IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 11 of 2010

BETWEEN:

PRAKASH SINGH
 of Veisari, 7½ Miles, Suva
Plaintiff

AND:

KATTAN HOLDINGS LIMITED
 of Lot 9 Namena Road, Nabua, GPO Box 1143, Suva
Defendant

Appearance : Mr Singh P., the Plaintiff appeared in Person
Mr Shah S., Counsel of Sheik H. Shah Esq for the Defendant

Date of Judgment : 4 June 2015

JUDGMENT

[1]	The Plaintiff had filed Writ of Summons on 14 January 2010 against the Defendant KATTAN HOLDINGS LIMITED for damages and losses caused by the Defendant in the sum of $2.5m and costs, alleging that the Defendant breached the terms of the Sales and Purchase Agreement and claimed damages of $2.5million.

[2]	BACKGROUND

The Plaintiff and the Defendant entered into two sales and purchase agreements over two properties CT 6491 and CT 35726 on 3rd October 2008. Upon execution of the agreements the defendant through his solicitors paid the Plaintiff a sum of $18,000.00 (1%) of the sale price, which was not intended for the Plaintiff claimed by the Defendant.

[3]	Subsequent to the execution of the agreements the Defendant identified a mistake in the agreement and through his solicitor sought to remedy it. The Plaintiff plainly refused to rectify the mistake.

[4]	Instead of rectifying the mistake in the agreement, the Plaintiff through its solicitor wrote to the Defendant terminating the Sales and Purchase Agreement.

[5]	Having terminated the agreement, the Plaintiff wrote to the Defendant demanding the defendant to pay $130,000.00 to one Deo Raj, the Plaintiff's property manager.

[6]	Whilst the process with the Plaintiff was continuing with the Defendant, the Plaintiff also entered into a further agreement with another Real Estate agent to sell the said properties at a price of $8m.

[7]	The Plaintiff did not take any steps to rectify the Sale and Purchase Agreement.

[8]	CONSIDERATION OF THE EVIDENCE

8.1	The Plaintiff gave evidence in this matter and stated that his claim was not as per pleading but he has a cause of action which is the breach of contract by the Defendant who had done fraudulent transaction with the Plaintiff which resulted damages and losses.

8.2	The Plaintiff stated that his first meeting with real estate agent namely Avinesh Pillay of the Defendant Company in the year 2008 to discuss the sale of his two properties to the Defendant's client Mr Jim Ah Koy.

8.3	The Director of Kattans Holdings Limited, Mr Pillay met the Plaintiff at Samad Laws Office saying that the Defendant's client was interested in buying the Plaintiff's property for $1.8million. The Director of Kattans Holdings Ltd arranged meeting at Mr Ritesh Naidu's Office for the preparation of Sale and Purchase Agreement for the Plaintiff's properties on 1st of October 2008.

8.4	A meeting was held at Bad Dog's Cafe where Mr Naidu of Naidu Law, Mr Suresh Chandra of M C Lawyers, Mr Samad of Samad Law, Anand Prasad, Mr Avinesh Pillay, Mr Deo Raj and the Plaintiff were present. Thereafter the Sale and Purchase Agreement was executed on 23 October 2008 (P5).

8.5	Then the Plaintiff noticed that in the Sales and Purchase Agreement marked P3 for CT 35726 that on the date of settlement the money should have been paid to Anand Prasad and not to the Plaintiff. Then the Plaintiff wrote to the Defendant to terminate the agreement by the letter dated 7 April 2009 (P6).

8.6	Mr Naidu solicitor for the Defendant wrote to Mr Samad solicitor for a date of settlement.

8.7	Thereafter, the Plaintiff instructed Samad Law to send demand Notice to Kattans Holdings Limited demanding the payment of $1million by the letter dated 26th of October 2009 (P7). The Plaintiff in his evidence stated that the variation agreement to rectify the Sale and Purchase Agreement because the property was undervalued. Considering the evidence given by the Plaintiff it is abundantly clear that the Sale and Purchase Agreement was rescinded by the Plaintiff by his letter dated 7 April 2009 but thereafter the conduct of the Plaintiff was that he wanted to continue with the agreement by making demands which were not covered in the Sale and Purchase Agreements. I further conclude that there was a confidential letter that the Plaintiff cannot disclose about Sale and Purchase Agreement to anyone and that he had to pay $50,000.00 to Anand Prasad for the sale of the property (Tag 6 undated letter marked P14) (The important factor is that the Plaintiff agreed for this in the agreement, so now he is estopped from denying). In such circumstance Anand Prasad would have been a party to this action.

8.8	As to counter claim under the terms of settlement Clause 7 terms of settlement of motor vehicle was given to the Plaintiff by Mr Anand Prasad which Defendant claims to be his. He agrees 1% deposit of $1.8million was paid to the Plaintiff's counsel trust account on signing of the agreement. The Plaintiff denied authorizing cost of surveyor fees and rezoning of land.

8.9	In the cross examination, the Plaintiff stated he cannot recall the date of the agreements and admits that he was a businessman and also a consultant. The Plaintiff also stated that he is a dairy farmer and a lay person. He contradicted himself in the evidence.

