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Interioz & Exterioz Engineering and Civil Engineering Works Ltd v Aleem [2025] FJCA 119; ABU0011.2023 (25 July 2025)

IN THE COURT OF APPEAL, FIJI
On Appeal from the High Court of Fiji at Suva

CIVIL APPEAL NO. ABU 0011 of 2023
High Court Civil Case No. HBC 268 of 2008

BETWEEN:

INTERIOZ & EXTERIOZ ENGINEERING

AND CIVIL ENGINEERING WORKS LIMITED
1^st Appellant

AND
KALPESH KUMAR PATEL
2^nd Appellant

AND

ABDUL ALEEM
1^st Respondent

AND
ABDUL SHAMEEM
2^nd Respondent

Coram
Prematilaka, RJA
Dobson, JA
Heath, JA

Counsel

Ms. M Chowdhury for the Appellant

Mr. A K Singh for the Respondent

Date of Hearing: 9 July 2025
Date of Judgment: 25 July 2025

JUDGMENT

Prematilaka, RJA

[1] I agree with reasons and orders proposed by Dobson JA.

Dobson, JA

Introduction

[2] This appeal arises in civil proceedings that were originally commenced in 2008. They have a protracted history. The immediate issue is an appeal from the High Court decision on 16 February 2023 refusing the plaintiffs’ (appellants’) application for an adjournment of the substantive hearing of claims set down to begin that day. Consequent on the refusal of the adjournment application, the Judge struck the proceedings out and ordered costs in favour of the defendants (respondents), including an order for wasted costs. Those orders are challenged on the grounds that they reflected a wrong exercise of the Judge’s discretion.

History of the proceedings

[3] The second appellant (Mr Patel) claims that he agreed to help the respondents when they were in financial difficulties in 2004. The arrangements included the incorporation of the first appellant (the company) and capitalising it sufficiently to pay off the respondents’ then creditors. Mr Patel claims that the arrangements were to include the transfer to the company of a property that would be sufficient security for the borrowings that were agreed to be undertaken by the company. Because Mr Patel was in good standing with the Bank of Baroda, he facilitated the borrowing on the basis, purportedly only for the short term, of his own personal guarantee. Mr Patel had substantial funds lodged with the bank.

[4] Repayments on the loan fell into arrears, the bank refused to allow Mr Patel access to the funds he had lodged with it and he discovered that the property intended as security for the bank’s advances had instead been transferred into the first respondent’s own name.

[5] The proceedings filed in 2008 sought orders for the property to be transferred into the company’s name, and for Mr Patel’s personal guarantee to be replaced by security over the property for the borrowings that had been undertaken.

[6] The action was set down for hearing in May 2012 and at that time the respondents had not filed a statement of defence. That led to an interlocutory judgment entered against them and their application to set that judgment aside was unsuccessful. However, in 2014, when the appellant’s solicitors requested the Registrar of Titles to reverse the transfer of the property back from the first respondent into the name of the company, the Registrar refused, apparently because that step was not expressly ordered in the interlocutory judgment and it involved an issue of fraud that had not been determined in the judgment.

[7] The appellants’ solicitors took steps to procure a further judgment that would entitle them to retransfer the property and the matter was set down for hearing on 16 February 2023. At that time, Mr Patel was in the process of being diagnosed with a bowel or colon obstruction and had had a colonoscopy. His discomfort was such that he could not face sitting in court for two days. A medical report was provided in support of the application for an adjournment of the hearing. Justice Brito- Mutunayagam gave no reasons for declining the adjournment. However, the basis for his decision can be readily discerned from his exchanges with counsel about the application, the transcript of which is annexed.

The company’s status

[8] Since lodging the appeal, the parties have discovered that the company has been deemed deregistered on account of it not being reregistered pursuant to a statutory requirement for that to occur before 31 December 2021. The appellants’ solicitors had requested the Registrar of Companies to reregister the company but that has not occurred as the respondents notified their opposition to it occurring. Shortly before the current appeal hearing, solicitors for Mr Patel made application to the High Court for an order that the Registrar reinstate the company’s registration. That application, under s609 of the Companies Act 2015, remains unresolved.

[9] The respondents have sought a strike out of the appeal on the basis that the first appellant is no longer (or not currently) in existence and therefore cannot have standing. Further, they contend that Mr Patel as second appellant only has status as a director of the non-existent company. As such, his standing is arguably dependent on the continued existence of the company and against that background we now turn to the issues raised by the appeal.

