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Prasad v Singh [2005] FJHC 543; HBC0151.2005 (29 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0151 OF 2005

BETWEEN:

RAMEND PRASAD
PLAINTIFF

AND:

SATYA PRAKASH SINGH
DEFENDANT

Counsel for the Plaintiff: Messrs. Sahu Khan & Sahu Khan for the Plaintiff
Counsel for the Defendant: Messrs. Mishra Prakash & Associates for the Defendant

Date of Hearing: 29 July 2005
Date for Submission: 26 August 2005
Date of Ruling: 29 September 2005

INTERLOCUTORY RULING OF FINNIGAN J

This is an application for an order in the nature of interlocutory mandatory injunction.

The plaintiff has commenced by Writ an action claiming that he was fraudulently induced to sell a commercial building for $80,000 when he says the price agreed was $180,000. He seeks contractual remedies for rectification or rescission or transfer of the property back to himself or payment of the full claimed purchase price.

In the statement of claim and in an interlocutory motion filed on 24 June 2005 he seeks an order that rents which the defendant is now collecting from the property be paid into Court pending determination of the action.

The defendant by Affidavit states he borrowed $60,000 from Westpac Bank to make up the $80,000 purchase price and that he is committed to repayments of $744 per month. He says that for these repayments he relies on the rentals.

Both parties have filed detailed affidavits and counsel for both parties have filed excellent submissions in support, in reply and in answer. The case for this interlocutory application has been well presented by counsel for both parties.

In the environment of the back log which is occurred recently I shall state my reasons only briefly without intending any discourtesy to counsel. It is their submissions which make that possible.

Among the authorities relied on by both counsel they both (as they must) rely on American Cyanamid Co. v Ethicon Ltd. [1975] UKHL 1; [1975] 1 All ER 504. Is there a serious issue to be tried, will damages be an adequate remedy if this application is refused, and if damages might not be adequate then what is the balance of convenience.

The other authorities cited by counsel take nothing away from these fundamental guidelines.

Clearly there are serious issues between the parties. Will damages be an adequate remedy for the plaintiff? Undoubtedly so in my opinion. These guidelines are against granting the application. If I were to consider the balance of convenience I would hold that it is better to allow the defendant to continue making the loan repayments and thus avoid penalties. To take away the source of his repayments now gives to the plaintiff nothing which he cannot obtain as damages but takes away from the defendant something he may not regain if he wins judgment in the action.

I therefore refuse this interlocutory application. The parties should proceed with trial preparations. If they are ready to seek a hearing date before 25 November 2005 one can apply for a listing in the call-over on that day.

I grant costs to the defendant and assess them summarily at $400.

D.D. Finnigan
JUDGE

At Lautoka
29 September 2005