8.10	The Plaintiff further agreed that he has not paid the Defendant the cost of $500 ordered by this Honorable Court. The Plaintiff admitted that he met all parties at the beginning of October 2006 with regards to the proposed sale of his properties. In 2007, the Plaintiff had a filed an action against Anand Prasad who had transferred to himself CT6491 through MC Lawyers and the Plaintiff in 2007 approached the director of the defendant company to discuss what can be done to get his money from Anand Prasad. The Plaintiff admitted that he engaged Samad Law and used to be accompanied with one Deo Raj to discuss some matters.

8.11	The Plaintiff stated that he was selling his properties to Jim Ah Koy but he also agreed that his solicitor wrote to the Defendant demanding money to be paid to him even after terminating the agreement. The Plaintiff stated that referring to letter of 21 April 2005, that there was an error in the agreement. The Plaintiff admitted the payment of $18,000.00 made by the Defendant was received by him prior to signing of the agreements. This shows the Plaintiff acted malafide by receiving $18,000.00 part of which should have gone to Anand Prasad.

[9]	In the cross examination, the Plaintiff further admitted:

(a)	The payment which was to be received by Anand Prasad was received by him.

(b)	The Plaintiff admitted that after the receipt of $18,000.00 the error in the agreement was identified by him not the Defendant.

(c)	The $18,000.00 paid by the Defendant was to Samad Law Trust Account and he received it and by accepting he accepted the agreement.

(d)	P5 (page 27 para 2ii) was put to the Plaintiff and he admitted that $18,000.00 should be released to the interested party Anand Prasad but he received the entire $18,000.00. He admitted he terminated the agreement and the error in the agreement was detected by him (P8).

(e)	I am reproducing the contents of the letter which states:

"Please be advised that our client is now terminating the agreements dated 3rd October 2008 between Anand Prasad Kattans Holdings and Prakash Singh in regards to CT No. 35726 and the agreement dated 3rd of October 2008 between Anand Prasad Kattans Holdings Limited and Prakash Singh in regards to CT No. 6491. As per the agreement the settlement should have been done upon 30 days of the issuance of the compiled Plan. The compiled plan was handed to Naidu Law office on the 6th March, 2009.

Furthermore, your letter dated 13th April 2009 gave us the date of 31st July 2009. This is unacceptable to our client.

Attached, please find enclosed authorities to terminate the said contracts".

[10]	If the Plaintiff had acted bona fide, he would have given the Defendant to extend the date of settlement and he was entitled for the interest. The witness was shown D6 letter dated 17/11/2008 which was addressed to Naidu Law which was written subsequent P8. The Plaintiff admitted the letter was written by him. Several other letters too were shown to the witness and he admitted he never terminated the agreement.

[11]	The Plaintiff alleged that agreement was a fraud and it was found after November 2009.

[12]	The Plaintiff stated he was not aware of the letter dated 05/06/2009 (D13) written by Naidu Law addressed to Samad Law who were the Solicitors for the Plaintiff. By this letter it was informed about the errors made in the Sale and Purchase Agreement signed on 3 October 2008 and original copies of the variation agreement was sent to Samad Law and it was confirm $18,000.00 being paid to return the executed variation agreement within 21 days. It was further informed to the Plaintiff that the Defendant do not accept the termination of the agreement dated 3 October 2008 and if the variation agreement is not executed the proceedings will be instituted to seeking special performance of the agreements.

[13]	The Plaintiff stated he didn't receive D13 and his solicitors did not inform him, later he admitted he was aware of the letter but he ignored, since he did not want to sign the letter. I doubt the credibility of the witness to evade the questions. In this instance too he first lied and then admitted he was aware. He in fact admitted that he saw the variation agreement but he did not go through.

[14]	The Plaintiff stated that he wanted higher price for the property and admitted he signed an agreement with Pacific Properties on 2 December 2008. It was established that the Plaintiff signed another agreement whilst the agreements dated 3 October 2008 D7 were in force. Considering all the evidence, I conclude, the Sale and Purchase Agreement was in force at the time of signing the agreement with the Pacific Properties. He did not inform the parties about the new agreement, and continued to demand the monies.

[15]	The Plaintiff's evidence is overall contradicting himself. He was unable to prove any fraud on the agreements I conclude.

[16]	DEFENDANT'S EVIDENCE

16.1	Avinesh Pillai, Director and General Manager of the Defendant Company gave evidence and stated that:

1.	They entered into Sale and Purchase Agreement. One vendor was Anand Prasad and other vendor was Prakash Singh (Plaintiff). He tendered both the agreements marked as Tag 6 of the Defendant's Bundle of Documents and the Plaintiff tendered the agreements marked as P2. Anand Prasad was the vendor for CT 35726. Since there was dealing with Anand Prasad and the Plaintiff, the property was transferred to Anand Prasad. The other agreement on the CT6491 vendor was the Plaintiff.