The decision under appeal

[10] In the absence of reasons by the Judge for his orders disallowing an application for adjournment and striking out the proceedings and ordering costs, the justification for those orders is to be discerned from the transcript of the Judge’s exchanges with counsel that ended in those orders being made. The following points are tolerably clear:

1. The Judge was frustrated at the prospect that a fixture that had been scheduled to start that day appeared unable to proceed, leading to a measure of impatience in assessing the merits of the adjournment application.
   
2. There were inconclusive exchanges about the adequacy of the indisposition of Mr Patel, which his counsel submitted was justified by the medical report that had been tendered to the Court.
   

100. The Judge explored commencing the hearing without Mr Patel, if a subpoenaed witness from the Bank of Baroda had been available, which was not the case. This prospect was pursued despite the appellants’ counsel pointing out that the evidence from the bank witness was not of material value without Mr Patel’s evidence. It said nothing of the futility of proceeding without a party whose evidence no doubt would be challenged.
     

4. The respondents had indicated that they would not oppose an adjournment, subject to being paid a substantial amount for wasted costs. During the exchanges with the Judge, Mr Singh put that at about $10,000 as indemnity costs. The appellants opposed any such order of that magnitude.
   
5. The Judge was critical of what he saw as the delayed preparation for trial by the appellants of what he saw justifiably as an old dispute.
   

The appellants’ standing

[11] It is inarguable that the company presently does not have standing to participate in the proceedings. However, we are satisfied that Mr Patel has standing in his individual capacity to pursue claims against his former co-shareholders and directors for conduct allegedly in breach of obligations owed to him that caused him loss. His standing does not depend on his continuing in office as a director of the company. It may be that the terms, and even causes of action on which he pursues his personal claims may need to be repleaded, especially if the company is not reregistered, but that prospect can also not deprive him of standing to advance the current appeal.

Did the Judge exercise his discretion on a wrong basis?

[12] The age of the case could have been relevant to assessing the justification for the adjournment sought. However, Mr Singh did not urge prejudice arising from how old the relevant events were in opposing the adjournment at the time. We do acknowledge that Mr Singh has raised the difficulty in witnesses accurately recalling events so old in the present argument, but he accepted that no weight was put on this point in opposing the adjournment before the Judge.

[13] The Judge did not explore with counsel what range of factual matters were in issue, or how much of the case relied on documents that remained available.

[14] Whilst a firm judicial approach to reducing delays in the resolution of civil proceedings may be laudable in general terms, it should yield to a case-specific analysis of the competing merits of granting a party further time, when credible grounds for such a request are present. This is especially so where the necessary consequence of refusing an adjournment is the strike-out of a proceeding bringing it to an end without the plaintiff having the merits determined.

[15] Here, the Judge’s primary focus, with respect, appears to have been a concern to bring a conclusion to a very long-standing proceeding, the continuation of which would mostly likely worsen the statistics on the average age of civil proceedings in his court. Even if that rationale is overstated, the prospect of it affecting the exercise of the Judge’s discretion justifies this Court in making a fresh assessment of the relevant factors.

[16] A fundamental consideration as matters now stand is that if the matter had been forced on at the time, or after a short adjournment, issues would have been joined on the shared misapprehension that the company continued as a plaintiff. Its deregistration has only been drawn to attention of the parties since Ruling under appeal, but having done so, the impact of that is preferably addressed conclusively before the substantive issues are determined.

[17] The non-availability of Mr Patel was explained by a doctor’s report which appeared to justify the application. Although Mr Singh suggested that Mr Patel had been seen out and about shortly before the hearing, the Judge recognised that that did not cast convincing doubt on Mr Patel’s claim to be indisposed and his counsel suggested hearing from the doctor.

[18] In those circumstances, we are inclined to accept that the application was justified on grounds of Mr Patel’s unavailability, his evidence being fundamental to the case.

[19] Should the extent of delays up to that point have disentitled the plaintiffs to what would otherwise be a justified adjournment? We think not. Both sides had caused various delays since the proceedings began and no particular circumstances causing prejudice to the defendants by virtue of the passage of time were raised before the Judge.

