Burns Philp (SS) Company Limited v N. Narottam & Company [1979] FJSC 62; Action 6 of 1977 (26 January 1979)

IN THE SUPREME COURT OF FIJI
AT LAUTOKA

CIVIL JURISDICTION
Action No. 6 of 1977

BETWEEN:

BURNS PHILIP (SS) COMPANY LIMITED
(Plaintiff)

AND

N. NAROTTAM & COMPANY
(Defendant)

For Plaintiff: Messrs. Stuart, Reddy & Co.
For Defendant: Messrs. Vijay Chand & Co.

JUDGMENT

The plaintiff claimed from the defendant the sum of $5615.27 being the balance due and owing to the plaintiff in respect of two vehicles Ar763 and AV889 sold by the plaintiff and delivered to Kings Duty Free Shop at the request of the defendant. The sum was said to be comprised as follows:-

Balance amount on AR763	-$302.00
Balance amount on AV889	-4942.00
Accrued interest from 30/9/76 to 31/12/76	- 371.27
	$5615.27

The plaintiff also claimed interest at the rate of 10% per annum from the 1st January 1977 to date of payment.

The defendant admitted owing to the plaintiff the sum of $4682.00 in respect of the sale of AV889 and on 27/5/77 Stuart J. gave judgment for the plaintiff for this amount and reserved the remaining issues for trial in open court. In giving judgment Stuart J. said, "if the parties want to proceed to trial they must agree upon issues that are clearly and carefully framed." He also made an order for discovery, which in spite of contrary views by the parties, he considered necessary and added "when that is done the action can be set down under Order 34 in the usual way."

The parties submitted affidavits of documents but seem to have done nothing about "clearly and carefully framing the issues" until they came to court when I was handed a document on which was set out the following "Agreed Issues" and Agreed Facts":-

AGREED ISSUES

1. (a) Did the defendant pay to the plaintiff $5827.00 for the vehicle AR763 on or before 18/12/74?

(b) If so claim for $302.00 should be disallowed

(c) If not, judgment for the plaintiff for $302.00.

2. (a) Did the defendant pay to the plaintiff $4702.00 for vehicle AV889 on or before 9/2/76?

(b) If so claim for $239.55 should be disallowed.

(c) If not, judgment for the plaintiff for $239.55.

AGREED FACTS

1. (a) Plaintiff sold and delivered motor vehicle AR763 on defendants Order to Kings Duty Free Limited on 18/11/74.

(b) Cash price was $5827.00 after 5% discount of $302.00. Credit price $6129.00.

(c) Defendant was only entitled to discount if payment was made within 30 days of sale i.e. on or before18/12/74.

2. (a) Plaintiff sold and delivered Motor Vehicle AV889 on Defendant's Order to Kings Duty Free Limited on 9/1/76.

(b) Cash price was $4702.45 after 5% discount of $239.55. Credit price $4942.00.

(c) Defendant was only entitled to discount if payment was made within 30 days of sale i.e. 9/2/76.

This should have been done before the case was set down for hearing and in my opinion rather more care should have been taken over the issues. However, I must be bound by the agreed facts and the agreed issues subject to what I say subsequently and the parties have only themselves to blame if they have not been drafted carefully enough.

The first thing that emerges is that the plaintiff has abandoned the claim for $371.27 interest up to 31/12/76 and the claim for 10% interest form 1/1/77 to date of payment.

It is agreed that in respect of both vehicles the price quoted showed a discount of 5% on the normal price provided they were paid for within 30 days of delivery. This amounted to $302.00 on vehicle AR763 and $239.55 on vehicle AV889.

It is agreed that AR763 was delivered on 18/11/74 and AV889 was delivered on 9/1/76. It is agreed that a cheque for the normal price less $302.00 discount was given to the plaintiff in respect of AR763 and cashed.

The defendant says that it was handed to the salesman who delivered the vehicle on 18/11/74, back dated, but to come within the 30 day credit period. The plaintiff says it was paid on or back-dated to 30/12/74 and therefore after the expiry of the 30 day credit period so that the $302.00 account would become payable.

