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Sharma v Kumar [2005] FJHC 332; HBC0248.2005L (28 October 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0248 OF 2005L

BETWEEN:

KESHWA PRASAD SHARMA
f/n Sat Narain
Plaintiff

AND:

VINOD KUMAR
f/n Munsamy
1st Defendant

AND:

RAMANJALU NAICKER
2nd Defendant

Ms. N. Khan with Mr. A. Patel for the plaintiff
Defendants in Person

Date of Hearing: 28 October 2005
Date of Ruling: 28 October 2005

EXTEMPORE RULING

This matter comes before the Court initially by way of Ex-parte Notice of Motion which resulted in orders being made by Mr. Justice Winter on the 1^st September 2005. The first of those orders was an injunction and the second was an order that the distress for rent is forthwith lifted. The remaining orders dealt with the further conduct of the proceedings and resulted in the proceedings coming before the Court today.

The plaintiff in support of the orders sought relies upon an affidavit filed and sworn on the 1^st September 2005 and a further affidavit sworn on the 8^th September 2005.

The first defendant appears today in person and opposes the orders sought and relies upon an affidavit sworn on the 6^th September 2005. It is clear from the material contained in the affidavit and the submissions made to the Court that the notice for distress of rent dated the 29^th August 2005 claimed arrears of rent in an amount greater than may have been owing and claimed solicitor’s costs, bailiff costs and security costs not in accordance with the Act. The notice was indeed quite irregular. Notwithstanding this it would appear from the evidence that the plaintiff tendered to the defendant the rent which was initially rejected and ultimately accepted.

The issues in dispute is that the plaintiff contends that notwithstanding the rental agreement entered into by the parties that there was a subsequent agreement whereby the rent for the premises would be $1,100.00 per month until such time as the premises were completed and capable for occupation both as a residence and as a business.

The defendant says that the rent in the sum of $1,800.00 was payable from the commencement of the tenancy notwithstanding that the commercial premises were incomplete and certainly had no legal electricity installation. The electricity installation was ultimately to be effected based upon the payment of $600.00 being made by the defendants and $1,200.00 being advanced by the plaintiff. This agreement is acknowledged in an irrevocable authority of the 15^th March 2005 (Annexure “KBS-4” to the plaintiff’s affidavit).

It is impossible to resolve the issues in dispute solely on affidavits however I do find it somewhat inconceivable that the plaintiff would have agreed to pay a rent at the full rate when the premises were incomplete and certainly would have required or did required by virtue of the irrevocable authority credit for the sum of $1,200.00 which credit was not given in the notice of distress that was levied.

The plaintiff also says that further monies were advanced to facilitate to the construction of gates and this is confirmed by an affidavit, on which the plaintiff relies, sworn by Lalesh Rovin Singh on the 1^st September 2005. This amounts to $1,600.00 a sum again for which credit has not being given in the notice of distress served upon the plaintiff.

As I have said, it is impossible to resolve all issues solely on the affidavits. It would seem to me that to progress the matter, it is appropriate, the distress already having been lifted, for a continuation of the injunctive relief in some form until such time as the premises are complete and the plaintiff commences paying rent at the rate of $1,800.00. Any issue as to the correct date upon which the sum of $1,800.00 is in fact payable can be resolved on the hearing of the writ of summons in due course and accordingly I grant an injunction restraining the defendants and/or their servants and/or agents or solicitors from levying the distress of rent and from interfering with the possession and occupation of the plaintiff of the premises.

I adjourn the proceedings for mention on the 20 January 2006.

The injunctive order that I made is to continue until 4.00pm on that date.

JOHN CONNORS
JUDGE

At Lautoka
28 October 2005