[20] The Judge had alternatives to strike-out, by imposing terms designed to require prompt resumption of the substantive hearing, subject to Mr Patel’s health being adequate for him to play the prominent role required. Such relevant conditions look different now.

[21] We are satisfied that the Judge erred in the exercise of his discretion not to grant the adjournment sought. We accordingly allow the appeal and reinstate the appellant’s proceedings on the terms set out below.

[22] Mr Singh’s exchanges with the Judge referred to a counterclaim filed by his clients. The reinstatement of the proceedings obviously includes reinstatement of that counterclaim. The respondents should have time when considering whether to amend their statement of defence once they are served with the amended statement of claim that we will provide for, to also re-plead their counterclaim.

Heath, JA

[23] I agree with both the outcome and Dobson JA’s reasons.

Orders of the Court:

1. The appeal is allowed. The proceeding is reinstated.
   
2. The following conditions are to apply:
   
   1. The second appellant is to pay the respondents a sum of FD$5,000 for wasted costs on the adjournment by 29 August 2025. Reinstatement of the proceedings is conditional on that occurring.
      
   2. The second appellant is to pursue the application for a court order to reinstate the company as promptly as reasonably possible. If the respondents, or anyone on their behalf, seek to participate in that court application, then they are also to do so as promptly as is reasonably possible.
      
   100. The second appellant (or the second appellant and the re-registered company depending on the outcome of the court application) will have 30 days from delivery of the ruling on the application for reregistration of the company to replead the claims in the statement of claim.
        
   4. The respondents will have 30 days from service on them of an amended statement of claim to file a statement of defence to it, and at their option, to file an amended statement of counterclaim.
      
   5. In the event that an amended statement of counterclaim is filed, then the appellant (including the company if re-registered) will have 21 days from the date of its service on them, to file a statement of defence to it.
      
   6. Both parties are to bear their own costs on the present appeal.

Hon. Mr. Justice Chandana Prematilaka
Resident Justice of Court of Appeal

Hon. Mr. Justice Robert Dobson
Justice of Appeal

Hon. Mr. Justice Paul Heath
Justice of Appeal

Solicitors:

Neel Shivam Lawyers for the Appellant

A K Singh Law for the Respondent

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No.: HBC 268 of 2008

BETWEEN: INTERIOZ & EXTERIOZ ENGINEERING AND CIVIL WORKS LIMITED

1^ST PLAINTIFF

KALPESH KUMAR PATEL

2^ND PLAINTIFF

AND: ABDUL ALEEM

1^ST DEFENDANT

ABDUL SHAHEEM

2^ND DEFENDANT

COPY OF COURT TRANSCRIPT

BEFORE THE HON. JUSTICE BRITO-MUTUNAYAGAM

THURSDAY 16^TH FEBRUARY 2023

Clerk: Calling Civil Action No. HBC 268 of 2008 between Interioz & Exterioz Engineering & Civil Works Limited and Abdul Aleem and Another.

Ms. Devan: May it please this honourable court, my Lord, I appear for the Plaintiffs in this matter. Counsel’s name is Devan initial S.

Mr. Singh: Please, my Lord, counsel’s name is Singh initial A, I appear with Ms. Prasad initial V for the Defendants.

Ms. Devan: My Lord, this matter was set down for trial before your Lordship this morning. Regrettably we are not able to proceed with the trial this morning, my client is having some medical issues. We have written to your Lordship yesterday afternoon.

Judge: Very timely, thank you.

Ms. Devan: Unfortunately, my Lord, personally I was not aware of this situation until Tuesday afternoon. And, my Lord, there is a further medical report that has been provided by Dr. Maharaj yesterday afternoon in furtherance to what we have provided yesterday afternoon, my Lord. A copy has been also disclosed to my learned friend. The difficulty is, my Lord, the second Plaintiff who is the material key witness for the Plaintiff’s case is currently suffering from bowel and colon obstruction, your Lordship would have seen the surgeon’s notes, the discharge notes which indicates that he had colonoscopy.

Judge: But the medical certificate doesn’t say all that.

Ms. Devan: The medical certificate says that the reports are enclosed, my Lord. I have the original medical certificate.

Judge: Do you have any other witness?

Ms. Devan: My Lord, we have subpoenaed Bank Baroda. Bank of Baroda’s evidence would have been only in relation to the.

