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Prasad v Rajput [2024] FJHC 667; HBC67.2023 (8 November 2024)

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

CIVIL ACTION NO. HBC 67 of 2023.

BETWEEN

NILESH PRASAD,
of 1/51, Fernaig Street, Papakura, Auckland,
New Zealand
PLAINTIFF

A N D
ROSELYN RAJPUT aka ROSNIL VIKASHINI SINGH.
Nasau, Nadi
DEFENDANT

BEFORE : A.M. Mohamed Mackie- J

APPEARANCE : Mr. R. Kumar- For the Plaintiff.
: Ms. J. Singh – For the Defendant (for limited purpose)

DATE OF FORMAL PROOF HEARING : 9^th May 2024
WRITTEN SUBMISSION : Filed by the Plaintiff on 17^th July 2024.
DATE OF JUDGMENT : 08^th November 2024.

J U D G M E N T

1. INTRODUCTION:
   
   1. The plaintiff, by his Statement of Claim (SOC) filed on 23^rd March 2023, brought this action against the defendant claiming the following reliefs:
      
      1. Judgment for the sum of NZ$213,814.04 (Two Hundred Thirteen Thousand Eight Hundred Fourteen in New Zealand Dollars and Four Cents) as per paragraphs 14, 18 and 26, against the Defendant to be converted to Fijian Dollars on the date of judgment.
      2. Judgment in a sum of FJ $ 8000.00(Eight Thousand Dollars) as per paragraphs 8 and 13 above.
      100. Damages,
      4. Interest thereon from the date of the writ to the date of the judgment at the rate of 10 percent per annum.
      5. Interest under the Law Reform (Miscellaneous provisions) (Death and Interest) Act.
      6. Costs of this action.
      7. Such further and/or other relief as to this honorable Court deems just and expedient.
         

B. BACKGROUND FACTS:

2. The background facts of the Plaintiff’s claim, as averred in the SOC, are THAT ;
   
   1. The plaintiff is a Fijian citizen residing in New Zealand and is a Businessman.
   2. On or about 26^th July 2021, the Plaintiff met the Defendant through a mutual friend and both parties showed intention to get married in the near future.
   3. The Defendant informed the Plaintiff that she was studying in Australia to become a doctor and she had one year remaining.
   4. On or about 29^th July 2021 the Defendant asked the Plaintiff for financial support and promised to pay the Plaintiff back.
   5. The Plaintiff started sending money to the Defendant through Western Union, and through Money Gram transfers.
   6. The Defendant informed the Plaintiff that she had to pay her Lawyer’s fees and obtained approximately NZ $ 50,000.00 from the Plaintiff.
   7. The Defendant further asked for money to renew her two land leases at Maro , Sigatoka, and the Plaintiff gave the Defendant NZ $ 27,000.00 for the lease renewal of 95 acre land and NZ $ 14,000.00 for the lease renewal of 25 acre land.
   8. The Defendant asked for FJ$3,000.00 to transfer the Car belonging to her late Father unto her name, which was on lease with the Merchant Finance Pte. Limited and the Plaintiff sent Fj$3,000.00
   9. He continued with the monthly payment for the car until February 2022.
   10. On or about 7^th February 2022 on the Defendant’s request that she needed NZ $ 14,000.00 to pay the Australian Government, he sent NZ $ 14,000.00 to the Defendant.
   11. On or about 26^th April 2022, when he came to Fiji, the Defendant told that she needed $27,000.00 to complete a short course to be qualified and be a registered doctor to work in New Zealand , and he gave NZ $ 27,000.00.
   12. The Defendant asked for additional $14,000.00 as exam fees and he paid NZ$ 14,000.00.
   13. They had a religious wedding ceremony in Suva, and he brought jewelries for a sum of FJ $5,000.00.
   14. He brought for her a Samsung Filip Phone for NZ $ 2,700.00, an iPhone pro Max for NZ $ 2,400.00 and a Laptop for NZ $ 1, 000, 00.
   15. On or about 21^st June 2022, the Defendant informed him that as she is being held by the customs in Fiji, she needed to pay them $ 4,000.00 and accordingly, he sent the Defendant NZ $ 4,000.00 and an additional sum of NZ $ 4,000.00 for her Airfare and other expenses.
   16. On or about 2^nd July 2022, the Defendant was supposed to meet him in New Zealand, but she messaged him that she is being held by the Custom in Australia and she needs support.
   17. He tried to contact the Defendant, but she evaded his calls, messages and not responded.
   18. He had given the Defendant his ASB ATM Card, which she used to withdraw and/ or to spend NZ $ NZ $ 61,137.04.
   19. He sent the monies to the Defendant on the assurance that she would return the monies given by him when she becomes a doctor.
   20. He came to Fiji on 9^th November 2022 and found out that the Defendant was not living in Australia, but staying in Fiji. He received information that the Defendant was serving a prison term.
   21. He reported the matter to the Police on 25^th of November 2022, the investigation is continuing and he has been assured that she will be charged soon.
   22. He had taken significant loan from his Company ‘Fairways Digging Works Limited’ and other lending institutions to pay the Defendant.
   23. There have been numerous demands made against him from the lending institutions in NZ and he has been warned of legal proceedings being instituted against him, if he does not settle the debts.
   24. The Defendant had fraudulently obtained Monies from him.
       

