In the High Court of Fiji 
at Suva
 Civil Jurisdiction
   Civil Action no. HBC 140 of 20 18 
Home Finance Company Limited 
Plaintiff 
v 
Evalyne Rajani Lata Kumar 
Aka Evalyne Rajni Lata aka Evelyne Kumar 
   Defendant 
	Counsel: 	 Mr Devanesh Sharma for the plaintiff	Mr 1. Fa for the defendants 
Date of hearing:     2nd October, 2018 
Date of Judgment:   19th October, 2018 
JUDGMENT 
1.	By originating summons filed on 16th May, 2018, together with affidavit in support, the 
plaintiff seeks vacant possession of the defendant's property under Or 88. The defendant filed 
affidavit in opposition on 3rdJuly, 2018. The plaintiff filed affidavit in reply on 19th July, 2018. 
Both parties have attached several documents to their respective affidavits. On 5th July, 2018, 
I fixed the matter for hearing on 2nd October 2018. 
Summons for consolidation 
2.	On 15t October,20 18. the defendant filed summons for consolidation of this action and Evelyne 
Rajani Lata Kumar aka Evalyne Rajni Lata aka Evelyne Kumar v Home Finance Company 
Limited, (Civil Action No. HBC 68 of2018) and moved that the hearing on 2nd October, 2018 
be vacated for the reasons that" some common question of law or fact arises in both the 
matter" and "the rights to relief claimed therein are in respect of or arise out of the same 
transaction or series of transactions". 
3.	The defendant, in her affidavit in support of her summons stated that she instituted action in 
Civil Action No. HBC 68 of20 18, against the plaintiff in the present case. This case and HBC 
68 of 20 18 arise out of the same transaction. 
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4.	   Mr Fa, counsel for the defendant submitted that in both proceedings, the parties are the 
same and the causes of action arise out of third party mortgage no 787288. The validity of that 
mortgage is a common question of law. The present action would be redundant, if the plaintiff 
is successful in HBC 68 of 2018. Any prejudice caused could be met by an order for costs. It 
was finally submitted that there was no time limit to filing an application for consolidation. 
5.	Mr Sharma, counsel for the plaintiff opposed the application. He submitted that the defendant 
did not pursue her application for an interim injunction in HBC 68 of 20 18. She took no steps 
to challenge the mortgage registered from 2013, until the plaintiff, as mortgagee, moved to 
exercise its powers to sell the property. She made this application a day before the hearing . 
She is represented by Fa & Company in this case, while the writ in BBC 68 of2018 was issued 
by Jackson Bale Lawyers. No consent is annexed from Jackson Bale Lawyers to make this 
application. A mortgagee is entitled to seek vacant possession under Or 88. The plaintiff will 
be prejudiced, if the hearing is vacated. 
6.  On 2nd October, 2018, I declined the summons for consolidation and made order that the case 
proceed to hearing for the following reasons. Firstly, the defendant filed this summons on the 
day before the hearing. The Supreme Court Practice, 1988, Vol 1, paragraph 4/9/5 states an 
"application must be made as soon as possible". (emphasis added) 
7.	Secondly, as Mr Sharma quite correctly pointed out the there is no consent from Jackson Bale 
Lawyers, which issued the writ in BBC 68 of 2018 to make this application. In this context, I 
would cite the Supreme Court Practice, (op.cit), paragraph 4/9/1: 
There may, however, be further circumstances which will militate 
against an order being made. Two actions cannot be consolidated where 
the plaintiff in one action is the same person as the defendant in another 
action, unless one action can be ordered to stand as a counterclaim or 
third party proceedings in another action. Moreover, as one firm of 
solicitors will usually be given the conduct of the consolidated action on 
behalf of all plaintiffs, it is generally impossible to consolidate actions 
in which different solicitors have been instructed(Lewis v. Daily 
Telegraph (No.2) [l964] 2 Q.B. 601) unless all plaintiffs agree that one 
firm of solicitors shall act on their behalf, or unless there can be a partial 
consolidation. (emphasis added) 
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8.	Thirdly, the defendant did not pursue her summons for an injunction filed in HBC 68 0[2018, 
to restrain the plaintiff from taking possession of her property by way of a mortgagee sale. That 
case is at the discovery stage. It has not been fixed for trial. Finally, a mortgagee is entitled to 
seek vacant possession under Or 88. 