Judge: No, doesn’t matter, can you answer my question, please, do you have any other witness?

Ms. Devan: Not here, my Lord.

Judge: Why you should be ready?

Ms. Devan: My Lord, in terms of the Plaintiff’s case the bulk of the evidence would have been given by the 2^nd Plaintiff.

Judge: No, but anyway he’s another witness, another witness they could be called. No, but that’s for me to decide. Why isn’t he here if he is another witness, should be here.

Ms. Devan: Who, my Lord.

Judge: You said Bank of Baroda.

Ms. Devan: Yes, they were subpoenaed, we informed them of the difficulty that we, in the context of the Plaintiff’s case, my Lord, I could not put Bank of Baroda on the stand because their evidence only deals with a fraction of the evidence that would have been led by the Plaintiffs. It’s only to do with the overdraft facility so it would have been proper that we would put the Plaintiff on the stand to give a history of the dealings between the Plaintiffs how the 1^st Plaintiff company was incorporated.

Judge: So you have no other witness?

Ms. Devan: No other witness, my Lord.

Judge: So where do the medical certificate say about all this what you are saying?

Ms. Devan: There is no requirement, my Lord, the medical certificate which is a Form 62.

Judge: Just say 7 days very easy. I must know why did he wait for the colonoscopy to do on the 13^th when this case was fixed for trial.

Ms. Devan: He was discharged on the 13^th, my Lord.

Judge: So why did he wait till the 13^th, all that should be there.

Ms. Devan: My Lord, I have just submitted a copy of Dr. Rajesh Maharaj’s medical report if your Lordship can just go through that. What Dr. Rajesh Maharaj has confirmed that he has been suffering this elements, he had initially consulted Dr. Rajesh Maharaj, this medical specialized test can only be conducted at Oceania Hospital or the CWM, he was then referred to Oceania Hospital for the specialized test to be conducted which was recently conducted. The surgeon’s report and the discharge note is in front of you, my Lord. Now Dr. Maharaj does confirm that he’s treatment is ongoing depending on his diagnosis and prognosis and I have indication from the Plaintiff himself because I spoke to him yesterday morning that he is likely to have surgical intervention. That may take place in 2, 3 months, the surgical note also indicates a biopsy has been taken. So we don’t know what is the condition?

Judge: But this case has to go on, we can’t wait for him.

Ms. Devan: No, we can’t, my Lord, and it would not be reasonable for your Lordship to expect my client to sit in the trial for 2 days.

Judge: But that’s late for me, what is reasonable for me is left for me to decide.

Ms. Devan: Yes, my Lord, but he can’t sit.

Judge: I can see all that. What else have you to say, please?

Ms. Devan: The medical report says that he cannot sit or stand in the courtroom for too long period because he has discomfort and pain because of his abdominal issues which I hope your Lordship understands if you have bowel obstruction or colon obstruction it does cause a lot of pain and discomfort. So that is the situation of the Plaintiff. And we are humbly seeking, I do acknowledge that your Lordship really wanted to dispose of this matter, it is a very old matter, I personally wished closure in this matter because your Lordship would be aware I have personally being involved in this matter for the last how many years.

Judge: Decades.

Ms. Devan: Yes, my Lord. So having said that, my Lord, this is a situation which is out of our control, what I would be seeking, my Lord, if you can perhaps vacate the trial date subject to what my learned friend has to say.

Judge: And subject to when his medical intervention and all the rest of it, so we complete it 10 years later.

Ms. Devan: Well, my Lord, we don’t want to do that.

Judge: Anything more to say, I can hear Mr. Singh.

Ms. Devan: I just wish to indicate your Lordship, pending on his diagnosis if he needs surgical intervention to correct whatever his having inside his intestine, he may need to go for a surgical intervention it may not happen here locally, he may need to travel. So what we were suggesting, my Lord, if your Lordship is happy to put this down for mention within that date we will provide a updated medical report for your Lordship to indicate what he’s situation is and he’s fine to give evidence, my Lord, whether in court or by video evidence we will do whatever we have to do to make sure that trial happens but just to gage, we don’t want to have a trial date and come back and make an application because he has to go for surgery and then we vacate or he is gone for surgery pending on what his situation. It could be more serious then what it looks like right now to your Lordship.

Judge: So before the 13^th he was perfectly ok?