2.	The witness stated that after the agreements were signed $18,000.00 was paid to Samad Law and the valuation was to be done. Prakash Singh did not have the money to pay the valuer (D1 tendered quotation by Pacific Valuation dated 14 October 2008), (D2 was the quotation for valuation by Rolle & Associates dated 16 October). Valuation charges were paid by the Defendant (D2 and D4) through Naidu Law. I am satisfied valuation charges $3,800.00 was paid by the Defendant.

3.	The Plaintiff admitted that he had requested Naidu Law to pay $130,000.00 to one Deo Raj which was not in the Sale and Purchase Agreement in Settlement of Case No. 546A of 2007. Valuation reports were received by Naidu Law and the properties are valued by Rolle & Associates:

•	CT 6491	-	$940,000.00
•	CT 35726	-	$540,000.00

and by Pacific Valuations Limited marked as D8:

•	CT 6491	-	$615,000.00
•	CT 35726	-	$480,000.00.

The Plaintiff thereafter without the knowledge of the Defendant listed the property with Pacific Realtors Limited by signing an agreement on 2 December 2009.

4.	D14 was tendered by the witness, this is a letter written by Samad Law as instructed by the Plaintiff demanding $1.8million and the withdrawal of the caveat.

5.	The witness further stated that after receiving the valuation, the Plaintiff was insisting on 1.8million. The Defendant found typographical error in the Clause 2 which stated that payment should be made to interested party's solicitor which should have been read as Vendor's solicitor which resulted in the Plaintiff receiving the $18,000.00 from Samad Law. The variation was drafted after the payment and the Plaintiff refused to sign.

6.	The witness further stated there was no default on the part of the Defendant to claim damages by the Plaintiff by the letter dated 7 April 2009 and terminated the Agreements (D10).

7.	After receiving D10, Naidu Law wrote to Samad Law, the Plaintiff's solicitor on 14 April 2009 and I reproduce the letter which is vital to make a determination in this matter:

"(1)	We refer to our previous correspondence in this matter and to our Ritesh Naidu/Irshad Samad telephone conversation today.

(2)	Our client advises us that settlement will be done on 31 July 2009. This is because our client will have to get the approval from the Reserve Bank of Fiji to transfer the money from Australia which will take about 6 weeks and the stamping of documents will itself take about 2 weeks or so.

(3)	We are instructed to advice you that our office will be attending to the stamping of the documents.

(4)	Our client requires the properties to be vacated and vegetation example dalo plants to be removed from the property. Our client will carry out an inspection of the property on 30 July 2009, a day before settlement. The settlement figure will be FJD1,782,000.00.

(5)	Before we attend to settlement, out client will require from Prakash Singh and Deo Raj to withdraw all cases pending in court against our client and/or its Solicitors and that Prakash Singh and Deo Raj will not claim any money or damages from the Purchasers or from its Directors which they have done recently.

(6)	If Prakash Singh claims interests, interest can only calculated from the day the properties are vacated.

(7)	In the meantime, please forward us the signed transfer for CT 35726 and the signed removal of caveat for CT 6491 placed by your client".

8.	This letter shows the Defendant was in fact making arrangements for the purchase on 14 April 2009. The witness stated various agreements were sent by the Defendant's solicitor to the Plaintiff's solicitor under cover of letter dated 05/06/2009. The Defendant had specifically stated in the said letter that if the variation agreements should be executed and returned before 24 March 2009 if not the Defendant will issue proceedings for specific performance (D13) and the witness stated in October 2008 a vehicle was transferred to the Plaintiff.

[17]	DETERMINATION

Considering the evidence by the Plaintiff and Avinesh Pillay and the documents tendered as Exhibits P1 to P15 and D1 – D15 in addition to the conclusions made herein before, I conclude:

(1)	The Plaintiff is in substantive breach of the Sale and Purchase Agreement-

(a)	by not signing the variation of the agreement to amend the agreements dated 3 October 2008, and the mistake made in the agreement was taken for his advantage. As cited by the Defendant's counsel Joscelyne vs. Niscen (1970) 2QB 86, all evidence in this case it was a fact that the Plaintiff deliberately acted defeating the common intention of the parties.

(b)	the Plaintiff did not establish any fraudulent activity on the part of the Defendant;

(c)	the Plaintiff's evidence was not credible and his conduct in the whole proceedings of this transaction is dubious. In the agreement where Anand Prasad was the vendor, the Plaintiff had taken his just dues;

(d)	whilst the agreements were in force, the Plaintiff entered into another agreement with another property developer (I have concluded the Plaintiff's termination of the agreement did not have any effect considering subsequent correspondence and conduct of the Plaintiff).

(e)	Anand Prasad should have been made a party to this action since he is the vendor of CT 35726 and there is no material to establish the Plaintiff had any right to this portion of the land.

Similarly, the Defendant was also in breach of the terms and its counter claim is denied. However, I find placing of the caveat to safeguard their interest is justified.

Accordingly:

(1)	The Plaintiff's claim is dismissed.

(2)	The Defendant's counter claim is dismissed.

(3)	No order as to costs.

Delivered at Suva this 4th Day of June 2015.

………………………….
C. KOTIGALAGE
JUDGE