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Finance Pacific Corporation Ltd v Ali [2013] FJMC 96; Civil Action 320.2011 (26 February 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
CENTRAL DIVISION
REPUBLIC OF FIJI ISLANDS
CIVIL JURISDICTION

Civil Action No. 320 of 2011

Finance Pacific Corporation Limited
Plaintiff

.v.

Faud Anwar Ali
Defendant

For Plaintiff : Ms. Pritika (Reddy & Nadan)
For Defendant : Mr. Samad (Samad Law)

Judgment

Introduction

In this matter the Plaintiff has filed a Writ seeking judgment in the sum of $17,824.03, interest on the judgment sum at the rate of 40% pursuant to the promissory notes from the date of execution of promissory notes to the date of full payment, costs of the action and such further and/or other relief as the court may deem just.

The Defendant has filed a Statement of Defence and the Plaintiffs filed a reply to the Statement of Defence.

The case was heard on 25th October 2012. Parties were given time to make submissions. This Court has considered the submissions that were made.

The Plaintiffs Case

The Plaintiffs called one witness, Edwin Sharma, Manager Admin of the Plaintiff Company.

The evidence of Mr Sharma was that the defendant was a client of the Plaintiff Company, he had signed 3 different promissory notes with the Plaintiff company. The promissory note was executed by the Defendant and witnessed by a Legal Practitioner. The Defendant later defaulted on re-payments, calls were made and a demand notice was issued to the Defendant. Penalty interest of $50 per day applied for late payments and $75 for returned cheques.

The Defendant had a vehicle as security for the monies he loaned under the 2nd Promissory note from the Plaintiff Company. The vehicle was repossessed and sold. Tenders were called for and none were received. It was sold privately for $5000 and the sum was applied for the re-payment due by the Defendant.

The Defendants Case

The Defendant gave evidence. His evidence was that he took the loan and he had done some work for Mr Anand at his residence and was to be offset with his repayments. It was a verbal agreement. The 2nd loan was for the purchase of the car which was kept in the name of the Plaintiff Company.

Analysis

This Court has heard all the evidence in Court. It has further scrutinized the documents that were tendered in Court together with the submissions for the parties.

From the evidence in Court it was clear that the Defendant took loans from the Plaintiff Company and executed promissory notes for the loans he took. The Plaintiff Company has tendered various documents, the promissory notes which show the terms and conditions of the loan. The statement and the demand notices. They have also given Court a copy of the Tender placed in the daily newspaper together with correspondence with Reserve Bank of Fiji and Ministry of Finance as to its status.

The Defendant in his pleading and evidence stated that he did some work for Mr Anand for which an invoice was raised for the Plaintiff Company to be offset with the payment he was to make to the company. From the evidence this Court finds that the Defendant was well aware of the terms of the promissory note that he executed and when he took the commercial loan from the Plaintiff Company. He executed 3 promissory notes and he was fully conversant with his dealing with the Plaintiff Company.

This Court also notes that the Plaintiff Company gave two short-term (one month) and a year-long loan. The finance charges and terms were in the Defendant's knowledge when he executed the Promissory Note. The Defendant had agreed to the term, the interest rates and the charges for the default in payment. This Court has noted that Defendant defaulted and the Plaintiff Company has rightfully sought relief for the sum due. The Defendant did not pursue and produce any document as regards his offset claim. He has not tendered any documents in Court of his claim and neither was the matter counter claimed. In any event the Plaintiff Company stated in their reply to defence that the Plaintiff undertakes to pay if proper invoices are raised.

This Court is satisfied on the balance of probabilities of the claim by the Plaintiff Company. The Plaintiff Company succeeds with its claim. This Court finds that the Interest rate claimed by the Plaintiff is "40% pursuant to the promissory notes from the date of execution of Promissory Notes to the date of Full payment." The rate is not specifically stated in any promissory note to be 40%. This Court feels that the justified interest that the Plaintiff should be entitled to be 10.5%.

This Court Orders as follows:

(a) Defendant pays the Plaintiff a sum of $17,824.03.

(b) Interest at the rate of 10.5% from date of default until judgment sum is paid in full.

28 days to appeal.

Chaitanya Lakshman
Resident Magistrate

26th February 2013