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Eastwind Pty Ltd v Khan [2002] FJHC 219; HBC0054D.2001B (2 August 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0054 OF 2001

Between:

EASTWIND PTY LIMITED
Plaintiff

and

AIYUB KHAN
f/n Murtza Khan
T/A A. KHAN HIRE SERVICES
Defendant

Mr. G.P. Lala for the plaintiff
Mr. H. Robinson for the defendant

DECISION

By motion dated 16 November 2001 the defendant has applied to Court for an Order that default judgment entered herein on 25 October 2001 be set aside upon the grounds set out in the affidavit of the defendant filed in support.

The defendant says that he was served with the Writ herein on 17 October 2001 and judgment in default was obtained by the plaintiff on 25 October, that is eight days after service of the writ. He said that the Court file says the writ was served on him on 4 October 2001 and this is not correct.

In reply to the defendant=s allegations the process server Karan Singh and one Vineet Raj a carrier operator refuted the defendant=s assertions. They say that service was effected on 4 October.

I also have before me the affidavit of Azam Ali, the managing director of the plaintiff company. He deposed, inter alia, that the defendant owes the plaintiff the sum claimed for fuel supplied to him. The defendant even made partial payments in the sum of $13,000.00. His two cheques of $5,000.00 each were dishonoured by the Bank on presentation. He says that the defendant has no merits in his defence and this application is merely a delaying tactic preventing the plaintiff from rightfully recovering money due and owing by the defendant.

At one stage while this application was pending Fatiaki J suggested he pay into Court the sum of $10,000.00 into Court before judgment herein is set aside. This the defendant was unable to do.

On the affidavit evidence before me, I prefer to accept the evidence of Karam Singh corroborated by Vineet Raj that the Writ of Summons was served on 4 October 2001 to that of the defendant and his-step mother. The defendant and his step-mother must have been mistaken as to the date of service. No reason has been advanced as to why the process server should lie. He has nothing to gain thereby.

There is no doubt on the evidence before me that there was considerable dealing in the supply of fuel between the parties and part payments have been made.

On this application to set aside the default judgment, in the interest of justice and to test the bona fides of the defendant, the proper course would be to grant the application on terms.

It is therefore ordered that the default judgment be set aside conditionally upon the defendant depositing into Court the sum of $12,000.00 (twelve thousand dollars) within 21 days from the date of this judgment (2 August 2002) together with costs to the plaintiff in the sum of $200.00 failing which the default judgment will remain intact.

D. Pathik
Judge

At Suva
2 August 2002