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Sharma v Verma [2005] FJHC 662; HBC0322.2004L (20 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0322 OF 2004L

BETWEEN:

NARDEO SHARMA
f/n Hardayal Sharma
Plaintiff

AND:

SURESH VERMA
f/n Jagit Singh
1st Defendant

AND:

EQUITY RELATIONS & LAND DEVELOPERS (FIJI) LIMITED
2nd Defendant

Counsel for the Plaintiff: Dr. M. Sahu Khan
Counsel for the Defendants: Mr. S. Maharaj

Date of Hearing/Date of Ruling: 20 May 2005

EXTEMPORE RULING

The plaintiff by Notice of Motion filed on the 20^th April 2005 seeks an order the Caveat No. 552946 lodged against Certificate of Title No. 30143 remain on the title until the final determination of this action or until further order of the court.

On the 27^th April 2005 when the matter came before the court, the caveat was extended until today. The application is opposed.

In support of the application, the plaintiff relies upon an affidavit filed on the 20^th April 2005 together with an affidavit in reply filed on the 18^th May 2005. The 1^st defendant relies upon an affidavit of Reena Roshni Lata filed on the 11^th May 2005. The 1^st defendant has filed skeleton submissions and I have had the benefit of oral submissions on behalf of the plaintiff and defendant.

The Writ of Summons in this matter filed on the 20^th October 2004 seeks various forms of relief as against the defendant but the first relief sought is that the transfer of Certificate of Title No. 29237 be declared fraudulent and null and void and invalid.

It is apparent from the evidence before the court, the plaintiff and the 1^st defendant entered into an agreement for the transfer of the subject land and that the plaintiff and the 2^nd defendant entered into an agreement and that the 1^st defendant acted for the parties. It is also apparent from the material filed that the plaintiff alleges that he was induced by fraud to enter into that agreement and accordingly seeks to set the transfer that emanated from it aside.

Submissions have been made that the application to extend is out of time, in that the caveat had in fact lapsed by virtue of the notice issued by the Registrar of Titles prior to the application being made to the court to extend the caveat. This submission is dependent upon the service of the notice upon the plaintiff.

The plaintiff deposes to having received the notice by registered post on the 7^th April 2005. The application was filed on the 20^th April 2005. There is no other evidence before the court as to any other date of service other than that deposed to by the plaintiff.

It is then necessary to consider whether or not the plaintiff in fact has a caveatable interest to enable the caveat to remain on the title. I should before leaving the issue of the lapsing of caveat make mention of Australia and New Zealand Banking Group Limited v Oline Mayor Maharaj – Civil Appeal No. 49 of 1983 where the court at page 5 said:

“And we are obliged to note that the caveat does not lapse by mere (effusion or effluction) of time; it is spent only when the registrar has removed it from the register in exercise of the discretion conferred upon him by section 110(1).”

It is clear that the Registrar had not removed the caveat from the title at the time the application for extension was made to the court.

In Lee v Waikalou Development Limited [2002] FJHC 17 HBC0294 of 1995 Scott J. said:

“A caveat is a warning operating as a notice to all the world that the registered proprietors title is subject to the equitable interest alleged in the caveat.”

In Chand v Visama Rice Mill Limited – HBC0331 of 2001 Scott J. said:

“Our own Act is similar to the provision of the New Zealand Land Transfer Act 1952. In Catchpole v Burke [1974] 1 NZLR 266 McCarthy P. explained that:

When it is explained to the court that the caveator cannot be possibly succeed in establishing his claim against the registered proprietor, it is proper to refuse to extend the caveat (Reid Jones [1908] NZGazLawRp 114; [1908] 11 G.L.R 30) where there are doubts surrounding the rights of the caveator, the proper course is to extend the caveat the conflicting claims of the different parties are determined in actions brought for that purpose.”

Section 106 of the Land Transfer Act describes the qualification of the person entitled to lodge caveat as:

“Claiming to be entitled or to be beneficially interested in any land subject to the provisions of this Act or any estate or interest therein by virtue of an unregistered agreement or other instrument or transmission or of any trust expressed or implied or otherwise howsoever.”

The pleadings before the court in this matter indicate that the plaintiff claims to be entitled to an interest in the land, in that he seeks to have the transfer of the land from him to the 2^nd defendant, set aside by virtue of the fraud alleged in the statement of claim. He does therefore in my opinion have a caveatable interest in the subject land.

Having a caveatable interest then leads to the need, as expressed in the authorities to which I have referred, to preserve that land pending a final determination of the issues between the parties and accordingly, I am of the opinion that it is appropriate that the caveat be extended in the circumstances of this matter.

The Order of the Court will be:

1. Caveat extended until the final determination of the Writ of Summons in this matter or further Order of the Court.
   

JOHN CONNORS

JUDGE

At Lautoka

20 May 2005