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Prasad v Registrar of Titles Office [2003] FJHC 273; HBC0196d.2002s (15 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0196 OF 2002

Between:

JAI CHAND PRASAD
f/n Lachmi as Executor and Trustee of the Estate of
Ramrajee f/n Hargovind, deceased.
Plaintiff

and

REGISTRAR OF TITLES OFFICE
First Defendant

and

ARUN CHAND and AMI CHAND
both sons of Lachmi Dutt f/n Mahesh Dutt
as Executors and Trustees of the Estate of
Lachmi Dutt, deceased.
Second and Third Defendants

Mr. G. P. Lala for the Plaintiff
Ms. N. Karan for the 1st Defendant
Mr. R.P. Singh for the 2nd and 3rd Defendants

DECISION

This is the plaintiff’s motion in this action seeking the following orders:

(a) That the abovenamed First, Second and Third Defendants their servants and/or agents or whosoever be restrained to deal in any manner whatsoever and/or to sell and/or dispose property described in Certificate Title No: 17682 being Lot 1 DP 4617, Certificate of Title No: 17772 being Lot 6 DP 4617 and Certificate of Title No: 17682 being Lot 1 DP 4617, till Judgment sum of $177,744.00 plus costs of $2,000.00 is paid in full to the Plaintiff pursuant to High Court Action No. 260 of 2000S.

The defendants want the dissolution of the interim injunction which was granted herein.

Background facts

On 18 May 2002 the plaintiff issued a Writ of Summons against the defendants claiming the orders as stated in the motion referred to hereabove.

Although the plaintiff applied to Court on 25 March 2002 seeking extension of the caveats herein, the first defendant by letter dated 8 April 2002 informed the plaintiff’s solicitors that the caveats had already been cancelled ‘after the lapse of time given’.

The plaintiff fears that ‘the chances are that the property may be transferred to the beneficiaries and sold or disposed off since the caveats have been removed’.

At the time of this application the plaintiff wanted the extension until the final determination and hearing of High Court Civil Action No. 260 of 2000.

Counsel for the plaintiff submits that

‘the damages that was awarded (in C.A. 260/2000) to the plaintiff may not be paid should the property be transferred and/or sold or disposed off as the said property is the only asset in the estate of Lachmi Dutt and its transfer would result in the plaintiff not being able to claim anything else thus defeating the plaintiff’s legitimate claim regarding damages’.

Therefore the plaintiff is praying for relief as in the motion.

An affidavit in support by the plaintiff and affidavits in Reply by the defendants have been filed.

On 23 July 2002 an interim injunction was granted against the defendants and at the same time the plaintiff was ordered to file an Amended inter partes notice of motion and affidavit and the defendants to file and serve reply within 7 days. The orders were complied with.

There was an award of damages by Byrne J in Civil Action No. 260/2000S on 22 July 2002 in the sum of $177,744.00 plus costs $2,000.00. It is believed that the plaintiff had instituted High Court Civil Action No. 491/02 against the Estate of Lachmi Dutt seeking orders for the sale of said Certificates of Title in satisfaction of the said judgment. Counsel for the defendant states that this action was heard on 12 June 2003 by Honourable Justice Singh and judgment is awaited.

Consideration of the motion

The plaintiff has a judgment in his favour in C.A. 260/2000 against the defendants and that has not been satisfied. To protect his interest the plaintiff has issued the present proceedings and has been granted an interim injunction restraining the defendants from dealing with the properties in question in any way whatsoever.

The defendants ask for dissolution of the interim injunction.

It is the plaintiff’s submission that the property in question was not transferred properly and in accordance with law into the name of the second and third defendants. Also, the fact the transfer has not been registered, the properties in question remain ‘as the Estate of Lachmi Dutt’ and as such the plaintiff as executor and trustee of the Estate of Ramrajee makes this application to this Court.

It is the defendants’ submission that an injunction should not be granted as prayed as the plaintiff already has a judgment of a monetary sum in his favour and he should execute that judgment in the normal way. If injunction is granted the plaintiff may not execute the judgment and the defendant would be restrained from dealing with the lands in question.

Mr. Singh submits that the motion should be dismissed with costs.

Conclusion

It is quite evident that the judgment which was obtained by the plaintiff against the deceased has not been satisfied. Now that the defendants have come in the shoes of the deceased after his death as executors and trustees of the estate of their father, the plaintiff does not want to lose the opportunity of having the judgment satisfied through the assets in the estate and he wants to prevent the real properties being sold until the satisfaction of the said judgment and with that in mind he has instituted the said action No. 491/02 in which judgment is awaited.

The issue in this case and in 491/02 are so much inter-twined vis-à-vis the judgment in C.A. 260/2000 that it would be in the interest of all parties that they await the judgment in C.A. 491/02. For these reasons it is ordered that the interim injunction granted herein to continue until further order of this Court. The parties are at liberty to apply generally. Each party to bear his own costs.

D. Pathik
Judge

At Suva
15 July 2003