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Maruti Jewellery Ltd v Prasad [2012] FJMC 224; Civil Action 426.2009 (21 September 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI
CIVIL ACTION N0: 426/2009

BETWEEN:

MARUTI JEWELLERY LIMITED,
Plaintiff

AND:

MICHAEL MAHENDRA PRASAD
Defendant

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Mr, Samad for the Plaintiff,
Mr.Lewenigila for the Defendant,

Date of the Judgment: 21st of September 2012.

JUDGMENT

1. The Plaintiff instituted this proceedings against the Defendant by filing a writ of summon together with his statement of claim seeking following orders inter alia,
   
   1. Judgment in the sum of $1505.93,
   2. Cost of this action,
   3. Such further and/or any other relief as this honorable court may deem just.
      
2. The plaintiff claimed in his statement of claim that on or about 25th day of September 2009, the defendant sold some jewellery (mentioned in details in paragraph 3 of the statement of claim) informing the Director of the Plaintiff company that the items were pure gold jewellery for the total price of $907.80. However, the Director of the plaintiff company later found that it was imitation jewelries and not of pure gold.
   
3. The plaintiff further stated that the Director of the plaintiff company had requested the defendant to refund the money and take the imitation jewelries but no avail. Accordingly the plaintiff stated that the plaintiff suffered loss of earning from jewellery business in the sum of $500 by being sold imitation jewelries by the Defendant.
   
4. The Defendant in his statement of Defence denied the plaintiff claim and stated that around the time stated by the plaintiff one Jogia Bharat, the director of the plaintiff company took from the defendant almost 200 grams of assorted second hand or damaged pure gold ornaments for the purpose of melting for the total consideration of the amount of around $4000. The defendant further admits that said Mr. Jogia came to him with some new fake gold ornaments after the said sale. However the defendant vehemently denied that those fake gold ornaments were ever bought from him by Mr. Jogia.
   
5. The Defendant further claimed that because of this false allegation by the plaintiff he has to suffered loss of business because of his numerous attendances in court. Accordingly the Defendant sought following orders as counter claim inter alia;
   
   1. An order for damages for loss of business,
   2. Punitive damages in the amount of $ 4,100,
   3. Indemnity cost and any such further relief and orders as this court may deem fit,
      
6. The plaintiff reiterated his claim in his reply to the statement of defence and denied the counter claim of the Defendant. The plaintiff further stated that the defendant sold him imitation jewelries through deceit. The jewelries were bought on trust and the defendant does not suffer loss in the business.
   
7. Subsequently, the case was set down for the hearing. The plaintiff called three witnesses to give evidence on oaths for the plaintiff and the Defendant called three witnesses including the defendant for the defence.
   
8. Having considered the pleadings of this proceeding, I now turn to briefly review the evidence adduced by the plaintiff and the defendant. The first plaintiff witness is Mr. Barath Jogia who is the director of the plaintiff company. He stated in his evidence that he had been trading gold with the defendant who is the owner of a pawn shop. Mr. Jogia stated that he and the defendant had a mutual arrangement that he collect the gold from the defendant and pay him an advance and then takes the gold to his factory and test them. If the result is positive for the gold, he then settles any dues and obtains a receipt for the transaction. The witness tendered two receipts in order to establish his previous transactions with the Defendant.
   
9. Mr. Jogia stated in his evidence that he went to the pawn shop of the defendant on 25th of September 2009 and bought 2 pieces of chains, one bracelet, 2 pendants, and four hooks for a sum of $ 907.80. He stated that he did not check them and the defendant gave him it in a packet. He further stated that the transaction took place at the counter of the defendant's shop and two of his sales girls were present at the time of this transaction. The witness further stated that the defendant scaled the items and then he took them to his factory. Later he found that the items were not gold after tested them at his factory. He said a one police officer by the name of Akeai Waqa and his family was present at the time he tested these items at his factory. Mr. Jogia denied that he bought around 200g of gold worth of $4000 on the 25th day of September 2009.
   
10. Mr. Jogia stated in his cross examination that he had no time to check the items at the defendant's shop and he took them and paid the money. Moreover he stated that when he contacted the defendant subsequent to his finding of the fake gold, he asked him to come and return it and he will refund the money. However the witness felt suspicious on the defendant's behaviors and straightly went to the police to report the incident. The police advised the plaintiff to file a civil action as it is a personal dispute between him and the defendant.
    
11. The second Plaintiff witness is Cpl Akeia Waqa who was at Mr. Jogia's office at the time he tested those items and called the defendant about the fake gold. He admits in his cross examination that he came to know that Mr. Jogia tested some items after he was told by Jogia and only over heard the conversation between Mr. Jogia and the defendant.
    
12. The third plaintiff witness is Mr. Prakash Khera who is a professional jeweler and stated in his evidence that it is not possible to identify gold by just looking at it and need to test it in order to ascertain it.
    
13. The defendant in his evidence on oaths vehemently denied of selling of fake gold to the plaintiff. He stated that Mr. Jogia came to his shop and bought 200g of gold for a sum of $4000. He stated that Jogia checked them properly and then paid for the gold. He was not able to issue a receipt for the transaction as Jogia was busy and rushed back after the payment for the gold. He further stated that he never trade with gold hooks and never sold the fake gold ornaments that the plaintiff tendered as plaintiff's exhibits.
    
