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HP Kasabia Brothers Ltd v Khan [2000] FJHC 64; Hbc0460d.99s (8 May 2000)

Fiji Islands - HP Kasabia Brothers Ltd v Khan - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CIVIL ACTION NO: HBC 460 OF 1999

BETWEEN:

H P KASABIA BROTHERS LTD.

Plaintiff

AND:

: 1">

SHAMEEMA KHAN

t/a G KAY CONSTRUCTIONS

1st Defendant

G KAY CONSTRUCTIONS LTD.

2nd Defendant

SULTAN MOHAMMED KHAN aka

GEORGE KHAN & SHAMEEMA KHAN

3rd Defendant

Counsel: Mr G Keil for Plaintiff

:Mr R Patel for Defendanendants

:Ms V Narayan for Sheriff

:No appearance for Claimant

Hearing: 4th May 2000

Decision: 8th May 2000

DECISION

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This is a claim by Prime Image Civil (Eng) Contractors against a Terex 82-30 Bulldozer seized by the Sheriff of Fijir a warrant of execution ison issued in respect of the substantive judgment in this action.

The execution creditor and Plaintiff disputes this claim on the ground that the bulldozer which is purportedly a sec for loans made to the Defe Defendants by the Claimant in August 1999, was also a security in respect of a sub-contract made with the Defendants by China Huashi Ltd. in September of 1999.

Counsel for the Defendants had no submissions to make on this claim, saying that he was not aware of this purported agreement between the Defendants and the Claimant.

In an earlier judgment I delivered in respect of a claim madehina Huashi Enterprises Ltd., dated 20th March 2000, I found that there was no valid and bind binding agreement between the Defendants and the Claimant giving rise to an equitable lien over two other items, namely a Vibrating Roller and a Road Roller.

I note that the Terex Bulldozer which is the subject of this claim, does not featurell versions of the China Huashi sub-contract. However, if i if it is accepted that the sub-contract annexed to the affidavit of Sanjlesh Lal dated 5th January 2000, filed by Defendants, is the version that the Defendants say is genuine, then the Terex Bulldozer was intended to be mortgaged to China Huashi in September 1999.

That a month earlier, the Defendants purported to mortgage the same bulldozer to Prime Image Contractors, speaks volumes about the Defendants’ intentions in respect of the August 23rd 1999 agreement with Prime Image.

Furthermore, the August 23rd agreement (Annexure 3 to the affidavit of Dinesh Bhala sworn on 5th April 2000) is sparse and uninfove about the nature of the the “security” offered. I have grave doubts as to whether this “agreement” was ever intended to be enforced by the parties. The Defendants’ action, in then promising the same bulldozer as security to China Huashi a month later, confirms those doubts.

The Claimant’s claim is dismissed. The Claimant must pay to the Sheriff, Defendants and the Plaintiff, to be taxed if not agreed, from the date of e of the notice of claim.

Nazhat Shameem

JUDGE

8th May 2000

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Hbc0460d.99s

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