Particulars of Fraud are as follows;

1. The Defendant asking money from the Plaintiff on the pretense to pay for her school fees to become a doctor;
   
2. The Defendant asking the Plaintiff to pay for her medical exams fees, when she never set for any medical exams;
   
3. The Defendant asking for money from the plaintiff on the pretense to pay the Australian Government, when there was no such monies demanded by Australian Government;
   
4. The Defendant asking him to give her money on the pretext to pay the custom officers in Fiji, when there were no such monies levied against her;
   
5. The Defendant asking monies to her on the premises that she would return the monies, when she had no intention to return the monies.
   

2. SERVICE OF SUMMONS & FORMAL PROOF HEARING:

3. The writ of Summons, being served on the Defendant, as no Statement of Defence was filed, the Plaintiff on 22^nd August filed the Summons for formal proof. This also being served on the Defendant, Messrs. Ace Legal filed the Notice of Appointment and the acknowledgment of Service for the Defendant on 27^th September 2023.

4. When the matter was mentioned on 06^th December 2023, to fix a date for formal proof hearing, the Defendant appeared in person, while her Solicitors had indicated by a letter that they intend to withdraw as Solicitors for the Defendant. However, the Court fixed the formal proof hearing for 09^th May 2024, leaving the Defendant at liberty to make the appropriate Application once the formal proof judgment is served on her.
   
5. When the matter came up for formal proof hearing on 09^th May 2024, the new Solicitors, Messrs. M.Y. Law, who had come on record for the Defendant on 29^th February 2024, indicated that they are also withdrawing as Solicitors for the Defendant. However, the Court proceeded with the formal proof hearing, after allowing the withdrawal of Messrs. M.Y. Law with the consent of the Defendant, who was left at the liberty to cross examine the Plaintiff at the formal proof hearing, if needed. However, the Defendant left the Court Room without availing of the opportunity to cross examine the Plaintiff.
   
6. Accordingly, the formal proof hearing was taken up, wherein the Plaintiff gave evidence on his behalf by marking documents from “Pex-1” to “Pex-8”. Subsequently, the Plaintiff’s Counsel filed written submissions on 17^th July 2024 and the Court has now been called up on to deliver the judgment.
   

100. EVIDENCE OF THE PLAINTIFF:

7. The Plaintiff in his oral evidence , inter alia , averred THAT:
   
   1. He met the Defendant and got to know her through a friend of him , namely Sanjay , who is known from his age of 16, and his sister Sangeetha Devi , who said she ( the Defendant ) is a good lady and arranged her for him , so he can be settled with her . As soon as he started talking, these things happened to him (answer to question 1 & 2 in page 5 of the transcript).
      
   2. It was also told to him by Sangeetha Devi that, the Defendant is single and she knows her very well from a long time, that he can get settled with her as she is a good lady and she can go in good terms with him. That he meant “settlement “as getting married to her.
      
   100. He had not divorced with the first marriage at that time and he was waiting for the divorce, then he can get in legally with her. But she said she was divorced and her marriage was just for a week and she had separated with her ex.
        
   4. When asked, what is all about his claim in his SOC, he said, “It is all about loan I gave to her from my Company. Because she said that she is doing a doctor course, heart surgeon. And she has one year left. And she doesn’t have any parent’s support for her to finish her studies. So I said, you are becoming my partner. So I can Support you. And I took out the loan. She started asking money for the fees”. (Emphasis mine) (Vide Page 5 the answer one before the last one).
      
   5. He sent money by Western Union, by Money Gram. And when he came to Fiji, after the lockdown, he gave his Bank Card to her. So she can..... (Vide Page 5 the last answer).
      
   6. When he was asked that the money he gave her was it because he was getting married? Or did she ask for a loan? (Leading questions). His answer was “she asked for a loan because she said after her graduation, she’s going to return that money back to the company. To me. Because I took the loan from my company and some other lending to finish her studies. And she always says that she is going to finish in two weeks. She is going to finish her studies, get graduated and give my money back. But that thing never happened”. (Vide 1^st answer in page 6).
      
