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Chief Registrar v Mishra [2011] FJILSC 11 (6 December 2011)

IN THE INDEPENDENT
LEGAL SERVICES COMMISSION

ILSC Action No: 021 of 2010

BETWEEN:

CHIEF REGISTRAR
Applicant

AND:

VIPUL MISHRA
Respondent No 1

AND

MEHBOOB RAZA
Respondent No 2

AND

MUHAMMAD SHAMSUD-DEAN SAHU KHAN
Respondent No 3

AND

SAHU KHAN & SAHU KHAN
Respondent No 4

EXTEMPORE RULING ON SUMMONS FOR STAY

1. The 1^st Respondent Vipul Mishra brings before the Commission a summons for a stay of the order for suspension of his practicing certificate contained in the orders made by the Commission on the 4^th of May 2011.
2. A further order is sought in the summons that the date given to the 1^st Respondent of the 31^st December 2011 to remove the mortgage of the Reserve Bank of Fiji from Crown Lease No 16375 be extended until determination of High Court Action No 189 of 2011.
3. In support of the motion Mr Mishra has filed an affidavit sworn on the 23^rd November 2011.
4. A further affidavit of Priya Preetika Lai sworn on the 5^th of December 2011 is also relied on by the 1^st Respondent.
5. No Evidence has been filed on behalf of the Chief Register
6. In his affidavit Mr Misha says that it has been difficult to communicate with Ambika Nand, the vendor of the subject land to Sashi Kiran Pratap and the person who mortgaged the property initially to British American Insurance Limited now the Reserve Bank of Fiji.
7. He further says that in addition to the difficulty in contacting to obtaining instructions from Ambika Nand, that Ambika Nand has had difficulty in obtaining some necessary documents from his former solicitor Sahu Khan and Sahu Khan.
8. This it is submitted is the reason that the Writ of Summons annexure "A" to the affidavit was filed prior to the 23^rd November 2011.
9. Thed Writ of Summons has a plaintiff Ambika Nand, The Reserve Bank of Fiji as 1^st Defendant and the registrar of Titles on 2^nd Defendant.
10. It seeks various orders including a declaration that the recording of the mortgage on State/Crown Lease No. 16375 is irregular and not in compliance with Section 60 of the Land Transfer Act. An order that the Memorial No's relating to the defendants mortgage be removed from the State/Crown Lease No. 16375 and the mortgage under State/Crown Lease No. 16375 be removed.
11. Whilst an order is sought for an injunction restraining the 1st Defendant from enforcing the mortgage until these proceedings are determined no interlocutory relief has been sought in that regard.
12. Whilst there is no evidence to this effect I am informed by counsel for Mr Mishra that Mr Mishra is currently in India for medical treatment and that he will be returning to Fiji in early January.
13. The Commission next sits on the 23^rd January 2012.
14. It is of concern that whilst proceedings have been commenced in the High Court it may be some time before those proceedings are finally resolved and that in the interim there is no protection for Sashi Kiran Pratap should the Reserve Bank of Fiji seek to enforce the right pursuant to the mortgage.
15. Annexure "D" the Affidavit of Mr Mishra of the 23^rd November 3022 is a form of Guarantee for Performance which is executed by him.
16. Whilst the Guarantee recites that it shall be the security for the whole money secured it is not supported by any bank guarantee or security deposit.
17. There is no evidence before me that the Reserve Bank of Fiji is accepting of the guarantee.
18. It is submitted on behalf of the Chief Register that the orders sought should not be granted and that the 1^st Respondent's practicing certificates should be cancelled in accordance with the orders of the 4^th May 2011 should compliance not be forthcoming.
19. It is further submitted on behalf of the Chief Register that the discretion then should rest with the Chief Registrar to reissue the practicing certificate when the Chief Registrar is satisfied there has been compliance.
20. Whilst I am conscious of the discretion given to the Chief Registrar under the legal Practitioners Decree with respect to practising certificates I think that it is inappropriate when the issue is the enforcement of an order of the Commission.
21. I also find it somewhat disconcerting that submissions of the nature are made by the Chief Registrar with respect to this matter when there are other matters where the orders of the Commission apparently have not been compiled with and practitioners have continued to be issued with practicing certificates.
22. In the circumstance therefore I think it is appropriate that there be some little time given to enable the 1^st Respondent to better put in place appropriate protections for the benefit of Sashi Kiran Pratap pending the determination of the High Court proceedings or the finality of any tights at appeal.

ORDERS

1. I Grant order 2 of the Summons until the 24^th of January 2012.
2. The 1st Respondent shall on or before the 24^th of January 2012;
   • (a) Seek an injunction as sought in order (g) of annexure "A" to the affidavit of Vipul Manojdutt Mishra of the 23^rd of November 2011.
   • (b) Furnish to the Reserve Bank if Fiji a guarantee or security deposit in a sum sufficient to cover the mortgage debt [including interest] enabling the Reserve Bank of Fiji to recover from the guarantee without further action.
3. I adjourn the summons to 10.00am on the 24^th January 2012.
   

6 DECEMBER 2011

JOHN CONNORS
COMMISSIONER