Ms. Devan: My Lord, unfortunately I myself I was not aware of his situation until Tuesday afternoon. He may have had some issues, it may have aggravated in the last two weeks when I last met him.

Judge: So he knew this matter was specially fixed he didn’t bother?

Ms. Devan: No, my Lord, your Lordship would know from the record we have been trying to do every, we have taken every single step to dispose of this matter. It is the Defendants who have been dilatory they have been changing solicitors, they have not been complying, they are the ones who let default judgment been entered. I mean your Lordship is perfectly aware the history of the matter. We’ve done everything, my Lord, to the extent when your Lordship had indicated that we’d rather go to trial we said yes, we’ll go to trial.

Judge: You have to go to trial what else.

Ms. Devan: Of course, my Lord, and we want to dispose of this matter but this is something that is now beyond our control, what can we do, my Lord. I know your Lordship is genuinely disappointed so we are but it is given and my learned friend would confirm that they are so many documents involved in this matter it would require him to go through all these evidence. So that’s my application this morning. Thank you.

Mr. Singh: My Lord, with respect to my learned friend, I think it’s not fair to make allegation that the Defendant had changed so many lawyers and they are not ready. My Lord, we took your direction on that day when the matter was called that if the matter will proceed for 2 days hearing and I had to cut my trip from overseas short to come and do this trial as I was also undergoing some medical treatment. My Lord, I have some doubt about this medical report, however, I will leave to your Lordship to decide on that. I do not give a notice to my learned friend that we might need to cross-examine Dr. Maharaj, because if you look at the medical report from Oceania, doesn’t say when he was admitted and when he was discharged. Now this matter was fixed sometime in January for the trial.

Judge: In December, I think.

Mr. Singh: I think December somewhere and then what happened, my Lord, when I returned there we had to compile all the documents, discovery, everything, my learned friend had given me a big file of documents it’s over, I think maybe about over more than 100 to 200 papers and then we had to give our documents, all those sitting on my table here. And we had to prepare the bundle everything, get ready, serve it to, prepare 3 copies each for the court. Now we are fully prepared, in the afternoon yesterday my learned friend reached me and said we can’t proceed because her client is on sick leave. And then when I look at the medical report, I asked for a better copy because the one given to me is not very easy to read. And we look at the gastric and other things which happened, if you look at the report now that’s why I want Dr. Maharaj to be here. But the issue which your Lordship is saying what the Plaintiff was doing before that and not only that, my Lord, I know my learned friend will have some issue. We subpoenaed the 2^nd Plaintiff to produce certain documents.

Judge: When did you subpoena?

Mr. Singh: About 10, 12 days ago, more than that.

Judge: Give me the exact day, please? Basically you are objecting to the adjournment?

Mr. Singh: Yes, my Lord, unless my learned friend gives a cost somewhere about $10,000.00, indemnity cost and we get a short adjournment for the trial because it’s a very old matter, my Lord. My client is here, our witnesses are here so we are ready. My Lord, we served on 30^th of January at 11.16 hours and he was fit when he received this document. So he was aware that the matter is there and not only that my learned friend even wrote a letter to me complaining how come I served the 2^nd Plaintiff with the subpoena. I did explain to her I had a right because we needed those documents and when we put that notice to produce and all those things, my learned friend did not respond. So the next option for me to see that the matter doesn’t adjourn is to put subpoena on him, the bank, everybody so that we can proceed. We don’t want the adjournment because this is a very old matter, my Lord, and we need to dispose it. Because there is an injunction sitting on the matter and that injunction is there I believe, my Lord, I understand somewhere in 2010 or 2008 somewhere there. And the property is now in need for urgent repairs and my client needs to go on the property and have it repaired. So that is our consent but the final discretion is your Lordship whether to adjourn, I can’t consent or my learned friend, we will assist you in the adjournment provided you pay a hefty cost, my client will pay me at least $8,000.00 + Vat which amounts to over $10,000 for the preparation into this hearing. I am in your Lordship’s hand and your Lordship has the final decision. Looking at the direction that your Lordship has given previously, we are fully prepared but I did assure my learned friend that I would consent on the adjournment provided you pay us a cost and that will be a heavy cost. I can draw your attention to your Lordship, in Lautoka Justice Tuilevuka in one of the case, the latest one he awarded $7,000 cost against me for my client because we asked for 2 days adjournment and that was a 2017 matter. The latest adjournment that’s how he did it in Lautoka, although I told his Lordship Justice Tuilevuka that Suva usually give about thousand to two thousand and he said in commercial world now that is not enough. Because my client will have to pay me about 10 grand that’s $10,000 for all this things but in the end I am with your Lordship or if your Lordship refuses the adjournment, your Lordship could strike out the whole matter.

