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Lodhias Travel Services Ltd v Samut [2001] FJHC 149; Hbc0089d.2000 (20 November 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 89 OF 2000S

Between:

LODHIAS TRAVEL SERVICES LIMITED
Plaintiff

and

ZAINUL INTIAZ BEGUM SAMUT
1st Defendant

and

MOHAMMED RAFIQUE
2nd Defendant

and

HUSSEIN SAKOOR SAMUT
3rd Defendant

D. Prasad for the Plaintiff
I.A.A. Khan for the 1st and 3rd Defendants
No appearance by the 2nd Defendant

DECISION

By writ and Statement of Claim filed on 13 March 2000 the Plaintiff says that in November 1997 the Plaintiff and the first Defendant entered into a written agreement by which the Plaintiff agreed to supply airline tickets to the first Defendant on credit. Payment for the tickets supplied was guaranteed by the second Defendant. The Plaintiff seeks to recover $50,939.15 which is said to represent the value of tickets supplied by the Plaintiff to the first Defendant but for which payment was not made.

As against the third Defendant the Plaintiff’s case is that when the first Defendant defaulted the third Defendant agreed to pay the amount owed by installments but failed to do so.

On 7 June 2000 the first and third Defendants filed their Defence. Both Defendants deny owing the Plaintiff anything. Although the agreement and the supply of the tickets is admitted the third Defendant suggests that he was not a party to any agreement and that any offer made by him to repay the first Defendant’s debt was merely gratuitous. Both Defendants also claimed in paragraph 8 of the Defence that even if anything was owed by them then the debt was extinguished by the Plaintiff’s acceptance of the transfer to it of a motor vehicle CR 403 previously owned by the third Defendant in full and final settlement.

The second Defendant has never appeared and Judgment in Default of notice of intention to defend was entered against him on 1 September 2000.

On 2 August 2000 the Plaintiff’s present summons seeking summary Judgment under RHC O 14 was filed. Both counsel filed written submissions:

(i) Plaintiff, in support 1 December 2000;
(ii) First and third Defendants, in answer, 3 January 2001;
(iii) Plaintiff, in reply, 15 February 2001.

The following affidavits were also filed:

(i) Vijay Banabhai, in support, 2 August 2000;
(ii) First Defendant, 6 October 2000;
(iii) Second Defendant, 6 October 2000;
(iv) Vijay Banabhai, 26 October 2000.

In paragraph 2.6 of his written submission Mr. Khan suggested that the Plaintiff had no cause of action against the third Defendant first, because he was not a party to the original agreement and secondly because there was no consideration for his offer to the Plaintiff to repay the sum owed by the first Defendant by instalments (see letter dated 28 October 1998 following Exhibit E to the first affidavit).

In paragraph 2.3 of his written submission Mr. Khan relied on the transfer of the vehicle CR 403 to the Plaintiff to extinguish any debt which might be owing.

It is a pity that further and better particulars of paragraph 8 of the Statement of Defence was not sought. While I agree that the pleading is vague (not date, no agreement, no value) it is not self evidently spurious and I do not think I should dismiss it out of hand.

The third Defendant’s argument appears to overlook the principle that an agreement by a creditor to forebear from suing a debtor reached at the request of a third party will constitute good consideration. This agreement is a fresh agreement and therefore the fact that the third party was not a party to the original agreement is not relevant. (see Oliver v. Davis [1949] 2 KB 727).

On the face of it the Defendants do not appear to have an especially strong defence. The first Defendant’s mere denial does not “condescend upon particulars” but the set off appears to be arguable for whatever its value may be.

In all the circumstances the application fails and the first and third Defendants will be granted unconditional leave to defend.

M.D. Scott
Judge

20 November 2001