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Narayan v Dip [1994] FJHC 46; Hbc0007.94 (11 May 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
Civil Jurisdiction

CIVIL ACTION NO.HBC 0077 OF 1994S

BETWEEN:

DEO NARAYAN
(f/n Sukh Ram)
Plaintiff

- and -

CHANDAR DIP
(f/n Sukh Ram)

- and -

RAM RAJI
(f/n Girwad)

as Executors and Trustees
of the Estate of SUKH RAM
(f/n Udan)
Defendants

A. Rana for the Plaintiff
S. Sharma for the Defendants

DECISION

This is a mortgagors' application for an injunction restraining mortgagees from exercising their powers of sale.

There are 3 affidavits before me:

(i) Plaintiff filed 18 February 1994.

(ii) Defendants filed 8 March 1994.

(iii) Plaintiff filed 22 April 1994.

The brief facts not in issue are that the Plaintiff and the First Defendant bought about 5 acres of land in March 1982. A few days later the Plaintiff mortgaged his half share in the land to his father to secure a loan of $6,500 made by the father to the Plaintiff to enable the Plaintiff to purchase the land. The mortgage is Exhibit B to the first affidavit.

The land was use as a rice farm and the Plaintiff and his parents and one of his brothers lived and worked there. The Defendants have not worked or lived on the land.

The Plaintiff's father died in December 1991 and in January 1994 the Defendants caused a demand notice to be served on the Plaintiff requesting repayment of the $6,500 together with accrued interest. The Defendants maintain that the Plaintiff never repaid the loan to his father but the Plaintiff says that the whole sum was repaid to his father out of his share of proceeds from the sale of rice produced on the land.

The Plaintiff's principal difficulty is that there is really no reliable or conclusive evidence to support his assertion of repayment. There are no records of repayment, no receipts and of course the mortgage was never discharged.

Although when he died the Plaintiff's father Sukh Ram had money in the bank there is nothing to show that that money represented repayments by the Plaintiff to him. The Plaintiff says that he regularly repaid his father from the proceeds of his share of the sale of the rice but he also says that "the issue of the mortgage never arose" (see paragraph 14 of the first affidavit). If the issue of the mortgage never arose then it is hard to see how the rice proceeds can have been considered as repayments. Furthermore in paragraph 13 of the second affidavit the Defendants dispute the Plaintiffs account.

Mr. Rana submitted that the Court should in effect give the Plaintiff the benefit of the doubt pending the hearing of the action proper. He suggested that the Plaintiff was poorly educated and ignorant of the law. But the fact is that the Plaintiff was party to a properly drawn up mortgage executed by Munro Leys, a highly regarded firm of Solicitors in Fiji. It is inconceivable to me that the Plaintiff did not have his rights and duties fully explained to him before he signed. This was no mere informal family arrangement.

Relying on two unreported Australian decisions Mr. Rana submitted that a mortgagee could properly be restrained from exercising his powers of sale where (a) the amount claimed was obviously wrong or (b) there was a real question as to whether the mortgagee's powers were exercisable at all.

The problem, as I see it, about advancing these principles in this case is that the nature and quality of the Plaintiff's evidence is such that I am not at all persuaded that the amount now claimed is obviously wrong. And if it is not obviously wrong or alternatively obvious that all the sums claimed have been repaid then there is no other reason advanced why the mortgagees should not exercise their powers.

Mr. Rana recognised that the Courts both overseas and in Fiji have for many years been extremely reluctant to interfere with a mortgagee's powers of sale failing payment into Court of the amount claimed. Supreme and High Court decisions in Fiji include Taivesi Volau v. BNZ Lautoka 601/86; Official Receiver v. BNZ Lautoka 759/85; Deo Ratna v. NBF Suva 722/88 and Fiji Co-operative v. NBF Suva 345/90. Fiji Court of Appeal decisions include Rauzia Zaweed Mohammed v. ANZ 66/84 (and see Suva High Court 323/84).

In this case there is no suggestion that the Defendants would be unable to make good their undertaking as to damages. The Statement of Claim seeks no more relief then is being sought by this application if it is observed that there is no injuria pleaded in support of the claim for damages. To allow an almost bare assertion of repayment to restrict a mortgagee's power of sale would fundamentally affect the statutory powers given to a mortgagee by section 79 (1) of the Property Law Act Cap.130.

The application fails.

M.D. SCOTT
JUDGE

SUVA
11 May, 1994

HBC0007.94