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Sen v Sen Brothers Tranpsort Co - Ruling on application to set a time for compliance [2019] FJHC 303; HBC154.2016 (29 March 2019)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 154 OF 2013

Appearances : Mr V. Sharma for the plaintiff
Mr S. Krishna for the defendant
Date of Hearing : 29 March 2019
Date of Ruling : 29 March 2019

R U L I N G
[on application to set a time limit for compliance]

[01] This is an application filed by the defendant seeking an order setting a time within which the consent judgment entered in this action must be complied with. An affidavit of Amitesh Kumar Sen, the Director of the defendant company who in his affidavit deposes that:

1. The plaintiff in court in the presence of his solicitors on the day of the trial had confirmed that they agree to settle this matter where either party in this action will buy other party’s share after the valuations are done by the appointed Accountant, Nirbhay C. Rekha & Associates. This was the consent order.
   
2. The defendant was ready to have the valuation carried out, however the plaintiff was not responding to request to have the meeting with the Accountants for valuation hence the defendant could not do anything (see paras 14 and 15 of the affidavit of Amitesh Kumar Sen).

[02] This application is made under Order 47, Rule 7 of the High Court Rules 1988, as amended (‘HCR’). It will be noted that the application quotes an incorrect rule. The correct rule to be relied upon by the defendant is rule 5, not rule 7 of Order 45. Under this rule (Rule 5) the court has power to set a time limit within which the judgment is to be complied with. That rule provides:

‘Judgment etc requiring act to be done, order fixing time for doing it (O 45, R 5)

5 (1) Notwithstanding that a judgment or order requiring a person to do an act specifies a time within which the act is to be done, the Court shall, without prejudice to Order 3, Rule 4 have power to make an order requiring the act to be done within another time, being such time after service of that order, or such other time, as may be specified therein.

(2) Where, notwithstanding Order 42 Rule 3(1), or by reason of Order 42 Rule 3(2), a judgment or order requiring a person to do an act does not specify a time within which the act is to be done, the Court shall have power subsequently to make an order requiring the act to be done within such time after service of that order, or such other time, as may be specified tn.

(3(3) An application for an order under this Rule must be made by summons and the summons must, notwinding anything in Order 65, Rule 9, be served on the person required to do the act in questquestion.’ (Emphasis added)