IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0064 OF 2004

Between:

CREDIT CORPORATION (FIJI) LIMITED
Plaintiff

and

MOHAMMED FEROZ f/n Mohammed Tahir
Trading as TIMBERLANDS (FIJI)
Defendant

Mr. N. Shivam for the Plaintiff 
Mr. M. Raza for the Defendant

DECISION

This is the plaintiff’s application by Motion pursuant to Order 29 of the High Court Rules 1988 for an order for the ‘immediate return of one Kato 450 Excavator (serial number HD 4508E) to it by the defendant from wherever it may be with police assistance’.

Two affidavits have been filed in support. An affidavit in Reply has been filed by the defendant. An affidavit in Reply thereto was filed by Plaintiff on 27.4.04. 

An interim order was made ordering the defendant to ‘refrain from removing any part of the Kato 450 Excavator (Serial Number HD 4508E) until further order of this Court’.

Background

The background facts are follows (as stated in the written submissions of the plaintiff):

The Plaintiff and the Defendant entered into an agreement whereby the Plaintiff advanced a sum of $40,000.00 to the Defendant, a sum which was secured by a Bill of Sale dated 24th January 2003. The chattel secured by the said Bill of Sale was a Kato 450 Excavator (serial number 4508E) (“hereinafter referred to as “the Excavator).

In addition to the said Bill of Sale the Defendant took another Bill of Sale dated 24th January 2003 which was collateral to the 1st Bill of Sale. The chattel secured by this Bill of Sale was one only D4D Caterpillar Logging Winch Bulldozer (engine number 66U116) hereinafter referred to as “the Bulldozer”).

The Defendant has defaulted in making payments under the said Bills of Sale.

Upon default by the defendant of its obligations under the Bills of Sale, the Plaintiff repossessed the Bulldozer.

The Plaintiff has made several attempts to recover the Excavator pursuant to its powers under the said Bills of Sale by sending its bailiff to seize the same, however the Defendant had failed and or neglected to release it.

The Defendant has been in default of its payments to the Plaintiff from 30th June 2003.

The Plaintiff had made demand upon the Defendant to pay his arrears by way of a repossession letter dated 8th September 2003.

The arrears figure due as at 19th February 2004 (the date of filing of this action) was $6268.84.

Due to the default by the Defendant in payments under the Bills of Sale the Plaintiff is now claiming the payout sum of $35,965.06 plus interest and charges under the Bills of Sale.

Plaintiff’s contention

It is the plaintiff’s contention that it is entitled to the orders sought. It says that it has the right to exercise its powers under the Bill of Sale herein.

Defendant’s submission

The learned counsel for the defendant submits that the application is made pursuant to Order 29 which deals with interlocutory injunction, interim preservation of property and interim payments.

Counsel submits that the plaintiff has not specified under which Rule they are relying upon; Order 29 he says does not apply in this case. Therefore, the application should be dismissed with costs.

In his submission Mr. Raza submitted the defendant’s case, inter alia, as follows:

Secondly, the Plaintiff (should be defendant) do not dispute that the Kato 450 belongs to the Plaintiff Company and there is no objection for them to take it, provided, the Plaintiff Company return to the Defendants their D4D 65 J 1432 and D4D, which was unlawfully seized by the agents and servants of the Plaintiff Company.

The Plaintiff in their affidavit dated the 27th April 2004 says that the Caterpillar D4D 65 J1432 and Caterpillar D4D was secured to the Plaintiff Company pursuant to the Bill of Sale dated the 24th January 2003. However, under the said Bill of Sale the chattel secured is “one only D4D Caterpillar” bearing the Engine Number “7N3897” and Serial Number “66U166”. (See annexure “B”)

Therefore, it is submitted that due to the unlawful seizure of the Defendants chattels, his Company suffered loss and damages and accordingly the Plaintiff Company is liable for it.

Consideration of the issue

In the face of the writ herein it is not possible to grant the relief sought in the motion. There are so many disputed facts that without the trial of the action in Open Court the issues cannot be determined.

The pleadings in the writ action have reached the stage where Statement of Claim and Counterclaim has been filed. I would suggest that the parties get on with the case. After the pleadings are closed the action to take its normal course.

Order:

The plaintiff’s application is for the above reasons refused and is dismissed but the interim injunction to remain until further Order of this Court. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
18 April 2005