Gosai v Dass [1979] FJSC 31; Civil Action 9 OF 1979 (13 July 1979)

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

Civil Jurisdiction
Action No. 9 of 1979

BETWEEN

JAGDISH CHANDRA GOSAI
f/n Ram Prasad Gosai
(Plaintiff)

AND

HARI DASS
s/o Girdhari

BALBHADRA
s/o Harbans
(Defendants)

Mr.K.C. Ramrakha,
Counsel for the Plaintiff
Dr. S.M. Sahu Khan,
Counsel for the Defendants.

JUDGMENT

The plaintiff possessed a mechanical loader which he had mortgaged to Suva Motors Limited under a bill of sale.

Before that Bill of Sale was discharged the plaintiff purported to sell the loader to the defendants for $21,000. The defendants paid a deposit of $5000 and gave the plaintiff a bill of sale for $16000 dated 26/4/76. Under the bill of sale the defendants were to pay the plaintiff instalments of $1000 per month.

No instalment was paid and the plaintiff seized and sold the loader for $4,600. He now sues the defendants for the balance owing under the bill of sale and is applying to enter judgment under 0.14 r.1 on the ground that there is no defence to the plaintiff's claim.

The defendants allege that they were unaware that the loader was subject to bill of sale in favour of Suva Motors when they purchased it from the plaintiff and that in consequence the bill of sale which they granted to the plaintiff was void. It is submitted by the defendants that the pre-existing bill of sale in favour of Suva Motors amounted to a defeasance whereby that granted by the defendants could be defeated. I am not sure that that argument is tenable if the defendants were not parties to the defeasance provision.

What the defendants actually received from the plaintiff under the contract of sale was not possession from a person who could convey a legal title to the loader but an equity of redemption couple with possession. If the plaintiffs had been owners and not mortgagors of the loader the defendants would still only have held an equity of redemption and possession, because they were mortgaging the loader to the plaintiff. But the defendants on paying the $16,000 would have had the right to claim a legal title from the plaintiffs had the latter held the loader as owner and not as mortgagors under the bill of sale to Suva Motors. As matters stood the defendants on paying the $16,000 would only have had the right to stand in the shoes of the plaintiffs which would simply be the right to pay off anything the plaintiffs owed to Suva Motors and then demand the legal title.

The defendants, if their affidavits are true, were subject to the claims of a mortgagee, namely Suva Motors Limited of whose existence they were unaware.

On the other hand the plaintiffs swear that the defendants were fully aware of the bill of sale already held by Suva Motors; that only a small amount was owing thereunder and that this was paid off by the plaintiffs about 6 months after the defendants "purchase" the loader. Consequently the plaintiffs were in position to convey legal ownership under the dispute bill of sale whenever the defendants paid off what was owing. Of course if it is true that the defendants were parties to such an arrangement they may be liable under the bill of sale.

Questions which could arise if the plaintiffs' allegations are true include whether an equity of redemption of the nature held by the plaintiffs under the pre-existing bill of sale with Suva Motors is a chose in action under the Bill of Sale Ord. Cap.202. If so it cannot be the subject of a bill of sale.

Any decision must depend upon which party is being truthful and such determination can only be arrive at by way of trial.

The application of the plaintiff is dismissed. The defendants are granted leave to defend. The plaintiffs will pay the costs hereof which I fix at $30.00.

(Sgd.) J.T. WILLIAMS,
JUDGE

LAUTOKA,
13th July, 1979.