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Sharma v Vitiana Timbers Fiji Ltd [2010] FJMC 1; Criminal Case 70.2009 (15 January 2010)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Civil Case No: 70 of 2009

SAMBHU LAL SHARMA
Plaintiff

V

VITIANA TIMBERS FIJI LTD
Defendant

Before: C. Lakshman
Resident Magistrate

For Plaintiff: In Person
For Defendant: Mr Abhay K Singh

JUDGEMENT

INTRODUCTION

On 9th day of September 2009 the Plaintiff filed a Writ seeking a declaration that the Defendant was guilty of misrepresentation.

The Defendants on 5th October 2009 filed a Statement of Defence and a Counter Claim. On 22nd October 2009 the Plaintiff filed a reply to the Defence.

On 30th November 2009 the case was heard. The Parties were given until 15th December 2009 to file their submissions following the hearing.

THE HEARING

The Plaintiff’s witnesses were:

(a) Sambhu Lal Sharma

(b) Jagdish Narayan

The Defendants witnesses were:

(a) Niwaz Ali

(b) Nizam Buksh

THE EVIDENCE

Evidence of Plaintiff – Sambhu Lal Sharma – "Rely on statement of claim. Invoice – Exhibit - 1. Ask Court to note invoice. Provisions relating to stockiest do not deal with untreated. Told salesman that needed post for house. I was told that it was treated. Relied on Defendants statement and brought goods.

Posts delivered to me were rotten and as a result house has started sinking had to jack up my house and rest on support." Photos of posts – exhibit 2 and3.

"The defendant betrayed me said post in question were treated. Has not been treated. Materials I bought for extension were new timbers. At no place, I used 2nd hand material hoe has started shaking and sinking.

Seek court assistance to give a declaration that defendant has misrepresented. If I rebuild this house cost in excess of $50,000.00 seeking $50,000.00 damages."

Cross examination evidence – "bought 14 posts @ $10.00 each. 3 quotes from 3 other timber suppliers. I do not agree that I pay less for untreated and more for treated. Paid $10 per post. Ordered pine post and rough and dressed mahogany. Were supplied on the order. When delivered I checked whether they were treated or not. They were treated. Could smell chemicals from the post.

Why should return when I ordered and return if I ordered treated. I could smell the chemical. Mixed with concrete and put post in. dug hole put concrete bottom of hole put post and concrete on top. Do not know the need to put plastic. I did not use any chemical. Discovered it when it got rotten. Not my negligence."

There was no re-examination.

The 2nd Plaintiff witness was Jagdish Narayan. His evidence in chief was as follows: "design consultant. Dealing with timber. Ask for quote from defendant. Given a quotation. I spoke to defendant company they replied to me through an email. Received quotation from defendant it was emailed to me." Tendered as exhibit 4 and 5.

"The defendant stated they do not sell untreated pine posts."

Cross examination evidence – " printed from unwired. Still in my computer. I spoke to them on the phone. Requested them to email me. Do not have a fax. I have not seen Nizam.

In re-examination – "communication still in computer".

This was the Plaintiff’s case.

The Defendants case. The Defendants 1st witness was Niwaz Ali his evidence in chief was as follows: " Managing director of Defendant Company. For 4 years. In 2005 were selling treated and untreated timber. Invoice seen. Untreated pine post sold. We have treated and untreated. Treated cost would be $20 plus. In 2007 had treatment plant." D- exhibit 1 – Licence to treat. " we sell pine post @ $20.00. now with plant we sell mostly treated post." Other quotes marked as D-2, D-3 and 4-4. "safe to put plastic on post before putting it in the ground. The plaintiff purchased untreated post"

Cross examination evidence – "we stocked treated pine post. It was treated outside (by someone else.) not compulsory to put plastic around treated post. According to invoice, delivery and salesman only pine post was supplied."

In re-examination – " email - Suva and Labasa offices have different emails."