   7. When asked, how long he knew her before started sending her money, his answer was “As soon as I know her from my friend’s Sister. And after two weeks, then I start sending money. And it was lock –down there. So I came here to visit here. So by the time lock-down finished, I already given her $200,000.00 New Zealand Dollars”. (Page 6 answers 4 & 5).
   8. “....I always had to send money by Western Union and Money Gram. So I gave my personal Bank Card to her...... I am telling her, okay, you can take this much. So she’s withdrawing with the bank card” (page 7 -5^th answer).
   9. When he was asked “And you have also stated, Mr. Prasad, that you have brought jewelry for her while you were in Fiji, why was that? His answer was “That’s her demand that she needs much jewelry, phones and other stuff” (vide page 9- 7^th Answer). (emphasis mine)
   10. “....because when she asks for money, this much I have to pay, so I have to pay. Like I am sending money to her that much. And sometimes she asks for food money as well. So that’s why I am sending sometimes a little bit extra money like that” (vide page 15 -the answer one before last one) (emphasis mine).
       
   11. “.... And she just complained that ‘I am not going to do any studies’. So and so. Next day she demanded for that money” (vide Page 19- 6^th answer)(emphasis mine)

4. ISSUE:

8. The only issue that lies before the Court is, whether the remittance or giving of monies by the Plaintiff to the Defendant, Providing his ASB ATM Card for her to withdraw monies and / or to purchase goods and services over a period of time, and buying Jewelries, Phones and Lap -Top for her, as averred in his SOC & evidence, were on the basis of loan?

F. DISCUSSION:

9. The plaintiff claims for the return of NZ $ $213,814.04 being the monies he sent to the Defendant, ROSELYN RAJPUT aka ROSNIL VIKASHINI SINGH, over a period of time from July 2021 till October 2022 in the following manner.
   1. NZ $ 6,100.00, being the total value of the Samsung Flip Phone NZ $ 2,700.00, that of the IPhone Pro max NZ $ 2,400.00 and that of the Laptop NZ $ 1,000.00 , brought by the Plaintiff for the Defendant as averred in paragraph 14 of the SOC.
   2. NZ $ 61,137.04, being the usage of the Plaintiff’s ASB ATM Card by the Defendant as averred in paragraph 18 of the SOC.
   100. NZ $ 91,213.00, being the remittance made by the Plaintiff to the Defendant through Western Union Money Transfer as averred in paragraph 26 of the SOC.
   4. NZ $ 55,364.00, being the remittance through Money Gram as averred in paragraph 26 of the SOC.
      
10. The Plaintiff also claims FJ $ 8,000.00, ( FJ $ 5,000.00 being the purchase price of the jewelries for the Defendant, and payment of FJ $ 3,000.00 to transfer her Father’s Vehicle unto her name, as averred in paragraph 8 of the SOC.
    
11. The facts that the Defendant did not file a Statement of Defence and his evidence went in unopposed, will not absolve the Court from carefully scrutinizing the evidence and deciding whether the Plaintiff is entitled or not to the reliefs prayed for in the SOC.
    
12. The pleaded causes of action, as per paragraph 25 (i), (ii), (iii), (iv) & (v) of the SOC, was that the Defendant had fraudulently obtained monies from the Plaintiff. In order to substantiate his claim, he in his evidence has marked the ASB Statements as “Pex-1” & “Pex-2”, the Money Transfer History from the Western Union as “Pex 3”, and the Money Gram transfer statement as “Pex-5”.
    
    13. No sooner had the plaintiff met the defendant on or about 26^th July 2021 through a mutual friend, whom he had known since his age of 16, than both parties expressed interest in marrying each other. Subsequently, they underwent a religious wedding ceremony at a temple in Suva. In my view, if not for the mutually agreed, immediate intimacy they established upon first meeting—which led to the religious marriage and, without question, placed the plaintiff in an advantageous position with regard to his expectations expressed when the money was asked by the Defendant initially—the plaintiff would have had a strong cause of action against the defendant.
        
    14. As per the averments in the SOC and the evidence, the Plaintiff first met the Defendant on 26th July 2021. They developed an immediate relationship and decided to marry. On 29^th July 2021, just three days later, the Defendant requested financial support from the Plaintiff. It is notable that when the Plaintiff began sending money or thereafter, there was no any agreement or arrangement indicating that she would repay the amount. She appears to have received the funds from the Plaintiff without any obligation to return them, and there is no evidence to suggest that the Plaintiff was giving or the Defendant was receiving the money as a loan.
        
