Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

Goundar v Sharma [2011] FJMC 105; Civil Case 04.2010 (19 September 2011)

IN THE MAGISTRATES COURT AT NASINU

Civil Case No. 04/2010

1] ADI NARAYAN GOUNDAR
2] PRIYA ANJANI
Plaintiffs

1] HARISH CHAND SHARMA
2] UTTRA KUMARI
Defendants

Mr. A. Singh for the Plaintiffs
The Defendants were absent and unrepresented.

Judgment

1] By writ of summons the plaintiffs commenced this action against the two Defendants. The Facts of the case are as follows;

2] BY a written agreement dated 27th August 2009 and entered between the Plaintiffs and the Defendant, the Defendant agreed to sell and the Plaintiff agreed to purchase property comprised in Housing Sub Lease No. 277172 known as Lot 2 on DP No. 5828 containing an area of 487 sqm for the consideration sum of $35,000.00.

3] AT the time of and in consideration of the Plaintiff's entering into the said agreement for sale, the Defendant agreed with the Plaintiff as to payments as follows:

[a] That the purchasers have already paid the sum of $5,000.00 to the Vendors (the receipt of which sum the Vendors do hereby admit and acknowledge).

[b] The sum of $5,000.00 shall be paid to the Vendors by the Purchasers upon the execution of this agreement (the receipt of which sum the Vendors do hereby acknowledge).

[c] The balance purchase price of $25,000.00 shall be paid to the Vendors within 90 days (the date of Settlement) however further specific extension of time for settlement may be provided at the absolute discretion of the party not in default.

4] THAT pursuant to the agreement the Plaintiff paid the deposit in the sum of $10,000.00 to the Defendant, as follows:

5] THAT the Defendant's failed to effect settlement within the time frame and the Plaintiff's requested for the refund of the deposit of $10,000.00.

6] BY a letter dated 19 November 2009 the Defendant's Solicitor's requested 3 weeks to refund the deposit.

7] BY a letter dated 20 November 2009 the Plaintiff's Solicitors agreed to accept the refund of $10,000.00 in 3 weeks plus costs incurred.

8] THE Defendants defaulted in the refund of $10,000.00 within 3 weeks and on 17 December 2009 the Plaintiff's Solicitors by Demand Notice demanded the said sum of $10,000.00 plus general damages in the sum of $5,000.00 but the Defendants have neglected to pay the same.

9] Thereby the plaintiffs seek following reliefs against the Defendants by this claim.

1. Judgment on the sum of $10,000.00;

2. Further, damages for breach of contract in the sum of $5000.00;

3. Costs of this action;

4. Who claim to be limited to $50,000.00 being the jurisdiction of this Honorable Court.

10] On 25th February 2011 the 2nd Defendant was Present and she filed medical certificate for 1st Defendant. The tendered documents revealed that 1st and 2nd defendants are husband and wife. Then case was fixed for hearing on 03rd August 2011.

11] On 03rd August 2011, both Defendants were absent. Counsel for the plaintiffs, Mr. Singh moved that matter to be formally proved. The Court allowed the application and case was formally proved thereafter. The formal proof evidence was led on same date and Judgment is for today. I now consider evidence.

13] On formal proof, 1st Plaintiff, Mr. Adi Narayan Gounder gave evidence. He said that they entered sales agreement with the defendants to purchase a property and total sum of $35,000FJD. In that the plaintiffs agreed to purchase Lot 2 on DP 5828. The copy of sale agreement tendered as Ex-1. He said that has been signed by all parties. But it could be noted only 1st Defendant has signed. In view of that agreement he further said they paid $10,000FJD by two installments to the defendants. For that 1st Defendant issued receipts. Those receipts were tendered as Ex-2. Then, the defendants later reduced sale price to $30,000FJD. That letter was tendered as Ex-3. The plaintiff said that the defendants did not sell the property as agreed and they have not refunded their money $10,000. Therefore he lodged caveat and it was marked as Ex-4. Then, he said his lawyer sent a letter of demand to refund this money. Copy of letter of demand tendered as Ex-5. For that he said he received reply letter from Nands Law acknowledging the debt and asking three weeks to refund it. It was tendered as Ex-6. Because of this transaction, the Plaintiff said he incurred lots of expenses such as phone bills, transport, Valuation and solicitors fees. He said he got valuation report for sale property by paying $176. He paid $250 for caveat and $250 for legal fees for caveat. Valuation Report marked as Ex-7.

