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Verma v Khan [2020] FJHC 371; HBA12.2015 (26 May 2020)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION
AT SUVA

Civil Action No. HBA 12 of 2015

BETWEEN:

SANJAY SINGH VERMA and BABITA KUMAR VERMA
APPELLANTS

AND:

MOHAMMED TALHAZ KHAN
RESPONDENT

Before:

Hon. Acting Chief Justice Kamal Kumar

Counsels:

Firstnamed Appellant in Person

No Appearance for Respondent

Date of Judgment:

26 May 2020

JUDGMENT

1. On 12 September 2014, Appellants filed Notice of Intention to Appeal Learned Magistrate’s decision delivered on 10 September 2014, in Nausori Magistrates Court Civil Action No. MBC 36 of 2006.
   
2. On 8 October 2014, Appellants filed Grounds of Appeal which was in following terms:-
   

“(1) That the learned Resident Magistrate erred in law and in fact by delivering its ruling without proper factual figures as the calculations in the ruling is entirely incorrect.

(2) That the learned Resident Magistrate erred in law and in fact by stating in paragraph 6 of his ruling that this amount has been totaled and according to the court record, paid in full.

(3) That the learned Resident Magistrate has acted in contravention of the rules of natural justice and basic constitutional right of the Appellants which is not to be heard only but to be properly heard.

(4) That the learned Resident Magistrate erred in law and in fact by considering the Respondent’s version of the story without any affidavit in response filled and the Appellant given a fair chance to defend the same by replying with their side of the story.

(5) That the learned Resident Magistrate erred in law and in fact by not disclosing to the Appellant the court record if it is referring to one in its ruling dated 10/09/2014.

(6) That the learned Resident Magistrate erred in law and in fact by not allowing the post judgment interest and by not doing so has also exceeded in its jurisdiction. A submission was filed by the appellants in that regard and it is evident that it was the respondent who was prolonging the repayment on JDS and henceforth incurred interest over the years when he evaded.

(7) That the learned Resident Magistrate erred in law and in fact by not even carrying out a means test and/or imposing any default period for the cost alone of $1,500.00 which was ordered in its ruling dated 10/09/2014. The enforcements stage is not clear in how many months and/or years the respondent will pay that awarded sum.

(8) That the learned Resident Magistrate erred in law and in fact by setting a precedent if not appealed that any debtor can take any length of time for payment of a judgment amount and will be spared from paying a post judgment interest is also against the Magistrate’s Court Rules.”

3. On 1 May 2015, the Appeal was called when both parties were directed to collect Copy Records from Court and this matter was adjourned to 3 July 2015.
   
4. Parties did not appear on 3 July 2015, when the Appeal was adjourned to 7 August 2015, with direction that “notice of adjourned hearing (“NOAH”) to be served on both parties.
   
5. On 7 August 2015, Firstnamed Appellant appeared only and the Appeal was adjourned to 8 September 2015, for NOAH to be served on Respondent.
   
6. On 8 September 2015, Respondent appeared only which when Appeal was adjourned to 2 October 2015, for NOAH to be served on Applicant.
   
7. On 2 October 2015, both parties appeared when the Appeal was adjourned to 7 October 2015, and Respondent was warned that if he fails to appear, Court will deal with the Appeal in his absence.
   
8. On 7 October 2015, the Appeal was set down for hearing on 8 March 2016, with direction that NOAH be served on the Respondent.
   
9. On 8 March 2016, only Firstnamed Appellant appeared and when Respondent failed to appear after his name was called three times, Court proceeded with the hearing.
   
10. On 28 August 2006, Appellant filed Writ of Summons against Respondent claiming $3,254.29 plus interest and costs.
    
11. On 4 September 2007, judgment was entered against the Respondent when he failed to appear in Court for the sum of $3,189.29 plus $81.88 and interest at the rate of 5% from date of judgment to date of payment.
    
12. On 5 December 2007, Appellants issued Judgment Debtor Summons (“JDS”) against the Respondent.
    
13. On 29 February 2008, Respondent filed Application to set-aside the Judgment entered in default.
    
14. On 11 July 2008, Learned Magistrate declined to set-aside the Judgment in Default.
    
15. Judgment Debtor Summons was heard with both parties present.
    
16. Ruling was delivered on 10 September 2014, when the Learned Magistrate held that according to Court records judgment debt has been paid and refused to make for payment of cost paid by Appellant for assisting in execution of bench warrant.
    
17. Appellants main contention in Appeal is that Learned Magistrate should have done proper calculation of monies paid by Respondent and costs incurred by him in assisting the Sheriff Officer to execute bench warrant issued against the Respondent.
    
18. As for calculation of amount paid by Respondent Learned Magistrate stated as follows:-
    

“6. By law the plaintiff is entitled to the judgment entered in his favour. He is also entitled to the sheriff’s expenses that he has been paying for the past seven years. This amount has been totalled and according to the court record, paid in full.”

19. Payments under JDS is made into Court, which is received and processed by the Court Officer.
    
20. Learned Magistrate relied on what was paid as per Court Record and according to him the Judgment debt has been paid in full.
    
21. This is a finding of fact is based on record held at Magistrates Court which this Court see no reason to overturn.
    
22. As for cost allegedly incurred by Appellants in assisting the Sheriff to execute bench warrant Learned Magistrate stated as follows:-
    

“7. He now implores the court for further costs because of the efforts that he has exerted in attempting to execute the judgment. His submissions falls in the radius of some $5,000.00.

8. Understandably, the plaintiff is frustrated with the defendant. The court echoes his emotion. The defendant has not until recently paid up the amount that the Court had ordered to pay. He purposefully evaded the sheriffs on numerous occasions and is the most substantial cause of the delay in this proceedings. Delays that almost amount to a decade. This is simply unacceptable.”
   
23. It must be noted that Judgment entered in Magistrate Court Action was for $3,189.29 plus costs of $81.88 and interest on $3.189.29 at the rate of 5% per annum from 4 September 2007, to date of payment.
    
24. When enforcing the Judgment Debt by issuing Judgment Debtor Summons or by other means, the Judgment Creditor can only claim what is the Judgment and not any other costs.
    
25. Under JDS, Judgment Creditor who in this case are Appellants could only claim the Judgment Debt plus indorsed cost stated at the back of JDS and not otherwise.
    
26. It must also be noted that execution of bench warrant is matter for Court Sheriff and the execution cost is borne by the Court and if Judgment Creditor comes forward to assist the Court Sheriff then they cannot claim for his/her expenses for doing so from Judgment Debtor.
    
27. It appears that Learned Magistrate awarded cost of $1,500.00 for hearing of JDS which is justified.
    

Costs

28. This Court takes into consideration that parties attended Court only few times and hearing did not take much time.
    

It is just that each party bear their own costs of the Appeal.

Orders

29. I make Order as follows:-
    
    • (i) Appeal is dismissed and struck out;
    • (ii) Each party bear their own cost of Appeal.
      

K. Kumar

ACTING CHIEF JUSTICE

At Suva

26 May 2020

Firstnamed Appellant in Person
Respondent in Person