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Chandra v Kumari [2011] FJHC 90; HBC151.2009 (23 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 151 of 2009

BETWEEN:

PRABASH CHANDRA father's name Jag Prasad of Votualevu, Nadi, Businessman,
Plaintiff

AND:

KRISHNA KUMARI father's name Hari Prasad of Namaka Lane, Namaka, Nadi and SUBASH CHAND father's name Deo Narayan as the Joint Administrators of the Estate of Deo Narayan.
Defendant

Before: Master Anare Tuilevuka
Counsel: M.K. Sahu Khan & Co for the Plaintiff
: Rams Law for the Defendant

Date of Ruling: 23rd February 2011.

RULING

[1]. By way of background, at the heart of this matter, is a sale and purchase agreement of a certain piece of land in Namaka in Nadi. This piece of land was owned by one Deo Narayan (now deceased). The plaintiff alleges that in August 2006, he entered into a sale and purchase agreement with Narayan. The agreement was duly executed by both parties. Apparently, shortly before or after the purported execution of the agreement, the plaintiff moved into the premises. I get the impression that he has, one way or another, been making some profit out of the premises.

[2]. What the plaintiff seeks inter alia in his statement of claim is an order for specific performance of the agreement. I am not concerned with that now. What is before me is the application of the defendants for summary judgment on their counter-claim. The defendants are the administrators of the estate of the said Deo Narayan. They deny that Narayan ever entered into any sale and purchase agreement with the plaintiff. They say that the signature on the agreement which is purported to be that of Narayan's is forged. That act of forgery was committed either by or with the knowledge of the plaintiff.

[3]. The defendant's counter-claim is for vacant possession of the premises by the plaintiff. They also seek a detailed account of all the profit received by the plaintiff on the property and seek payment of mesne profit.

[4]. The summary judgment procedure under Order 14 is available for the plaintiff who wants to obtain a quick judgment and avoid delay and the expense of a full trial. It is only available in cases where there is no defence to a claim, or where any defence raised will merely have the effect of delaying judgement. The task of the court is to determine whether there ought to be a trial (see the Fiji Court of Appeal in Carpenters Fiji Ltd –v- Joes Farm Produce Ltd Civil Appeal Number ABU 0019/2006 at pages 9 and 10 of the judgment).

[5]. Without further ado, there are indeed some triable issues in this case – principal amongst which is the issue of whether or not a sale and purchase agreement was indeed signed between the plaintiff and the late Deo Narayan and whether or not a deposit of $35,000 was paid pursuant to that agreement. Whether or not the remedy of specific performance is available to the plaintiff or whether or not the defendant is entitled to vacant possession and mesne profit of/over the property in question will depend on the answer to the first.

[6]. I strike out the defendant's application for summary judgement on his counter-claim. Costs follow the event which I summarily assess at $400 (four hundred dollars) in favour of the plaintiff to be paid in 14 days.

[7]. This case is adjourned to Wednesday 09th March 2011 at 8.30 a.m. for directions to complete all outstanding pre-trial processes.

Anare Tuilevuka
Master

At Lautoka
23rd February 2011.