Judge: But you have a counter claim?

Mr. Singh: I have a counter claim, I can prove the counter claim. I can take the instructions of that, my Lord. If your Lordship strike out the whole matter, we will withdraw our counter claim. That is all I wish to say, my Lord.

Ms. Devan: My Lord, in respect of costs I think the request for cost is misplaced because this is not something that was envisaged by parties that the Plaintiff would fall ill. We do acknowledge that the reports have come a little bit late.

Judge: Very late.

Ms. Devan: But it cannot be, I think my learned friend is able to say that the Plaintiff is not in the situation that the reports indicate. Your Lordship would have to rely on the reports, that it is a truthful report and it indicates his medical situation at the moment. In respect of cost, my Lord, the court record would speak for itself, there have been numerous costs awarded against the Defendant not a single of then have been paid todate. So for the Defendant solicitor to now demand that $10,000 be paid for their dilatory conduct and it’s when your Lordship has put his foot down that this matter will proceed to trial then they have come around and they revisited their pleadings, decided to put in a counter claim, these things never happened in the last how many years of the matter being in the court system.

Judge: No, just because the default judgment was not aside?

Ms. Devan: Absolutely, my Lord.

Judge: So that was the reason, so it started with you the fault.

Ms. Devan: Yes, we had to issue.

Judge: So it started with you the whole problem because you filed a wrong statement of claim, that’s how the whole thing went for 10 years.

Ms. Devan: Yes, my Lord, I mean there were errors, I admit those errors.

Judge: Of course but it started with that.

Ms. Devan: Yes, but my Lord, what we are saying is that.

Judge: And then so many interlocutory applications from both sides.

Ms. Devan: Those interlocutory applications were necessitated only because of the situation we found ourselves in but what we are saying is the $10,000 cost demand made this morning is not justified, my Lord. Because both parties were ready to, I personally had been preparing for the trial as well, not any expectation that would be adjourned because I wanted to bring this matter to closure as well but I find myself in this situation where there were further discoveries made on Friday afternoon, I have not been able to get instructions on those discoveries because of the Plaintiff’s medical situation. I was hoping to meet with him on Tuesday and that is when I was alerted.

Judge: Even the discovery was filed very late, you AVLD.

Ms. Devan: Yes, my Lord.

Judge: So that shows you have not been preparing because there are rules to be observed.

Ms. Devan: We had been following up on that AVLD, my Lord and that was not released to us.

Judge: You have some excuse for everything. You know the rules?

Ms. Devan: Yes, but despite that, my Lord, we discovered all the documents that we were going to rely on, on my learned friend’s office and we have exchanged the documents with the anticipation that the trial will proceed this morning.
Judge: But there is a time limit when you do all this.
Ms. Devan: Yes, my Lord, I acknowledge that.
Judge: So which was not done. So you making excuses for everything.
Ms. Devan: My Lord, it may sound like that but these are.
Judge: It is then what is the rule am I making up a rule. What is the rule when you filed AVLD?
Ms. Devan: My Lord, these are the issues.
Judge: What is the rule, can you refer to the rule?
Ms. Devan: It’s to be filed within 14 days.

Judge: So you didn’t file it and now you putting the blame on me, you are turning it round.

Ms. Devan: No, I am not blaming your Lordship, my Lord.

Judge: Of course you saying then why did you file it late because you are just not prepared.

Ms. Devan: No, it’s not that, my Lord, we were ready to proceed there are numerous documents that we have to deal that.

Judge: Does the High Court Rule say when there are numerous documents, please stop making childish excuses. It is like in the Montesorri the lights are not on there is a rule you follow it.

Ms. Devan: My Lord, your Lordship would acknowledge that we had closed pleadings only in December where both parties had filed their respective amendments.
Judge: So you had the whole of January and I made it quite clear I am going on with the trial.
Ms. Devan: Yes.
Judge: Ok carry on with your excuses.

