she accommodated them leaving it to them either to repay the loans or the loans with an additional amount. She did not seek interest and did not hold herself out as a moneylender.

Mr. Maharaj quoted Same v. Sheriff Mohammed & Ors. 5 F.L.R. 13 in support of his argument that the plaintiff was a moneylender but that case is clearly distinguishable. There the plaintiff failed to satisfy the Court that the presumption raised by section 3 of the Moneylenders Act did not apply. He failed to satisfy the Court that he was not a moneylender at the time of the loan.

In the instant case I am satisfied by the plaintiff's evidence that her business was not that of moneylending and that she did not carry on or advertise or hold herself out as carrying on that business.

Meston in The Law Relating to Moneylenders also refers to one of the cases quoted by Mr. Ramrittu.

In Litchfield v. Dreyfus [1906] UKLawRpKQB 32; (1906) 1 K.B. 584, the plaintiff in that case assisted friends and persons whom he had had business with with loans and by discounting bills for them. He was held not to be a moneylender, Farwell J. said:

"The act was intended to apply only to persons who are really carrying on the business of moneylending as a business not to persons who lend money as an incident of another business or to a few old friends by way of friendship."

The learned Judge also said in that case:

"But not every man who lends money at interest carries on the business of money-lending. Speaking generally, a man who carries on a moneylending business is one who is ready and willing to lend to all and sundry, provided they are from his point of view eligible .... It is a question of fact in each case."

In Edgelow v. MacElwee (1918) 1 K.B. 205 McCardie J. in referring to the definition of a moneylender under the Moneylenders Act (1910) (Imp.) said:

"A man does not become a moneylender by reason of occasional loans to relatives, friends or acquaintances whether interest be charged or not. Charity and kindliness are not the bases of usury ... There must be a business of moneylending, and the word "business" imports the notion of system, repetition, and continuity.

Each case must depend on its own peculiar features. It is ever a question of degree."

The plaintiff did make a number of loans to relatives, friends and acquaintances. Some were with interest and others were not. She has satisfied me that she was not in business as a moneylender and I hold as a fact that she was not at the time she paid the defendant $1,500 a moneylender within the meaning of that term in the Act.

There will be judgment for the plaintiff for $1,550 with costs to be taxed on the higher scale.

The defendant on the 4th December 1974 paid into Court the sum of $1,580. This sum is to be paid to the plaintiff or her solicitors if there is no appeal from this judgment.

R.G. Kermode
JUDGE

Suva,
26th September, 1978.