Originating Summons 
9.	The hearing on the substantive matter was concluded before me on 2nd October,2018. The 
defendant was given time to file written submissions on 12th October,2018 and the plaintiff 
to file written submissions in reply on 17 October,2018. Neither party filed written 
submissions on the given dates. 
10.	The plaintiff seeks an order for the vacant possession of the defendant's property in CT No. 
29212, Lots 9 & 2 on DP No. 1888 & 5394 situated at 4 miles, Nasinu, containing 1 rood and 
16 perches with all improvements thereon,(the property) and an injunction restraining the 
defendant from interfering or removing the improvements thereon. 
11.	The affidavit in support filed on behalf of the plaintiff company states that the plaintiff 
advanced a sum of $135,000.00 to Modern Investment Services Limited,(MISL) for the 
purpose of working capital. The list of securities in the Offer Letter of 24th August, 2012, 
contains the request for a first registered mortgage over the defendant's property, which was 
to be a collateral to a deed of debenture. 
12.	The affidavit continues to state that the defendant's property was required to secure the 
"additional business loan advance 0/$135,000.00". On 18th June, 2013, the plaintiff wrote to 
MISL and sought formal execution of the security documents. Upon execution by the 
defendant, the plaintiff registered Mortgage No. 787288 over the property, which became a 
second ranking mortgage, as the plaintiff had a first registered Mortgage No. 724810 over the 
property. When the defendant's business loan account No. 5511L15.1 fell into arrears of 
$17,963.63, the plaintiff issued a demand notice on 9th December, 2007, and eviction notice to 
the defendant, exercising its rights to proceed with mortgage sale. The plaintiff states that the 
defendant and her family continue to illegally occupy the property. The plaintiff has accepted 
a tender for the sale of the property and the prospective purchaser requires vacant possession.
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The determination 
13. The defendant has not challenged the loan nor the sums of monies advanced by the plaintiff 
to MISL. It is not in dispute that the defendant executed a primary and secondary mortgage 
of her property. 
14.	The case for the defendant, as set out in her affidavit in reply to the originating summons is 
that she executed the second registered mortgage no.78788 under duress, as the plaintiff 
threatened to impose a "5 penalty on all MISL's accounts". The threat was made in order to 
obtain a second registered mortgage, although it was not part of the securities contained in the 
terms and conditions of the letter of offer of24 August, 2012. The defendant further states that 
this "amounted to duress, unconscionable conduct, undue influence and an overall reckless 
disregard for (her) rights as the owner of the property", which renders that mortgage null, 
void and unenforceable and the Notice of demand of 9 May, 2017, issued by the plaintiff 
unlawful. 
15.	The defendant alleges that the threat was made to her by the plaintiff in its letter 18th June, 
2013, The letter addressed to the directors of MISL reads as follows: 
Re:Execution of Outstanding Security Documents 
Modern Investment Services Limited was approved additional funding of 
$135,000 for working capital loan requirement on 1710812012. This was 
settled on 14/0912012 upon execution of Letter of Offer on 27/0812013 
given urgent need for funds and security documents were to be signed 
later. 
HFC(Mr.Bimal Jagrup) visited your office for execution of legal 
documents which was refused by the director pending consultation of 
solicitors. 
Please note that Letter of Offer was accepted under company's common 
seal prior to release offunds and now we are formally seeking execution 
of security documents and return within 14 days. Failure to comply with 
the security requirements will prompt HFC to apply +5 penalty on 
current pricing on group accounts. Also note that financials for 2012 FY 
is outstanding which is to be provided within 14 days ... (emphasis added) 
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16.  Schedule 2 of the letter of offer of 24 August, 2012, identifies the securities taken to secure 
the additional loan facility of $135,000 and includes a "First Registered Mortgage" over the 
property. Clause 7.3 of this letter of offer also imposes a 5 penalty, in the event of breach 
of any of its terms and conditions. 
17. Clause 7.3 titled" HFC'S DEFAULT RIGHTS" provides as follows: 
A. On Defaults as to Repayments 
If repayments are not made within this period or if you fail to perform 
or observe any other terms and conditions to this Loan Facility, then 
you will be in breach of the Loan Facility conditions in which event 
HFC has the rights set out in schedule 3. 
