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Kumar v Bano [2012] FJMC 249; Civil Case 115.2011 (11 July 2012)

IN THE MAGISTTRATE'S COURT AT LAUTOKA

Civil Case No 115/2011

BETWEEN

ANAND NILESH KUMAR
Plaintiff

AND

NAZIA FARINA BANO
Defendant

RULING

1. The Plaintiff instituted this action on the 7th February 2011 seeking the following remedies;
   
   • (i) Special damages of $ 50,000 in the sum of as assessed by the honourable court
     
   • (ii) General Damages not exceeding the jurisdiction of this honourable court
     
   • (iii) Interest on all judgement components and as awarded by the court limited to jurisdiction of the honourable court
     
   • (iv) Alternatively special and/or general damages and costs not exceeding the jurisdiction of this honourable court
     
   • (v) Such further and/o0r other reliefs
     
2. The Defendant filed the notice of intention to defend on the 7th March 2011 and the statement of defence on the 3rd June 2011.
   
3. On the 3rd June 2011 the Plaintiff filed an inter parte notice of motion seeking the following orders;
   
   1. That the defendant deposit into the custody of the honourable court the items listed in the schedule to this notice of motion until further orders of this court.
      
   2. That alternatively the defendant whether by herself her servants agents or employees be restrained and prohibited from transferring, selling, dealing with or otherwise disposing of or alienating that items listed in the schedule to this motion till further orders of this court.
      
   100. That the defendant do submit herself for handwriting analysis to determine whether she authored an agreement to repay $ 46,628.93 plus interest to the Plaintiff and provide original handwritten specimen documents for expert analysis.
        
   4. That Messrs Iqbal Khan & Associates withdraw and cease acting for the defendant on the grounds that the Plaintiff and the Defendant has both attended at the chambers of Messrs Iqbal Khan & Associates to seek legal advice on the monies owing by the defendant to the plaintiff.
      
   5. That summary judgement be entered against the defendant.
      
   6. That the cost of tis application be costs in the cause.
      
   7. Such further and other orders.
      
4. The Defendant sought time to respond to the notice of motion on 7 instances since 13th July 2011. However up to date no response was filed by the Defendant in reply to the notice of motion filed by the plaintiff. Although the defendant was given ample time to respond to this application no interest was shown by the defendant or by the solicitors for the defendant to oppose this application.
   
5. In any event I have considered the affidavit filed by the plaintiff along with the notice of motion and the written submissions filed by the plaintiff, as a variety of orders are sought in the notice of motion. Also I have considered the facts stated in the statement of defence in the interest of justice.
   
6. Basically the plaintiff claims that he advanced the amount he has claimed in this case in different occasions to the defendant for her to set up an internet café. The plaintiff claims that the items in the schedule to the notice of motion were purchased with the money given to the defendant. Further the plaintiff has stated that those items are the only assets of the defendant, known to the plaintiff. Thus the plaintiff seeks relief (a) or in the alternative an interim injunction as prayed for in relief (b) of the notice of motion.
   
7. The plaintiff has submitted a long list of items which he claims to have been purchased with the money given by him. Further it appears that that the defendant is running a business with those items. However according to the statement of defence, the defendant has stated that the said business belongs to a third person. In any event it appears that a lot of prejudice can be caused to the said business if the items in the schedule are ordered to be deposited into the custody of the court. However the defendant did not respond to this application and submitted to court of any prejudice that can be caused if an interim injunction is issued restraining the defendant or her servants, agents or employees from transferring, selling, disposing or alienating those items in the schedule. Thus having considered the facts submitted by the plaintiff I decide to issues an interim injunction to restrain the defendant, her servants, agents or employees from transferring, selling, disposing or alienating the said items.
   
8. Secondly the plaintiff seeks that an order be made for the defendant to submit herself for handwriting analysis and to provide specimen of handwriting to determine the author of the document marked and tendered as "ANK5". I have perused the said document. It is a handwritten document without a signature or a date. I have a doubt about the evidential value of the said document as a proof of an agreement. However there was no objection filed by the defendant for this application. Hence no prejudice could be caused to the defendant if this application is allowed.
   
9. Thirdly the plaintiff has sought an order for the solicitors of the defendant to cease acting for the defendant. I have carefully considered this application. It appears that the plaintiff and the defendant have gone to the law office of Messrs Iqbal Kahan and Associates. Yet there is no clear evidence that a counsel or a solicitor was consulted by the plaintiff. The plaintiff claims that he disclosed information such as the nature of his relationship with the defendant, the monies lent to the defendant, why he lent the monies without getting anything in writing and related matters to a clerk at the solicitor's office. Further he refers to the judgement of RC Manubhai V Herbert Construction Company Ltd [2009] FJHC 219 to bolster his contention. However on the material placed before this court it is not clear whether the particular solicitor has acted for the plaintiff or it was a mere meeting with some clerks at the solicitor's office. In absence of clear and strong material placed before this court to ascertain this issue, I am of the view that the order sought by the plaintiff in this regard cannot be issued. However the plaintiff or the solicitor of the plaintiff has the right to complain to the Chief registrar regarding any alleged professional misconduct or unsatisfactory professional conduct by any practitioner or law firm, or any employee or agent of any practitioner or any law firm pursuant to section 99 of the Legal Practitioners Decree.
   
10. Finally the plaintiff has sought that a summary judgement be entered against the defendant. Order 14 of the High Court Rules provides for summary judgements to be made by the High Court. However in view of the judgement in Chand v Carpenters Fiji Ltd [1995[ FJHC 193, it appears that the Magistrate's Court does not have jurisdiction to make summary judgements. Thus I refuse to grant a summary judgement against the defendant.
    
11. In the circumstances I issue the following orders against the defendant;
    
    1. That the defendant whether by herself, her servants, her agents or employees are restrained and prohibited from transferring, selling, disposing or alienating the items listed in the schedule to the motion till further orders of this court.
       
    2. That the defendant shall submit herself for handwriting analysis to determine whether she authored an agreement to repay $ 46,628.93 plus interest to the plaintiff and shall provide original hand writing specimen documents for expert analysis which is to be arranged by and at the cost of the Plaintiff.
       
    3. No orders as to costs.
       

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

11.07.2012