Karan v Sumer [1979] FJSC 14; Civil Appeal 6 of 1979 (6 July 1979)

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

Civil Appeal No. 6 of 1979

BETWEEN

BAL KARAN
s/o Behari
Appellant

AND

RAM SUMER
s/o Ram Asre
Respondent

Mr. C. Gordon, Counsel for the Appellant
Mr. S. Prasad, Counsel for the Respondent.

JUDGMENT

This is an appeal from the decision of the magistrate at Lautoka giving judgment for the plaintiff for the sum of $759.01 and costs.

The particulars of the claim show a sum of $824.28 owing by the defendant to the plaintiff under an acknowledgement of debt dated 21/5/73 less a total of $388 paid in three instalments on 28/6/76, 29/1/77 and 21/6/77, and interest at 10% per annum on the amounts outstanding at various times leaving an amount still due and owing as $759.01.

That figure is clearly wrong, being $100 too high, the error creeping in where the particulars state $756.61 less $88 paid on 29/1/77 equals $768.61 whereas it should of course equal $668.61. There will have to be adjustments to the various calculations of interest and I make the figure which should be due and owing according to the particulars of claim as $646.18 and not $759.01.

The basis for the claim was an acknowledgment of debt signed by the defendant on 21/5/73, but the evidence given by the plaintiff and other witnesses was to the effect that the plaintiff's father had lent the defendant some money to purchase a vehicle, but the defendant had not repaid it. The plaintiff's father found his health failing and wished his son to bear the burden of the debt. The plaintiff, his father and the defendant then met, the acknowledgment of debt was drawn up and signed by the defendant in the presence of all three.

Although in a written statement of defence the defendant gave another explanation for the acknowledgment of debt he gave no evidence and so the court is bound by the evidence given by and for the plaintiff.

It seems to be an accepted fact from the pleadings, although there was no evidence on the point, that since the acknowledgment of debt the defendant has paid to the plaintiff a total of $388, and although in his written statement of defence the defendant counterclaimed that this was paid under a mistake, again it must be accepted that the payments were made for the purpose of repaying the amount stated in the acknowledgement of debt. So there seems to be no question but that the defendant recognised that he was under an obligation to pay money to the plaintiff.

This really makes nonsense of the 1st ground of appeal that the magistrate has misconstrued the acknowledgement of debt because the plaintiff had said that he was not owed money by the defendant. What the plaintiff said was "No - on 21/5/73 [the date of the acknowledgment of debt] the defendant owed me no money personally - he owed the money to my father and my father assigned to me his debt." Clearly what the plaintiff was saying was that the money was not originally owed to him but to his father, but clearly also unless he thought that after the acknowledgment of debt the defendant did owe money to him he could hardly have sued upon it. Clearly also when he said his father assigned the debt to him, that was the sort of inaccurate language that might be expected of a lay man. A lay man is unlikely to know the difference between an assignment or a novation. Even lawyers are sometimes less than precise in distinguishing between them. Hence the use of the word "assignment" in the defence to the counterclaim.

From the evidence before the court it is clear that there was no proper legal assignment of the debt owed by the defendant to the plaintiff's father. Whatever the debt was, it was replaced by another debt owed by the defendant to the plaintiff, and as the father himself said he no longer had any right to recover the debt from the defendant. The new debt was recognised by the defendant in the presence of all three parties, and although the defendant's counsel has argued that there was no consideration for the novation, the acknowledgment of debt itself sets out the consideration, namely that the defendant was to be given extra time in which to pay off the debt.

The appeal is without merit and is dismissed with costs.

(Sgd.) G.O.L. Dyke

JUDGE

LAUTOKA,
6th July, 1979