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Sabharwal v Kumar [2011] FJHC 122; HBC122.2004 (1 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 122 of 2004

BETWEEN:

ANIL KUMAR SABHARWAL (son of Brij Raj Sabharwal) of Tukani Street, Lautoka, Accountant and Tax Agent.
Plaintiff

AND:

VINAY KUMAR (father's name Gaya Prasad) of Enamanu Rd, Wailoaloa, Nadi, Cultivator and DHIRENDRA KUMAR (father's name Gaya Prasad) of USA as Executors and Trustees of the Estate of Ram Dulari also known as Ram Dulari Prasad (f/n Mohan Singh) and in Propria Personam, ARUN KUMAR (father's name Gaya Prasad) of Wailoaloa, Nadi, Fiji and DINESH KUMAR (f/n Gaya Prasad) of North America.
Defendants

Date of trial; 2nd August 2010.

Appearances; For Plaintiff; Dr. M.S.Sahu Khan
For Defendants; Ms. Mary Muir for M.K. Sahu Khan & Co.

Date of Judgment; 1st March 2011.

JUDGMENT

1. The Plaintiff filed this action on 10th May 2004 seeking;
   

(a)Special damages in $40,000/- .

(b) General damages including interest of 10% from 1st day of January, 2004 until the date of judgment.

(c) For an Order that out of the Purchase price in respect of the sale of the said property the sum of $40,000/- be retained in the Trust Account of the Solicitors of the Defendant acting for them in respect of the said sale of the property or deposited in Court until further Order of the Court.

(d) for such further or other relief as to this Honourable Court seems just.

(e) Costs on Indemnity basis.

2. The Plaintiffs case according to his statement of claim is that he was appointed as the exclusive agent to sell a property by the Defendants on or about 21st December 2002, and that the Defendants Agreed to pay a commission of $40,000/-. It is the Plaintiffs position that he was appointed on an exclusive basis and "that it was agreed that during the existence of the agency agreement if the property was sold through anyone the Plaintiff will still be paid the agreed Commission of $40,000/-" as set out in paragraph 6 of his statement of claim.
   
3. The Plaintiff has filed this action before the said property was sold. The Plaintiff states at paragraph 8 of his statement of claim that; "the Defendants have agreed to sell the said property to a purchaser in or about October 2003 but the dealing has not been completed although the consent of the Director of Lands has been obtained".
   
4. At the trial the Plaintiff led the evidence of one MUKESH CHAND and closed his case leading in evidence the "Agreed Bundle of Documents" marking them P1 to P15. Due to P2 and P3 being faded photocopies the originals were marked as P2(a) and P3(a) respectively. The said Agreed Bundle of Documents is signed by the Plaintiffs Solicitor.
   
5. The Plaintiff did not give evidence in this case though he asserted in his statement of claim that he is a Tax and real estate agent and "did his utmost and incurred substantial costs and expenses in finding a purchaser" and as such seeking a commission due to him on the sale of a property. (paragraph 7 of the statement of claim).
   
6. The 1st named 1st Defendant and the subsequent purchaser of the property one M. DENNIS gave evidence for the defence.
   

PLAINTIFFS CLAIM FOR SPECIAL DAMAGES;

7. Though the Plaintiff is seeking Special damages there was no evidence led of any Special damages. Special damages are the expense etc., that the Plaintiff may have had to incur as a consequence of the defendants alleged breach or the expenses incurred in performing his part of the contract. However no account or particulars of such was led in evidence by the Plaintiff. No expenses were even itemized. As such at the very outset this Court is compelled to decline the Plaintiffs claim for Special damages in $40,000/-.
   

WHETHER PLAINTIFF IS ENTITLED TO CLAIM COMMISSION UNDER THE AGREEMENTS;

8. The agreement referred to in the statement of claim as having been entered in to on or about 21st December 2002 was marked as P2 [ original marked as P2(a)].
   
9. However the Plaintiff marked as P3 [ original marked as P3(a)], another agreement dated 26th March 2003. This document though part of the "Agreed Bundle of Documents" this Court found that the said "Agreed Bundle of Documents" IS SIGNED ONLY BY THE Plaintiffs Solicitor. P3(a) was marked in evidence by the Plaintiff and the Plaintiff at least is bound by it. The Plaintiff has also signed P3(a).
   
10. P3(a) is another agreement between the same parties appointing the Plaintiff as the exclusive real estate agent for the sale of the same property being Crown lease number 7705, after the agreement in P2(a). Therefore there is a "novation" of the 1st agreement of 21st December 2002 [P2(A)], by the subsequent agreement on 26th March 2003 [P3(a)].
    
11. As such it is not possible for the Plaintiff to sue on the previous extinguished agreement P2(a) which is the agreement the Plaintiff has pleaded in his statement of claim.
    
12. The subsequent agreement P3(a) states thus at the last paragraph; "This is an exclusive right for you to sell this property to one of your buyer clients. The property if could be sold on or before 06/12/2003". It is clear that the second agreement [P3(a)] has to be performed by the Plaintiff on or before the 06/12/2003. The Plaintiff will be entitled to a commission only if the property is sold before the 06/12/2003.
    
13. The Plaintiff does not disclose in his statement of claim the buyer with whom the Defendants are supposed to have come to an agreement to sell the property in October 2003.
    
14. The Plaintiff filed this action and his statement of claim in 2004 AND THE PROPERTY HAD BEEN SOLD AND REGISTERED IN 2005 according to the extract from the Registrar of titles attached to P7.
    
15. As the property had not been sold on or before 06/12/2003 even according to P3(a) the Plaintiff is not entitled to the Commission.
    
16. There is no evidence that the Plaintiff has personally taken any trouble to sell the particular property. It is MUKESH CHAND the Plaintiffs only witness who is said to have taken Mr. Dennis the buyer to see the property. However Mr. DENNIS IN HIS EVIDENCE VEHEMENTLY DENIED THAT.
    
17. The Plaintiff sues in his personal capacity and not together with MUKESH CHAND as an associate or partner as suggested by MUKESH CHAND IN HIS EVIDENCE!
    
18. THEREFORE there is no cause of action disclosed by the Plaintiff, and as such no need to consider the extensive written submissions on the other defenses as this Court is bound to dismiss the Plaintiffs action.
    

ORDERS ON JUDGMENT;

1. Plaintiff's action dismissed.
   
2. Parties to bear their costs.
   

Hon. Justice Yohan Fernando.
PUISNE JUDGE.

High Court of Fiji
At Lautoka
1st March 2011.