DRIB KANT LALA
s/o Lala Totaram
Defendants
Mr. R. Naidu for the Plaintiff
Ms. V. Lal for the Defendants
JUDGMENT
&-GB>
This is a contested application for summary judgment under Or.14 of the Hourt Rules.
The short Statement of Claim (without any details or particulars) claims from the defendants the sum of $40,000 `...... being the balance amount owing by the Defendants to the Plaintiff in respect of certain bills issued by the Plaintiff to the Defendants in 1997 and 1998.’ The defendan an equally brly brief Statement of Defence denies owing the amount and puts the plaintiff to strict proof.
The plaintiff company’s affidavit in support of the application described a course of business dealings betwhe parties where the overseverseas
plaintiff company sold and supplied goods to the defendants under cover of various bills (not annexed to the affidavit) and which
it claims, remains outstanding. The plaintiff also relies heavily on a signed document dated 1st December 1998 and two (2) faxes dated 15.1.99 & 22.3.99 which counsel says tannt to an acknowledgment of indebtedness by the defendants ants and an agreement to settle outstanding bills
by way of fortnightly instalments of US$5,000.
In this latter regard the affidavit annexes no less than fifteen (15) trust account receipts dated between 27.4.99 and 18.4.2000 evidencing a total payment of $75,000 made by the defendants to the plaintiff company’s local solicitors in `payment of debt due to Chhiba (Hong Kong) Limited’.
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Finally the affidavit deposes without any annexed accounts or detailed explanation :
`THAT after taking account the payments made by the defendants, the defendants owe the plaintiff the sum of $4of $40,000.00.’
In its answering affidavit the defendants th their solicitors depose that the plaintiff company’s claim `is not for the guaranteeantee of payment’ as per the acknowledgment letter dated 1st December 1998 but for goods supplied to Lalas Shopping Centre which is a business name registered under the first defendant’s name only and therefore the `claim against the 2nd defendant (should) be struck out with costs.’
I have received written and oral submissions from counsels which have significantly clarified the issud for which I am grateful.
It is common ground that the plaintiff company’s claim is not one of enforcing the defendant’s so-called acknowledgment of debt letter(s) but a claim for the balance sum owing on goods sold and
delivered to Lala’s Shopping Centre after taking into account the $75,000 payment.
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> It is also common ground that the acknowledgment of debt letter signed by the defendants refers by date, number and office of origin
to seven (7) outstanding bills `drawn to Lala’s Shopping Centre’ in United States and Hong Kong dollar amounts. No effort is made to convert the figures into Fiji dollar amounts which one assumes is the currency in which the present claim is made.
Similarly no attempt has been made to convert the $F75,000 paid by the defendants to the plaintiff companolicitors, into US o/b> or Hong Kong dollar equivalents so as to accurately identify the shortfall in the payments made by the defendants and/or the particular `bills’ that it is claimed remains unpaid.
Given that the primary source documents were not in Fiji dollars and, given that the defendafendant’s payments and the plaintiff’s claim is in Fiji dollars, it was incumbent on the plaintiff company to clearly establish that the sum of $40,000 Fiji dollars remained owing to the plaintiff company after the $75,000 payment had been accounted for. This it has failed to do.
I-GB>Indeed plaintiff’s counsel was unable swer in any satisfactory manner the Court’s question : `Where is there mention in anyn any of the plaintiff’s annexures of an accounting to the defendants in Fiji dollars showing the $40,000 owing or outstanding ?’
Needless to say it is inaccurate to say that the defendants do not deny the $40,000 debt. Plainly they do (< : para.1 of the Statement of Defence). Nor is it a sufficanswer fwer for the plaintirely to assert that the defendants have admitted some general indebtedness towards
the plai plaintiff company.
Whatsmore the 2nd defendant’s liability fo debt is at least arguable in light of the fact that the plhe plaintiff company’s goods were supplied to
a business namely, `LALA’s SHOPPING CENTRE’ of which the 1st defendant is the sole registered proprietor.
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> This is a case which cries out for a proper accounting in ji dollars to the defendants and, in its absencesence, this application cannot succeed and is accordingly dismissed with costs of $200.00 summarily fixed.
D.V. Fatiaki
JUDGE
At Suva,
HBC0101J.01S
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