You may also be liable to the following penalties without any further 
notice should you fail to meet the repayments by the respective due 
dates; 
a.	Arrears Fees [Please refer to facility schedule] 
b.	Default interest rate which will be an additional 5 per annum on the 
Interest Rate then applicable to the respective accounts will apply on 
the amount in default immediately upon the account going into default 
and will continue until the full amount in default has been paid o{f. 
(underlining mine) 
18. In my judgment, the defendant's contention that the imposition of a 5 penalty was a threat 
which left her, as owner of the property and "director" of MISL with" no alternative, but to 
agree to execute" the second registered third party mortgage on 19 August,2013 is baseless. 
The alleged threat was contained in the letter of offer relied on by the defendant. 
19. In my judgment, it was lawful for the plaintiff to impose the penalty, in terms of clause 7.3, 
as MISL was in default of repayment. 
20.	The affidavit in reply filed on behalf of the plaintiff has drawn my attention to its subsequent 
offer letter of 4th June 2014, signed by the defendant. The offer letter of 4th June,2014 identifies 
a second registered guaranteed mortgage over the property, in its list of securities. 
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21.	The plaintiff states the tit issued another offer letter for the purpose of revolving overdraft on 
the MISL cheque account with the limit of $200,000.00 and the defendant agreed to provide a 
second registered mortgage over the property. The requirement for the registered mortgage 
over the defendant's property was additional security, which was required in order to secure 
the advance of $135,000.00 made to the defendant's business. 
22.	Significantly, the defendant did not challenge the second registered mortgage executed on 
19 August ,2013 until a period of five years lapsed. The allegation of duress is made after the 
plaintiff proceeded to mortgage sale. The defendant, in her affidavit in reply states that the 
mortgagee sale proceedings were initiated under the second registered mortgage by the 
plaintiff's default notice of 9 May,20 17. The writ in HBC 68 of 20 18 was issued subsequently 
on 14th March, 2018, on behalf of the defendant, as provided in the defendant's affidavit in 
support of 1st  October,2018. 
23.	The defendant, in her affidavit in reply states that "she refused to agree" to the second 
registered mortgage. The second paragraph of the letter of 18th June,2013, referred to above 
provides that when a representative of the plaintiff "visited (the defendant's)office for 
execution of legal documents (it). was refused by the director pending consultation of 
solicitors ". 
24. The only reasonable conclusion that the Court can draw is that the defendant had subsequently 
obtained independent legal advice. The defendant has not contended at any stage that she did 
not obtain independent legal advice. Mukesh Nand, Barrister and Solicitor, Commissioner for 
Oaths states that "the signature of (the defendant) was made in my presence .. and J certify 
that the contents hereof was read over and explained to the Mortgagor in the English language 
and (she) appeared to fully understand the meaning and effect thereof. in (his) presence". 
25.	In the result, I find and hold that the defendant's contention that the secondary mortgage was 
executed by her due to a threat and duress on the part of the plaintiff is unfounded. I conclude 
that the defendant had willingly agreed to provide a second registered mortgage over her 
property. 
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26. Peter Millet QC in A ec Lobb(Garages) Ltd v Total Oil GB Ltd, [1983] 1 All ER 944 at pg 
960 as follows: 
.. I accept that commercial pressure may constitute duress and render a 
transaction voidable, provided that the pressure amounts to a coercion of 
the will which vitiates consent: see Pao On v Lau Yiu]I 979J 3 All ER 
65, .. Economic duress, however, is still a form of duress. A plaintiff who 
seeks to set aside a transaction on the ground of economic duress must 
therefore establish that he entered into it unwillingly(not necessarily 
under protest, though the absence of protest will be highly relevant) that 
he had no realistic alternative but to submit to the .. demands's that his 
apparent consent was obtained by improper pressure exerted .. and that 
he repudiated the transaction as soon as the pressure was relaxed. 