    15. Apparently, if the Plaintiff was in fact giving money as a loan, he would undoubtedly, have maintained his own record, instead of fully relying on the Bank Statements. Apparently, they were not physically together at all the times. If the money was sent as loan, there should have been some correspondences in the form of e-mails and/or typed or voice messages over the phone. The plaintiff did not tell her or indicate that he was giving the money as a loan.
        
    16. The evidence of the Plaintiff, clearly suggests that when the Defendant initially asked for money, the Plaintiff struck a deal on it and got the Defendant to agree that he will support her on account of she becoming his partner. Vide his evidence in page 5 reproduced in paragraph 7 (d) “......So I said, you are becoming my partner. So I can support you ....”
        
    17. Subsequently, the Plaintiff went to the extent of buying jewelries for her and having a Religious Wedding with the Defendant in Suva. No evidence to show that it was the Defendant, who asked to buy Jewelry or other materials or she acted with the ulterior motive of obtaining money and materials.
        
    18. Apart from buying jewelries for her, it is in his pleadings and evidence that he bought 2 mobile phones and a Lap-top for her. No evidence to prove that these items were given by the Plaintiff creating an obligation on the part of the Defendant to repay the value of those goods. The facts and surrounding circumstances hereof, compel this court for an inescapable conclusion that the Plaintiff provided the above jewelries, goods and transferred monies and gave his ATM Card, for nothing, but in consideration of the Defendant becoming as his partner.
        

19. The plaintiff did not look at the Defendant’s capacity to repay the sizable money he was giving to her. He did not ask her to execute a statutory declaration or any agreement to repay at the time when he gave money to her or thereafter. He was giving money to the Defendant over a period of one year (15 months) commencing from July 2021 till October 2022. During this period there was no talk on the, purported, loan. Instead he continued to give money by transfer and also was generous enough to give his ATM Card to spend at her whims and fancies. He also brought valuable items, probably as gifts, and also did not take serious notice of her spending on more jewelries, as substantiated by the ATM Card Statement marked as “Pex-1”.

20. Pursuing the medical studies and becoming a Heart Surgeon is not an easy task that can be achieved overnight. The money was given over a period exceeding one year. It was not in one or few instances as averred in the SOC. It was a long and continuing process. If there was any semblance of fraud or deception on the part of the Defendant, it could not have continued and escaped the attention of the Plaintiff for such a long period of time. However, this process could not have continued as granting of loan. The Plaintiff was a businessman in Australia and he could not have been so gullible to keep on giving money to the Defendant by going to the extent of alleged borrowings by him. Now he is treating even the value of the goods he gave the Defendant as a loan given to her.
    
21. Was there any promise or arrangement by the Defendant that she would repay the monies she receive from the plaintiff? The monies were given to the Defendant without any security or promise to return it. The Defendant simply received the monies without any obligation to repay it because she was the partner of the plaintiff. A large amount of money had been remitted to the Defendant, without any promise on the part of the Defendant.
    
22. I don’t find any convincing evidence to prove that the Defendant did request the plaintiff to lend money to finance her studies. She seems to have made use of the intimacy both had developed which ended up in customary marriage. At the time when she received the money, she did not give any promise that she will return it once she become a doctor. I reject the plaintiff’s evidence that he lent the money to the Defendants upon her promise that she would repay it.
    
23. The most plausible conclusion that can be arrived at is that what was given by the Plaintiff to the Defendant was not a loan. He got her attention towards him by giving monies and goods.
    
24. I should emphasize that there was no evidence whatsoever demonstrating that the money and materials given were on the basis of loan. Given the fact that the plaintiff had become the partner of the Defendant, he was giving monies to the Defendant without any obligation to return it.
    
25. In arriving at the findings hereof, I stand guided by the judgments in the following cases.
    
    1. Wanigasekera v Sharma [2020] FJHC 168; HBC161.2018 (26 February 2020), and
    2. Andrew v Prasad [2023] FJHC 493; HBC98.2018 (25 July 2023) ( my Judgment)

G. CONCLUSION:

26. On the evidence, and for the reasons I have given above, I find that the monies and goods given by the plaintiff to the Defendant were not given as a loan. I would, therefore, dismiss the claim.
    

H. FINAL ORDERS:

a. Plaintiff’s claim fails.

b. Plaintiff’s action is dismissed.

DATED THIS 8^th DAY OF NOVEMBER 2024 AT HIGH COURT -LAUTOKA.

A.M. Mohamed Mackie.
JUDGE (Civil Division)

Solicitors
RONEEL KUMAR LAWYERS - Barristers & Solicitors- for the plaintiff
DEFENDANT Absent and unrepresented.