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Bhan v Ram [2012] FJHC 1256; HBC79.2012 (6 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 79 of 2012

IN THE MATTER of Part XXIV of the Land Transfer Act Cap. 131

BETWEEN:

CHANDAR BHAN of 814 SW Langston Road, Renton, WA 98057 in the United States of America, Businessman.
PLAINTIFF

AND:

SINDHU MATI RAM and MANI RAM both of Nakaulevu, Navua.
DEFENDANTS

BEFORE: Master Deepthi Amaratunga

COUNSEL: Ms. Rakai M. L. for the Plaintiff
Mr. S. Chandra for the Defendant

Date of Hearing: 9^th July, 2012
Date of Ruling: 6^th August, 2012

DECISION

A. INTRODUCTION

1. The Plaintiff filed this action for eviction in terms of the Section 169 of the Land Transfer Act. The Plaintiff and Defendant entered in to a sale and purchase agreement in respect of the premises in 2005, for a consideration of $21,000. The Defendant was granted possession of land in issue upon entering in to sale and purchase agreement. The Defendant was issued with a notice to pay the consideration in terms of the clause 4 of the said agreement and the Defendant failed to pay and the sale and purchase agreement was accordingly terminated. No right to possession in terms of the said sale and purchase agreement as the Defendant had defaulted the payment of consideration with in the stipulated time.
   

B. FACTS

2. The Plaintiff and the Defendant entered into a sale and purchase agreement on 23rd October, 2005 for the sale of the land described therein as 'land contained in Certificate of Title Register Volume No 41 Folio 4053 being Block 2 Deuba (part of ) 'The said sale and purchase agreement contained conditions inter alia as follow
   

'2. The said consideration sum of $21,000 shall be paid and satisfied by the Purchaser to the Vendor on the date of settlement.

.......

4. The date of settlement shall be within ninety (90) days from the date on which the necessary plan of subdivision is properly registered by the Registrar of Titles or such other date as may be mutually agreed in writing between the parties. Settlement shall at the Registrar of Titles Office, Suva. At settlement the Vendor will hand over a registrable Transfer of the said property in favour of the Purchaser and the Title document of the said property to the Purchaser in exchange for the balance, purchase price.

5. Vacant Possession of the property shall be given by the vendor and taken by the Purchaser on the date of the execution of this Agreement.

.........

17. The vendor shall immediately upon execution of this Agreement proceed at his own expense to prepare and register the necessary subdivision plans in order to properly transfer the said property to the Purchaser. The vendor shall be responsible for all necessary approvals in this regard and shall act reasonably quickly and efficiently in this regard.'

3. Further, the said agreement at paragraph 14 gave the Plaintiff the right to re- possession in default of the payment by the Defendant.
   

C. ANALYSIS

4. Section 172 of the Land Transfer Act states as follows
   

"If the person summoned appears he may show cause why he refuses to give possession of such land and, if he proves to the satisfaction of the judge a right to the possession of the land, the judge shall dismiss the summons with costs against the proprietor, mortgagee or lessor or he may make any order and impose any terms he may think fit;"

5. In the case of Morris Hedstrom Limited –v- Liaquat Ali CA No: 153/87, the Supreme Court said that:-
   

"Under Section 172 the person summonsed may show cause why he refused to give possession of the land if he proves to the satisfaction of the Judge a right to possession or can establish an arguable defence the application will be dismissed with costs in his favour. The Defendants must show on affidavit evidence some right to possession which would preclude the granting of an order for possession under Section 169 procedure. That is not to say that final or incontrovertible proof of a right to remain in possession must be adduced. What is required is that some tangible evidence establishing a right or supporting an arguable case for such a right must be adduced."

6. Parties admit the Plaintiff as the registered proprietor of the land in issue and the execution of the sale and purchase agreement on 23rd October 2005 between the parties and parties also admit that they are bound by the said clauses.
   
7. The Plaintiff state that sale and purchase agreement was terminated by notice dated 6th December, 2011, though the Defendant admit the receipt of that but state that he went and met the solicitors for the Plaintiff after the receipt of the said notice, and the solicitors had assured that the agreement would not be terminated.
   
8. The notice of termination of the sale and purchase agreement was informed to the Defendants through "Notice of Rescission" dated 6th December, 2011 annexed as 'D' to the affidavit in support of this application.
   
9. Before the said 'Notice of Rescission' was issued on 13th May, 2009 the solicitors for the Plaintiff gave notice in pursuant to clause 4 of the sale and purchase agreement to settle the balance of the agreed consideration and stated that failure to do so would result the sale and purchase agreement being terminated and money already paid being forfeited. The sale and purchase agreement contained provisions for forfeiter of paid sum of money as liquidated damages in clause 14(b).
   
10. The said notice granted the Defendant to pay the remaining balance of 20,200 to be paid within 90 days as stipulated in the clause 4 of the Sale and Purchase agreement. This indicate that the Defendant over the period of 4 years has only paid $800 and even after the said notice did not make any serious attempt to settle the remaining debt. The Defendant admit the non payment of balance consideration
    
11. The notice of recession on 6th December, 2011 stated inter alia as follows
    

'And whereas on 13th May, 2009 through the Vendor's Solicitors the Vendor sent you a Notice giving you 90 (ninety days) to pay $20,200 being the balance purchase price. And whereas the 90 (ninety days) has expired and you have failed to pay $20,200 being the balance purchase price.