The 2nd witness for the defendant was Nizam Buksh his evidence in chief was as follows: "salesman at Vitiana Timber. 5 years with Defendant company. Know Plaintiff is our customer came to buy timber. Plaintiff ordered rough timber and dressed timber and some pine posts. 5" x 6’ @ $10. It was not treated. Plaintiff asked for untreated pine post. Plaintiff asked for untreated pine post. Treated post @ $25. Have sent email not sure of date. We now have a treatment plant. We now sell treated timber. Plant in 2007. In 2005 sold untreated post to Plaintiff. Plaintiff asked for untreated pine post. Plaintiff examined and was satisfied. When he came with order he wanted untreated pine post. He did not tell me the purpose of the post."

Cross examination evidence – "post were untreated. Have supplied pine post. If it were I would have written treated. I supplied goods according to customers order. You did not order treated pine post. Gave you complimentary shorts. Plaintiffs order was untreated and I supplied untreated. You did not tell me the purpose of the pine post. I supplied as per your order.

In re-examination – "purpose of free timber was of the big order. Plaintiff never told me the purpose of order.

ANALYSIS OF THE EVIDENCE

The Court noted the evidence that was tendered in through the respective witnesses for the Plaintiff and the Defendant. The Plaintiff claimed that the Defendant misrepresented to him and as a result he suffered loss and should be compensated by the Defendant.

The Plaintiff in his evidence stated that the Defendants salesman told him that the Pine posts were treated. The Defendants salesman denied this. The Plaintiff also relies on the Delivery Docket # 3576 which states that the Defendant Company is "stockist of: treated pine timber, treated pine post, treated kauvula..." The Defendants do not deny this.

The Plaintiff also stated that he told the Defendants Salesman the purpose of the purchase of the pine posts. The Defendants denied this.

The documentary evidence (Delivery Docket # 3576) that is before this Court is that the Plaintiff bought "pine post 14 length x 5" x 6" for $140.00". The Court notes that Delivery docket states that the Plaintiff bought 14 length pine post. The delivery docket does not state that it was treated or otherwise. It plainly states that 14 length pine posts were delivered to the Plaintiff. The Plaintiff has argued that he ordered treated pine post and that "when delivered I checked whether they were treated or not. They were treated. Could smell chemicals from the post." The Defendants all throughout have argued that the Plaintiff ordered untreated pine post and was supplied as per his order.

The Plaintiff in cross examination told the Court he checked the posts upon delivery and they were treated as he smelled the chemicals from the posts. The Plaintiff also upon taking delivery would have looked at the delivery docket and noted his order and cross checked with delivery of the posts.

The Court notes that the Plaintiff from his conduct of the trial is a knowledgeable person. He also seems to have an eye for details. He picked out from the Delivery docket that the Defendants were stockist of treated pine post. He surely would have scrutinised the delivery docket in detail and also noted that Defendant have on top of the delivery docket stated that they are "dealers in general native timber, pine and mahogany". In this part the Defendants make general reference that they deal with pine. They do not state only treated or otherwise. If the Plaintiff had ordered treated pine posts he would have made sure the delivery docket contained the words treated pine posts rather than just pine posts for the items he purchased.

It would have greatly assisted the Plaintiff if he obtained and tendered evidence to this Court a chemical analysis report that the posts had in fact had chemicals in it and that it was treated and that despite it being treated the post rot after sometime.

The photos that the Plaintiff has tendered are also of no value as they do not support the claim of the Plaintiff. They do not show any rotten post as is alleged by the Plaintiff. The Plaintiff has not tendered any evidence in Court that the post is rotten. No evidence was tendered in Court to support his claim that the post is rotten.

The Court has noted the demeanour of all the witnesses in Court. The Defendants were thoroughly cross examined and they maintained that they supplied as per the order of the customer, the Plaintiff. They were credible and gave truthful responses in court and the Court accepts their evidence. The Court is not satisfied on the balance of probabilities that the Defendants misrepresented to the Plaintiff. The Plaintiffs Claim fails.

THE ORDERS

Plaintiff’s Claim dismissed. 28 days to appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE

15/01/2010