14. The second Defendant's witness is the manager of the defendant's shop Mrs. Vasenai Taimani. She stated in his evidence that she arranged some gold jewelries on the request of Mr. Jogia and left them with the Defendant as she was away on the day of this allege transaction.
    
15. The third defence witness is Mrs. Marie Shivani Prasad who is the daughter of the Defendant. She was with the defendant at the time when Jogia came and bought 200g of gold. She assisted Jogia to scale the gold and witness that he paid the defendant a sum of $4000.
    
16. In view of the pleadings and the evidence presented before the court, I find that both plaintiff and the defendant admit that there was a transaction between them on the 25th day of September 2009. The nature of the transaction is disputed by the parties as the plaintiff claim that he bought some gold items worth of $907.80 and later found them as fake gold. The defendant denied the plaintiff's contention and states that the plaintiff bought 200g gold worth of $4000 on that day after properly checks them.
    
17. The burden of proof lies upon the party who substantially asserts the affirmative of the issue. ( Robins v National Trust Co. (1927) A.C.515) The burden of proof in any particular case depends on the circumstances in which the claim arises. In general the rule which applies is " Ei qui affirmant non ei qui negat incumbit probation". It was held in Levy v Assicurazioni Generali (1940) A.C.791 that " this rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case; and partly because in the nature of things, a negative is more difficult to establish than an affirmative".
    
18. The standard of proof required in civil cases is generally expressed as proof on the balance of probability. Lord Denning in "Miller v Minister of Pensions (1947) 2 All E.R.372) held that "if the evidence is such that the tribunal can say "we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not".
    
19. Bearing in mind the aforementioned legal precedence on the issue of burden of proof and the standard of proof, I find that the burden is on the plaintiff is to prove on the balance of probability that he bought fake gold items worth of $907.80 and lost $500 of business due to the purchase of these fake gold from the Defendant. In order to prove such, the plaintiff has to first establish that the defendant misrepresented the fake items as pure gold and sold him for a sum of $907.80.
    
20. Mr. Jogia admits in his evidence that he did not check the packet the Defendant gave him and said that it was their mutual understanding that he paid in advance for the weight and take them to his factory and test them. The defendant contended contrast and claimed that Jogia intentionally avoid to obtain a receipt for the sale in order to manipulate this false claim against him. The defendant and his third witness categorically stated that Jogia scaled the gold with his own scale and checked them properly before he paid $4000. Having heard the two contrasting views of the plaintiff and the defendant, I have to determine that which one is more probable than other in order to reach to my judgment in this claim.
    
21. Mr. Jogia is a jeweler by profession and engages in this profession for more than 30 years. He has been dealing with the Defendant previously without any problem and this was the first time that he encountered with such problem with the defendant. He claims that the trading of gold is done based on trust. In respect of identification of the gold Jogia and his third witness who is also a jeweler by profession stated that no one will be able to ascertain the gold by just looking at it and need to test to confirm the gold.
    
22. In contrast, the Defendant claims that anyone who is in the trade of gold will be able to ascertain that plaintiff exhibit 3 is fake gold from its outlook. The defendant stated in his evidence that he identify the gold jewelry from the stamp of the back of it. He stated that the stamp on the back of the exhibits 3 are not the same stamp that normally comes with the gold items. In this context, Mr. Jogia too confirmed that Defendant gave him the packet after checking the stamp on them.
    
23. The plaintiff has no evidence to confirm that he bought only few items worth of $907.80 apart from the evidence of Mr. Jogia. Second and third plaintiff witnesses were not aware of the transaction. The plaintiff stated that he bought one pendent in his statement of claim. However in contrast he stated in his evidence that he bought two pendent and tendered two pendent as exhibit. This contradiction could cast the doubt of the actual nature and the value of the transaction which took place on the 25th day of September and overall the probability of the plaintiff's claim.
    
24. In view of the aforesaid findings, I am of the view that a jeweler of 30 years of professional experiences would not purchase gold without properly checking it and in this case as Mr. Jogia stated he had not even open the packet the defendant gave him. It is the plaintiff burden to prove his contention on balance of probability which I hold that the plaintiff has filed to prove it.
    
25. I now turn to the counter claim of the plaintiff which he claimed that he incurred loss for attending this baseless and malicious proceeding against him. His main contention is that he had to close down his shop wherefore, incurred lose of income. However the defendant and his second witness admit that they have only close the one part of the shop but retailer business is not close down. The defendant failed to preciously provide the evidence of his loss of business. Moreover there is no evidence presented by the defendant to satisfy the court of his cost of this proceeding. in view of these findings, I hold that the defendant has failed to prove his counter claim on balance of probability.
    
26. In conclusion, I order to dismiss the writ of summon and the statement of claim of the plaintiff and the counter claim of the defendant with cost to be paid by the Plaintiff.
    
27. The cost of this matter will be summarily determined with the presence of both parties.
    
28. Seven days to file notice of intention to appeal.
    

On this 21st day of September 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.