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Kumar v Vijayantimala [2010] FJHC 26; HBA0005.2000 (4 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

APPEAL NO.HBA 0005 OF 2000
ORIGINAL MAGISTRATES
COURT MATRIMONIAL CAUSE
NO. 18 OF 1999

BETWEEN:

MUKESH KUMAR f/n Ram Kumar of Ravouvou Street, Lautoka Fiji Managing Director
APPELLANT

AND:

VIJAYANTIMALA f/n Muttu Kumar Samy of Cumpoy Place, Waiyavi, Lautoka Fiji Company Director
RESPONDENT

AND:

SANGEETA DEVI of Natokowaqa, Lautoka Fiji Accounts Clerk
CO-RESPONDENT

AND:

DAMODRAN NAIR f/n Katchputch of Auckland New Zealand, Operator
1ST PARTY-CITED

AND:

KRISHNA MURTI NAIDU of Simla, Lautoka, Salesman
2ND PARTY-CITED

Before: Master Anare Tuilevuka

Counsel: Mishra Prakash & Associates – Applicant/Respondent

No Appearance – Respondent/Appellant

RULING

INTRODUCTION

1. In November 1999, the Lautoka Magistrates Court granted ten orders altogether on a petition for dissolution of the marriage of Vijayanti Mala ("Mala") and Mukesh Kumar ("Mukesh"). Amongst the orders granted, were an order that Kumar transfer the title of the matrimonial property at 8 Cumpoy Place (NL 21213 – on Lot 1 on SO704, Namoli sub-division, Vitogo, Ba) to Mala within 28 days; that Kumar pay cash settlement to Mala to settle the mortgage balance on the property; and that Kumar pays $100 per week in child and spousal maintenance. Kumar appealed the Magistrates Court Orders but the appeal was dismissed by the High Court in October 2003. Kumar’s subsequent appeal to the Court of Appeal was also dismissed by the Fiji Court of Appeal. Despite losing both appeals, Kumar had remained defiant even up to his death in 2009 and never complied with the Orders. He was committed to prison for several weeks in 2007 for his contemptuous non-compliance with the Court Orders.

2. What is before me now is an application by Vijayanti Mala seeking to make Charging Order Nisi absolute pursuant to Order 50 Rule 6 of the High Court Rules.

3. According to paragraph 9 of her submissions, NL 27031 was transferred to Mukesh Kumar on 27th January 2006. The land was acquired by Mukesh Kumar long after their marriage was dissolved in 1999 and so is not a matrimonial property. A latest search copy of the lease title was supplied to me this morning by Mr. Mishra.

BACKGROUND

4. On 16th November 2006, Mr. Justice Finnigan granted Charging Orders nisi over NL27031 on an ex-parte Motion filed by Mala pursuant to Order 50 Rules 1(2) and (3). Finnigan J ordered that a copy of the order and affidavits filed be served on Kumar and for Kumar to attend Court and show cause why the orders nisi should not be made absolute. The matter was then adjourned. Several adjournments later, no affidavit was filed. The matter finally landed before Ms Justice Phillips on 8th February 2008. The records will show that twelve adjournments followed between 8th February 2008 to 9th April 2009 all on Kumar’s counsels application - but still no affidavit was filed. The reason for the delay in these proceedings becomes obvious on review of other related files pending between Mala and Kumar. It appears that other affidavits and submissions and hearings were happening simultaneously before other Courts. I am to understand from file records that throughout this time, counsels were embroiled in an on-going clash in other Courts pursuant on committal proceedings, the setting aside of committal order, a bail application, garnishee proceedings against Bank of Baroda, and charging order proceedings in relation to other properties in Mukesh’s name.

5. It is noteworthy that on 20th March 2009, Kumar’s counsel is on record to have submitted before Phillips J that the process by which Mala had come was defective as there were matters of fact in dispute between the parties. The disputed facts pertain to the calculation of arrears amount. The matter was then adjourned to 09th April 2009 to allow for Kumar’s counsels to apply formally to Court on their challenge.

6. The case was again called on 11th December 2009 before Mr. Justice Inoke. The records show counsels as having consented to an adjournment "as the appellant (i.e. Kumar) is dead". The case was then adjourned to 17th December 2009 but was not called as there was no Court sitting due to cyclone Mick. It was called before me on 21st January 2010. On that day, Mr. Mishra appeared for Mala and demanded a hearing date. Doctor Sahu Khan appeared and confirmed that Kumar is deceased but that he had no instructions. Mr. Mishra pressed for a hearing date.

7. I note also that there has also been no formal application filed to challenge the form of proceedings taken by Mala

THE LAW

8. The effect of making absolute a charging order nisi was clearly stated by Ms Justice Shameem in Public Employees Union v Leweniqila [2001] FJHC 78; Hbc0393y.1999s (11 October 2001):

"The effect of the order would be to make the creditor a secured creditor who must proceed to enforce the charge to obtain the proceeds of the charge, in order to satisfy the judgment".

9. The making absolute a charging order nisi is purely a matter of discretion for the Courts. In exercising that discretion, the relevant factors to be considered as discussed by Shameem J in Public Employees Union v Leweniqila (supra) are as follows:

"In England the Charging Orders Act 1979 provides that the High Court can make a charging order with or without conditions and provides, by virtue of section 1(5) of the Act, that in deciding whether to make a charging order the Court shall consider all the circumstances of the case as in particular the personal circumstances of the debtor and any prejudice to any other creditor. Although this Act does not apply directly to Fiji, the principles generally guiding the grant of a charging order after the passing of the 1979 Act, provide useful guidelines. These principles, stated by Lord Brandon in Roberts Petroleum Ltd. -v- Bernard Kenny Ltd. [1981] EWCA Civ 10; (1982) 1 WLR 301, are as follows:

1. The question of whether a charging order nisi should be made absolute is a matter for the discretion of the Court;

2. The burden of showing cause why the order nisi should not be made absolute is on the judgment debtor (my emphasis)

3. The principles applicable to the exercise of the discretion are those relevant to the grant of a garnishee order nisi;

4. The Court should consider all the circumstances of the case including those arising after the order nisi;

5. The court should consider all the parties including the judgment creditor, the judgment debtor and other unsecured creditors.

In this case the judgment debtor has failed to show me why the order should not be made absolute. Not only does the affidavit of Verenaisi Rokovada contain the irregularities pointed to by counsel for the Plaintiff, but it fails to show me how the interests of the creditor (the Plaintiff) can be protected by the course of conduct it recommends. How does allowing her sister to buy the First Defendant’s half-share, help the creditor? Further, the property is valued at substantially less than the total amount of the judgment debt, and the creditor in any event will take limited comfort from the charging order. The affidavit fails to show how Verenaisi Rokovada now has become part-owner of the property and there is finally no suggestion that there are other unsecured creditors whose interests the court now must consider.

I find therefore that the First Defendant and his daughter have failed to show me why the charging order should not be made absolute.

The order is therefore made absolute in respect of the First Defendant’s beneficial interests in the property described as Certificate of Lease No. 236585 being Lot 86 on DP 5215 in the province of Naitasiri.

10. The burden was obviously on Kumar to show cause why orders nisi should not be made absolute. He was given more than enough time during his lifetime. The Court had gone out of its way to indulge Mr. Kumar after order nisi was granted. He did not respond. I do not suspect that whoever eventually gets to administer his estate will be any more enthusiastic than Mr. Kumar was in showing cause.

11. Seeing that the land involved is on native lease, I had asked Mr. Mishra at the outset whether the consent of the Native Lands Trust Board must be first had and obtained before any order absolute can be granted on the said property. He submitted that it is not necessary now, as the effect of the order is merely to "upgrade" Mala’s interest to one equivalent to that of a secured creditor. Prior NLTB consent would only be required before Mala can take any step to sell the land to enforce judgement on the land. But the right to take that course will only follow the granting of an order absolute now. He argues also that the making of an order nisi absolute is not a dealing in land which does not require the prior consent of the NLTB. I shall let that issue rest there for the benefit of full argument in another case.

Fiji Public Trustee Corporation Limited ("FPTCL")

12. There are obviously other parties who might stake a beneficial interest in Kumar’s estate and the property concerned. I asked Mr. Mishra if they need to be joined to avail them an opportunity to show cause why orders absolute should not be granted. I reiterate here my comment in the last line in paragraph 10 above.

13. In proceeding with this matter anyway, I was influenced by the submission by Mr. Mishra that no letters of administration or probate has been granted on Kumar’s estate. The reason, he says, is because three caveats have been lodged at the Probate Registry against a grant – one of which was lodged by Mala herself on behalf of the child of the marriage. For this reason – he has simply notified the Office of the Fiji Public Trustee Corporation Limited.

14. On 01st February 2010, the Affidavit of Service of Nitesh Madhwan was filed in Court. It deposes that he had duly served the FPTCL with a true copy of the letter dated 26th January 2010. That letter was written by Mishra Prakash & Associates to FPTCL advising that an application would be made in this Court for charging Orders to be made absolute on 29th January 2010. FPTCL’s response dated 28th January 2010 advises as follows:

"we will not take any significant step in this proceeding unless the beneficiary approaches us to administer the same. Meanwhile, we do not have any record of such instruction nor administration of the same".

15. What remains is that Mr. Kumar had not complied with lawful Court orders for some ten years at the time of his death last year.

16. What seems to loom ahead is a contest as to who is to, and how he or she is to, administer Kumar’s estate.

ORDERS

The Charging Order nisi over NL27031 is hereby ordered to be made absolute.

I further award costs to Vijayanti Mala which I summarily assess at $1,000-00 (one thousand dollars).

Anare Tuilevuka
MASTER

04th February 2010.