IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
HBC 167 OF 1993
BETWEEN:
  B P SOUTHWEST PACIFIC LTD
Plaintiff
AND:
GOPAL PILLAY
f/n Permal Sami Pillay
Defendant
AND:
SUBHAS CHAND
f/n Shiu Prasad
1st Third Party
AND:
GURSAMI
f/n Rangsami
2nd Third Party
COUNSEL: Mr S. Chandra for Plaintiff
Mr A. Tikara m for Defendantndant
Mr R. Singh for 2nd Third Party
No appearance for 1st Third Party
Hearing: 14th January 2000
Decision: 18th January 2000
DECISION
This is an application by the second Third Party, Gursami f/n Rangsami under Order 16 Rule 6 of the High Court Rules 1988, to sede
proceedings on a third pird party notice.
An application to join the first and second Third Parties, was made by the Defendant on 30th June 1999, and was allowed. The substance
of the application was that the Defendant was entitled to join the third parties to indemnify the Defendants against the Plaintiff’s
claim. The basis of the application was simple. The Plaintiff says that the Defendant to whom the Plaintiff had sold petroleum products,
had failed to pay for $20,668.27 for those products. The Defendant says that petroleum products totalling $20,668.27 in value, were
converted by the first and second third parties, the former being a former employee of the Defendant, the latter being an agent of
the Plaintiff.
This application is brought on the basis that there is no factual nexus en the third party claim and the statement of claim and that
the joinder of the third partiparties is in breach of the Limitations Act Cap. 35.
In his submission, Mr R. Sigh for the second third party argued the exact nature of the petroleum products was not particularised
in the statement of claimclaim or in the third party notice. He conceded that he had not read my decision of 23rd August 1999 when
I granted leave to join the third parties. Mr A. Tikaram for the Defendant submitted that the application raised no new ground which
had not been traversed at the application for leave.
Mr S. Chandra supported the application on the same grounds that the Plaintiff haued at leave stage.
At leave stage the affidavit of Gopal Pillay had deposet the fuel supplied by the Plaintiff had in fact been siphoned off by the second
and third hird parties, to the tune of $20,668.27. It further deposed that the third parties owed the Defendant a duty of care and
that there had been a police investigation into the alleged conspiracy. In granting leave, I found that:-
“.... the application for the issuing of third party notice is not a frivolous one, and that if the Defendant is able to prove his
allegations against Subhash Chand and Gursami at the hearing he will have a valid claim of indemnity against them.”
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Counsel for the second third party conceded that he had not read this judgment as not aware that the issues he raised had been dealt
with with in that decision.
Moreover, in the light of Section 23 of the Limitation Act Cap. 35, his submission that the joinder of the third party is statarred cannot be sustained.
I find therefore that this application raises nomatters that might justify the setting aside of leave under Order 16 Rule 6.
I dismiss this application. The second third party is to pay the Defendant’s costs of this application to be taxed if not agrespan>
Nazhat Shameem
JUDGE
At Suva
18th January 2000
Hbc0167d.93s
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