Now therefore take notice that in accordance with Clause 14 of the said Sale and Purchase Agreement, the Vendor, Chandar Bhan hereby

1. Rescinds the said sale and Purchase Agreement and the deposit sum of $800 is herby forfeited as liquidated damages to the Vendor.
   
2. Give notice that it will sue for special and general damages.
   
3. Gives notice that it will resell the said property and any deficiency in the price which result for such resale will be recovered as liquidate damages.
   
4. Gives you notice to immediately vacate the property.'
   

12. The said notice is clear indication of the rescinding of the sale and purchase agreement and the Defendant has not taken any step to assert his rights to the property, if he has any. This indicates that the Defendant did accept the said termination of the sale and purchase agreement, without any protest as to the content. The Defendant state that he met the solicitors for the Plaintiff and they assured that the sale and purchase agreement was not terminated. This cannot be accepted as there is no evidence to substantiate the Defendant's allegation and the subsequent conduct of the parties indicate facts contrary to the said contention of the Defendant. The Plaintiff's solicitors have followed up with a notice to vacate date 27th January, 2012 and also filed this action on 15th March, 2012 after termination the sale and purchase agreement on 6th December, 2011
    
13. In the sale and purchase agreement at clause 14(f) the Defendant has consented to re-possession by the Plaintiff, of the land in issue upon the default of the payment.
    
14. The Plaintiff in terms of the clause 4 of the sale and purchase agreement has issued a notice to settle the balance consideration within 90 days of the said notice. The Defendant again conveniently deny the receipt of the said letter, but in the analysis of the evidence before me it cannot be accepted as this notice was clearly mentioned in the 'Notice of Rescission' dated 6th December, 2011 and if he did not receive the notice to settle the remaining sum, he would have objected to it and protested and some evidence of raising that issue with the Plaintiff should be available to me, and in the absence of such evidence I reject the allegation of the Defendant as regards to the non-receipt of the said notice to pay the balance sum.
    
15. The Plaintiff has issued the said notice in terms of the clause 4 of the sale and purchase agreement and the Defendant has failed to comply with the said notice and the sale and purchase agreement was terminated.
    
16. The Defendant has failed to pay the remaining balance of the consideration agreed between the parties within the stipulated time of 90 days from the said notice and the Plaintiff has terminated the sale and purchase agreement in terms of the said agreement.
    
17. The sale and purchase agreement clearly excludes any rights accrued to the Defendant though it granted the Defendant possession upon the signing of the said agreement. The freedom of contracting parties are paramount in a case like this where the parties are relying on the said conditions.
    
18. The sale and purchase agreement in clause 14 (f) specifically grants the Plaintiff to repossess in default of payment in pursuant to clause 4 of the same agreement.
    
19. The Plaintiff has terminated the said agreement in default of payment of balance consideration of $20,200 and no attempt was made to settle even a part of it upon the receipt of the said notice to settle on 13th May, 2011.
    
20. In Prasad v Mohammed [2005] FJHC 124; HBC0272J.1999L (3 June 2005) Justice Gates (as his lordship then was) held in an application for eviction in terms of Section 169 of the Land Transfer Act and stated
    

'[13] In Fiji under the Torrens system of land registration, the register is everything: Subramani & Ano v Dharam Sheela & 3 Others [1982] 28 Fiji LR 82. Except in the case of fraud the title to land is that as registered with the Registrar of Titles under the Land Transfer Act [see sections 39, 40, 41, and 42]: Fels v Knowles [1906] NZGazLawRp 66; (1906) 26 NZLR 604; Assets Co Ltd v Mere Roihi [1905] UKLawRpAC 11; [1905] AC 176, PC. In Frazer v Walker [1967] AC 569 at p.580 Lord Wilberforce delivering the judgment of the Board said:

"It is to be noticed that each of these sections excepts the case of fraud, section 62 employing the words "except in case of fraud." And section 63 using the words "as against the person registered as proprietor of that land through fraud." The uncertain ambit of these expressions has been limited by judicial decision to actual fraud by the registered proprietor or his agent: Assets Co Ltd v Mere Roihi'

21. Once the Plaintiff has established his title the Defendant could not rely on the sale and purchase agreement entered in 2005 to establish a right to possession as it had already been terminated in accordance with the provisions contained in the said agreement for the default of the Defendant.
    
22. The Defendant cannot claim any rights contrary to what he had already consented except in limited instances in the interpretation of the agreement. The counsel for the Defendant has accepted the conditions of the agreement and they are bound by that and the issue of damages in case of a default has been dealt in the said agreement.
    
23. The Defendant claims that he had built a substantial dwelling on the property worth more than $40,000. There is no evidence as to the value of the structure, but an approved plan for a dwelling is produced without any evidence of completion of that. I do not have evidence to support that the structure approved was actually built on the land.
    
24. It is unlikely any person would built a house worth $40,000 when the consideration for the price for the land is in substantial arrears as in this case where the Defendant has paid only $800 in four years out of full consideration $21,000. So, again I reject the allegation of $40,000 improvement on the land.
    

D. CONCLUSION

25. The Defendant has not shown any right to possession since the sale and purchase agreement was terminated in accordance with the provisions in the said agreement. I will grant the Plaintiff possession of the property described in this application, but considering the circumstances of this case stay the execution of the order for three months. I will not order any cost for this application.
    

E. FINAL ORDERS

1. The Plaintiff is granted the possession of the property described in the summons.
   
2. The execution is stayed for three months from today. (i.e. till 4th November, 2012)
   

100. No cost.
     

Dated at Suva this 6th day of August, 2012.

Master Deepthi Amaratunga
High Court, Suva