In respect of AV889 the defendant says similarly that the salesman who delivered the vehicle on 9/1/76 was handed a cheque for the normal price less 5% discount again the cheque being back-dated to take advantage of the 30 day credit period. The plaintiff says that no cheque was handed over then or at any other time and therefore the whole amount was due and owing. It is agreed by both sides that if the cheque was handed over it was not paid in, and so the defendant has already submitted to judgment for the discounted price, although he disputes liability for the amount of the discount.

The only witness called for the plaintiff had no personal knowledge of the transactions themselves and could only refer to the company accounts and receipts. He was not even working for the plaintiff when the first car was sold and delivered. All he could produce was a receipt for $5822.00 dated 30/12/74 and a monthly statement for the defendant for the month of January 1975. He never saw the cheque itself, he was unable to say when it was received, or what was the date on it. All he could say was that it was it was customary for receipts to be issued on the same day as receipt of payment, and from that I am expected to find that the cheque must have been handed over on 30/12/74 or backdated to that date. However I note from the receipt book that no receipts were issued between 24/12/74 and 30/12/74, this being no doubt the Christmas period, so that I do not think I can make any such assumption. I note also, as an indication of the plaintiff’s book-keeping methods that the monthly statements show this cheque as being received on 1/1/75. This error is repeated in the agreed correspondence, being a letter from the plaintiff company to the defendant dated 10/9/76 in which it is again stated the payment of $5827.00 was made in January 1975.

Against this was the evidence of Chandra Khan who said that when AR763 was delivered on 18/11/74 he personally handed to the salesman a cheque for $5827.00 postdated to some time within the 30 day credit period. In addition the defendant's affidavit of documents lists a cheque stub for that amount dated 15/12/74 and Chandra Khan stated that he had handed his cheque stubs to his counsel. If there were any doubt about these the plaintiff could have formally asked for them to be produced but he did not do so.

With regard to vehicle AV889 the plaintiff’s witness could only say that there was no record of any payment being made. Against that there was the evidence of Chandra khan who said that he handed a cheque to the salesman who delivered the vehicle, postdated to some date on before 9/2/76, and the evidence of Ratilal Narottam who said he was present and saw the cheque being handed over. Again the affidavit of documents lists a cheque stub for this amount postdated 9/2/76. Formal production was not asked for. So far as the evidence before me is concerned there is no question that I must accept the evidence given for the defendant. On both occasions when the vehicles were delivered the salesman was handed a cheque for the price of the vehicle in question less discount, and he had those cheques been presented in time the inference is that they would have been met. The only conclusion that I can come to is that payment for the vehicles was not received within the 30 day credit period the fault lay with the plaintiff. Proper tender had been made by the defendant or on his behalf.

The agreed issues have undoubtedly been badly drawn up. For instance what does 2(a) mean? If that issue means "Did the plaintiff receive payment for $4702.00 for AV889 into his accounts?" The answer must be "no." If the cheque was handed over to the plaintiff’s representative, it was clearly mislaid, because it was not paid into the bank. The defendant admitted as much in submitting to judgment for $4682.45 - (There is incidentally no explanation why the discount price should now be put at $4702.00, and not the previously agreed $4682.45). It has not been argued that the critical issues are whether cheques for the discount prices were actually paid into the plaintiff’s accounts before the expiry of the 30 day credit period. Clearly if these were the issues there would have been no argument and nothing for the court to decide.

The evidence and the argument were directed entirely as to whether or not postdated cheques, the postdating being within the respective 30 day credit period were handed over to the salesman was concerned both times but the plaintiff, his employer at the relevant times, has not sought to call him as a witness.

I must assume that had the agreed issues been properly and carefully drawn they would have been as I have stated. The assumption must be that such cheques would have been accepted provisionally as full payment for the vehicles and if presented to the plaintiff's banks in due time would have been met and would infact have constituted payment in full. On this basis, and on the evidence before me I must find for the defendant. I have no reason to disbelieve the witnesses for the defendant and it is quite clear that the evidence for the plaintiff falls far short of that required to rebut the evidence for the defendant. I accordingly dismiss the plaintiff's claim in respect of the agreed issues with costs

(SGD.) G.O.L. Dyke
JUDGE

LAUTOKA
26th January, 1979.