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Devi v Shankar [2019] FJHC 509; HBC311.2016 (28 May 2019)

In the High Court of Fiji
At Suva
Civil Jurisdiction

Civil Action No. HBC 311 of 2016

Babita Devi
Plaintiff
v
Shiu Shankar
Suruj Mati
Defendants

Counsel: Mr M. Nand for the plaintiff
The defendants absent and unrepresented
Date of hearing: 21^st March, 2019
Date of Judgment: 28^th May, 2019

Judgment

1. The plaintiff, as administratrix and beneficiary of the estate of Bramanand aka Brama Nand aka Barma Nand, (deceased) seeks specific performance of a Sale note made between the deceased and the defendants on 30^th September, 1988 of Lease No. 241416, Lot 31 on DP 5655 located at Tovata Road, Makoi and damages for breach of contract.
   
2. The statement of claim states that the defendants are the registered proprietors of the property. The deceased paid the deposit of $2000.00 and took possession of the property. Two installments of $ 1000 and $ 700 were paid thereafter. The defendants have neglected and or refused to execute the transfer of documents. Their current residential address cannot be traced. The plaintiff is willing to fulfill her obligations by paying the outstanding sum of $300.00 to the defendants.
   
3. The plaintiff, in her affidavit in support has produced copies of the letters of administration issued to her, the Lease, Sale note, receipts, death certificates of the deceased and his wife and caveat filed with the Registrar of Titles.
   

The determination

4. The property in question is a housing lease.
   
5. The Sale note provides in clause 6 that the property is presently mortgaged by the defendants to the Housing Authority. Clause 8 requires both parties to jointly apply to the Housing Authority for its consent to transfer the property, upon “obtaining a discharge of the mortgage”.
   
6. Clause 2 of Lease No. 241416 states:

The lessee shall not transfer mortgage assign sublet or part with the possession of or alienate or deal with the demised land or any building thereon or any part thereof without the written consent of the lessor first had and obtained which consent may be withheld in the absolute discretion of the lessor.(emphasis added)

7. The plaintiff has not provided evidence of the discharge of the mortgage nor the written consent of the Housing Authority for the transfer. In my judgment, the plaintiff cannot obtain the relief sought without satisfying these two conditions.
   
8. The claim fails.
   
9. Orders
   1. The plaintiff’s claim is declined.
   2. I make no order as to costs
      

A.L.B. Brito-Mutunayagam

JUDGE

28^th May, 2019