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National Bank of Fiji v Sher [2004] FJHC 371; HBC0154.1999L (16 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0154 OF 1999

BETWEEN:

NATIONAL BANK OF FIJI
1st Plaintiff

AND:

KESHNI DEVI GOUNDAR
2nd Plaintiff

AND:

ALI SHER
trading as Genuine Spares, Main Street, Nadi
Defendant

Counsel for the Plaintiffs: Mr. Suresh Verma
Counsel for the Defendant: Mr. F. Koya

Date of Hearing & Judgment: 16 February 2004

EXTEMPORE JUDGMENT

This application comes before the court by way of Notice of Motion wherein the plaintiffs seek orders that the money deposited in court being the sum of Twenty Thousand Dollars ($21,000.00) be released to the plaintiffs, as to the sum of Seventeen Thousand Dollars ($17,000.00) to the 1^st Plaintiff and as to the sum of Four Thousand Dollars ($4,000.00) to the plaintiff’s solicitors.

The action commenced on 20 July 1999 on the filing of the writ of summons and subsequently default judgment was entered and that judgment was set aside upon the basis that the sum of Twenty Thousand Dollars ($21,000.00) was paid into court. It is those monies that are the subject of the present application.

A summons to enter the action for trial was filed on 19 July 2002, a pre-trial conference having been held prior to that time and the minutes having been dated the 5^th December 2001. It would appear from a perusal of the file that the filing of the present motion in August 2003 appears to have stalled the substantive matter being listed or called up for hearing.

If I were to grant the orders as sought by the plaintiffs, then clearly the funds deposited with the court would all be released leaving no money in court, dependent upon the outcome of the substantive action. It is argued on behalf of the plaintiffs that the defence is a mere denial apart from a counterclaim in the sum of Two Thousand Dollars ($2,000.00) and that the sum of Two Thousand Dollars ($2,000.00) could remain in court.

Whilst I acknowledge that the monies have been in court for a significant period of time, the matter having been commenced in 1999 has been awaiting a trial date for a significant period of time. I am not satisfied that the orders sought in the Notice of Motion should be granted at this time. I am concerned that to grant the orders sought would see the fund that was provided before judgement being set aside dissipated.

I do however think it appropriate that the substantive matter be listed for hearing as soon as possible and accordingly I propose that the matter be listed before the Deputy Registrar at an early date.

The Orders that I make therefore are: -

1. Application is dismissed;
   
2. the plaintiffs to pay the defendant’s cost of the motion;
   
3. The summons to enter action for trial be listed before the Deputy Registrar on the first available date.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
16 FEBRUARY 2004