(emphasis added) 
27.	Jitoko J in Gilmour v Kubs, 2007 FLR 47 at pg 57 referring to the case of Pao On v Lau 
Yiu,[1979]3 All ER 65stated : 
Economic duress, which the law now recognises as a category of duress, 
deals with commercial pressure that is brought to bear on one of the 
parties, to such an extent that he was effectively deprived of his freedom 
to exercise his own will. On this the law lords in Pao On case added at AC 
635; All ER 78:
Their Lordships agree with the observation of Kerr J 
Occidental Worldwide Investment Corporation v Skibs AIS 
Avanti [1976J I Lloyds Rep 293 at 336 that in a contractual 
situation commercial pressure is not enough. There must be 
present some factor "which could in law be regarded as a 
coercion of his will so as to vitiate his consent. ... In determining 
whether there was coercion of will such that there was no true 
consent, it is material to inquire whether the person alleged to 
have been coerced did or did not protest; whether, at the time 
he was allegedly coerced into making the contract, he did or 
did not have an alternative course open to him such as 
adequate legal remedy; whether he was independently 
advised; and whether after entering the contract he took steps 
to avoid it. Al these matters are, as was recognised in Maskell 
v Horner [I 915 J 3KB 106, relevant in determining whether he 
acted voluntarily or not.
.. But as the Privy Council noted Pao On, for commercial pressure to constitute 
economic duress, it must be to such as extent; 
that the victim must have entered the contract against his will, must 
have had no alternative course open to him, and must have confronted 
with coercive acts by the party exerting the pressure. 
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28.	In Gilmour v Kubs, [2007] FJHC 116, HBC 655J.1998S(30 January 2007) as cited by Mr 
Sharma, it was stated: 
In the end the Court is required to look at all the circumstances in which 
the allegation of duress took place and enquire whether the Kubs protested, 
whether there were alternative remedies; whether the Kubs had the 
opportunity and access to independent advise, including legal; and whether 
they took steps to avoid the contract. 
29.	The principle to be derived from the authorities I have cited is that a plaintiff who seeks to set 
aside a transaction on the ground of economic duress must establish that he entered into it 
unwillingly, he had no alternative course open to him such as an adequate legal remedy, his 
apparent consent was obtained by improper pressure exerted, after entering the contract he took 
steps to avoid it as soon as possible and he was not independently advised. 
30. I have found that the defendant has failed to establish these requisites. 
31.	I do not find it necessary to deal with the contention that the account and debt is that of MISL, 
not hers. The defendant is a director of MISL. It is for that reason she gave a primary and 
secondary mortgage on her property. I note that the directors had given an unlimited guarantee, 
as stated in the letter of offer of 24th August, 2012. 
32.	Mr Fa contended that the plaintiff has several other securities to realize the debt. In Ram 
Prasad vs ANZ Banking Group Limited (HBC 0121199S) it was held that. "a mortgagee, so 
long as part of the mortgage debt remains unpaid may pursue any or all of the remedies 
available to the mortgagee at the same time. " 
33.	In my judgment, the plaintiff, as mortgagee is entitled to obtain vacant possession of the 
property, in terms of clause 5.3 of the Mortgage no 787288. The plaintiffs contractual rights 
are fortified by section 75 of the Property Law Act ,which empowers a mortgagee to enter into 
possession of the mortgaged property, upon default in payment of the mortgage money or any 
part thereof. 
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34. The defendant has not paid the monies due to the plaintiff nor redeemed the mortgage. The 
plaintiff, as mortgagee has the right to claim possession. 
35. In Naipote Vere and Esita Takayawa v NBF Bank,Civil Appeal No. ABU 0069 of 2005, the 
Court of Appeal stated. 
It is clear that {he Appellants were in default under (he Mortgage and they 
admitted that to be the case during, the Trial. They did not, at any time, 
pay the monies required to redeem their equity into Court,· nor did they 
place themselves in a position to payout the Mortgage even though they 
were aware, at all material times of the Respondent's intention to exercise 
its Power of Sale under the Mortgage. 
36. The summons for vacant possession succeeds. 
37. Orders 
(a)  I order the defendant to give vacant possession of property in CT No. 29212, Lots 9 & 
    2 on DP No. 1888 & 5394 situated at 4 miles, Nasinu, containing 1 rood and 16 perches 
    with all improvements thereon to the plaintiff on or before 4pm on 2nd November, 2018. 
(b)  The defendant is restrained from interfering or removing the improvements on the property. 
(c)  The defendant shall pay the plaintiff costs summarily assessed in a sum of $1500. 
A.L.B. Brito-Mutunayagam
      Judge
19th October, 2018