Ms. Devan: My Lord, I do not wish to make any further submissions. In so far as striking the matter out again I would like to reiterate that this is a company property that the dispute is about, they have an injunctive orders given by this honourable court way earlier in the inception of the proceedings.
Judge: The injunction against whom?

Ms. Devan: Injunction against the Defendants because the whole dispute relates to a fraudulent transfer carried out by the 1^st Defendant which is a transfer of the company property to his name. And those injunctive orders were issued for the preservation of the property until the court had determined whether there was fraud involved in the transfer. So what we are saying is that injunctive should continue and given that there is a genuine reason for an adjournment, my Lord, we are asking that the matter not be struck out instead we are happy to take some if it means we need to provide your Lordship with a better medical report, we are happy to do that. Thank you, my Lord.

Mr. Singh: My Lord, I have a duty to inform you, my client just informs me that they have seen the 2^nd Plaintiff yesterday at about 4.45 at his service station in Mead Road and I have the witness too here present this morning to confirm that they had seen him. Now I don’t want to bring those issues, my Lord.

Judge: Those are from the bar table, you have not filed an affidavit or anything.
Mr. Singh: I haven’t because they have just informed me this morning.
Judge: No point in telling me.

Mr. Singh: The other thing, my Lord, I think my learned friend had said about something which was fraud, no doubt that was in the affidavit that my client was charged by the police and then the charges were withdrawn by DPP and they have been acquitted.
Judge: So what has that got to do with all this?

Mr. Singh: It’s nothing that’s why I don’t understand where the Plaintiff is coming, even, my Lord, with greatest respect to my learned friend, the main document that is subject to the proceedings hasn’t been disclosed. The bank statement which should say that the money came to the company’s account, from Bank of Baroda hasn’t been disclosed. So where is the evidence, that’s why I am saying, that’s why I am asking, my Lord, we will be wasting more time, I am happy to give but the cost but then we will be still coming to the same thing.

Ms. Devan: My Lord, if I may on the bank statement I had already indicated to my learned friend that those records will be produced by the bank because those records are not in our possession. He’s already filed notice to produce so that will be produced at the trial. I have already indicated to my learned friend and the bank has been subpoenaed.
Judge: But the bank is not here?
Ms. Devan: The bank is not here, my Lord.
Judge: So you didn’t bother to find out whether they will be here or not?
Ms. Devan: No, I can confirm to your Lordship that those records are there.

Judge: No, why are they not here, you didn’t bother to see whether they should be here or not.

Ms. Devan: I can ask them to come down, my Lord, if your Lordship wants to.
Judge: No, they should be here.
Ms. Devan: I can produce them.
Judge: No, they should be here. I don’t have to tell them the trial was fixed for 9.30.
Ms. Devan: Yes, my Lord.
Judge: So?

Ms. Devan: I had indicated because the person subpoenaed is the Branch Manager, my Lord.
Judge: No, you should have followed it up.

Ms. Devan: I have spoken with the Branch Manager yesterday she was ready.

Judge: I can’t take those things from the bar table like Mr. Singh is saying he saw, by tomorrow he’ll say he saw his grandmother somewhere else. No, they should have been here. I don’t want hear things from the bar table.

Ms. Devan: Very well, my Lord.

Judge: Like I told Mr. Singh I don’t want hear they say your Plaintiff, next day come and say saw his grandmother somewhere.
Mr. Singh: My apologies on that, my Lord.

Judge: Application for adjournment disallowed, no other witness for the matter is struck out. Plaintiff to pay Defendant cost of $5000 and wasted cost of $3,500.

Clerk: Court rise.

*******************

IN THE HIGH COURT OF FIJI AT SUVA

Civil Action No.: HBC 268 of 2008

BETWEEN: INTERIOZ &EXTERIOZ ENGINEERING & CIVIL WORKS LIMITED

1^ST PLAINTIFF

KALPESH KUMAR PATEL

2^ND PLAINTIFF

AND: ABDUL ALEEM

1^ST DEFENDANT

AND: ABDUL SHAHEEM

2^ND DEFENDANT

COPY OF COURT TRANSCRIPT

Checked and certified to be the original transcript.

...............................
Torika Tuqiri
Senior Secretary
Suva High Court Civil

Date : ...........................

I certify that this is a true copy of the original.

..........................
Senior Court Officer
High Court Civil, Suva.

Date: ...........................