14] It is peculiar at the middle of the hearing that the 1st defendant filed a medical certificate through court clerk. But no second defendant was present at the hearing. Counsel for the Plaintiff objected for any adjournment and the defendants have no defence and this is just delaying tactics. The Court upheld the objection and trial again proceeded.

15] The plaintiff said he arranged a loan and he paid $350 loan fees for appraisal. Copy of that report was tendered as Ex-8.The Plaintiff therefore prayed $10,000 the money that he paid to the defendants and $5000 as special damages that includes all cost and inconvenience. The Plaintiff prayed judgment accordingly. The Plaintiffs then closed the case.

15] I now evaluate the evidence before me. It is to be noted that the defendants have jointly filed the Statement of Defence on 12th May 2010. The Plaintiff has filed reply to the counter claim on 09th June 2010. Ex-1-sale Agreement clearly shows the vendors are both Defendants and purchasers are both Plaintiffs. But in Ex-1, only 1st Defendant has signed and Ex-2 receipts were also issued by the 1st Defendant. In the Statement of Defence the Defendants claimed that second defendant did not consent to the agreement as the one of owner of agreement. But this nullifies by Ex-3. In that both defendants have signed and it clearly shows the defendants' intention of selling this property. This letter was addressed to the Colonial Bank and it says " This is to inform that I Harish Chand Sharma & Uttra Kumari of Lot 2 Kanace Road, Valelevu do hereby confirm that we have reduced the selling price of our property to $30,000". In that Ex-3, both have signed and it indicates though there is no 2nd Defendants signature in Ex-1, but she had fully agreed to sell the property for $30,000. The Plaintiff did not ask or pray for specific performance of Ex-1 and hence there is no harm to this action by not signing 2nd defendant in Ex-1. On tendered documents, it is seen that Ex-6 the Nands Law acted on behalf of the Defendants (Para 1 "We act for Harish Chand Sharma and Uttra Kumari") on 19th November 2009. It was addressed to the Plaintiff and in averment 3; it says "Pursuant to the said agreement you paid a sum of $10,000 to our client as deposit". This was further proved by receipts tendered as Ex-2. Moreover, In Ex-6- Para 5, it further says "Our clients therefore require at least the 3 weeks to sort out their difference and decide whether to proceed with the sale or refund whole deposit sum together with reasonable expenses incurred by you"

16] At the trial they were not present and the Defendants did not challenge the Plaintiff's evidence. The documentary evidences are strengthened the plaintiff's case. It is shown that the Plaintiffs paid some monies to prepare Valuation Report and Mortgage Bond. And further they spent Caveat Fees and In Ex-6 the Defendants agreed to refund whole deposit sum together with reasonable expenses incurred by them. But the defendants did not refund any money and the plaintiffs were deceived and the defendants misappropriated the said money.

17] The Plaintiffs paid this money during on 25 and 27-08- 2009. It is almost now two years and they did not pay single cent though they have promised to refund it by Ex-6. The Plaintiff asked $5000 as special damages in general. I am of the view this amount is reasonable as they (The Plaintiffs) do not ask specific performance of the sale agreement.

18] Therefore the evidence placed before me are very satisfactory. I have no reason to disbelieve the Plaintiff's evidence. I am satisfied that the Plaintiff has proved its case balance of probabilities.

19] Therefore, I make following orders.

1. There will be judgment for the Plaintiffs. I grant Judgment in the sum of $15,000 as the Plaintiffs prayed in the Statement of Claim( In total)
   
2. The Defendants' Statement of Defence and counter claim is hereby struck out.
   

100. 5.00% interest as set out in Order XXXII-Rule 8 of the Magistrate Court Act-Cap 14 from the date of this judgment until the full sum is paid by the Defendants, but limited to $50,000.
     

17] Judgment to be entered accordingly.

On 19th September 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu