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Prasad v Raju [2015] FJHC 208; HBC68.2010 (23 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 68 of 2010

BETWEEN:

RAVINDRA PRASAD of Lot 11, Sekoula Road, Laucala Beach Estate, Nasinu.
Plaintiff

AND:

KRISHNA RAJU of 9 Karan Singh Road, Samabula, Suva, Businessman.
Defendant

Appearance : Mr Chandra S of M C Lawyers for the Plaintiff

Mr Nandan S of Reddy & Nandan Lawyers for the Defendant

Date of Judgment: 23 March 2015

JUDGMENT

[1] The inter-partes Notice of Motion was filed on 02 April 2014 and the Plaintiff sought the following orders:

(a) The action which was discontinued on 25 June 2014 to be reinstated.

(b) The Judgment in the sum of $178,166.77 be entered against the Defendant.

(c) The Defendant to pay the said Judgment sum to the Plaintiff within 21 days from the date of Judgment with interest at the rate of 10% until full payment.

(d) Costs.

[2] In this matter I considered the following affidavits and submissions filed by the parties:

1. Affidavit in support filed by the Plaintiff on 2 April 2014.
2. Affidavit in Reply filed by the Defendant on 18 June 2014.
3. Submission filed by the Plaintiff on 07 November 2014.
4. Submissions filed the Defendant on 24 November 2014.
   

[3] In consideration of both the affidavits filed by the Plaintiff and the Defendant the following matters reveals:

1. The execution of the Deed of Settlement dated 28 June 2013 is undisputed.
   
2. The sum of $50,000.00 was paid in terms of the clause 2.2(a) of the Deed of Settlement and failed to pay the sum in clause 2.2(b) and (c) of the Deed of Settlement. The Defendant's position is that the $100,000.00 has not become due and payable liable to pay interest.
   
3. Further the Defendant states the Deed of Settlement was entered without any admission of the liability and that he had paid the interest plus one thousand dollars extra each time when he paid the interest. However the Plaintiff's position is that the Defendant specifically promised to pay the Plaintiff $100,000.00 on or before 13 October 2013 and he defaulted. The Defendant was continuing to pay $1,833.33 to the Trust Account of the Plaintiff's solicitors.
   

[4] The issue to be determined in this matter is as to whether the Plaintiff can claim to reinstate this matter and enter the Judgment as prayed for in the Notice of Motion, on the Deed of Settlement.

[5] 5.1 The Defendant had submitted that the Plaintiff failed to state under which High Court Rule the Notice of Motion was filed, however in absence of the rule I will consider this matter pursuant to inherent jurisdiction of this Court.

5.2 I have considered the clause G of the Deed of Settlement which states:

"It has now been agreed between the parties without admitting any liability to resolve the dispute once and for all and to this intent wish to enter into this deed"

I find that neither party had admitted the liability and it was in the interest of the parties to resolve the dispute. The Deed of Settlement was entered on the first day of the trial before it proceeded.

5.3 The Plaintiff had submitted the principles adopted in the case of Prasad –vs- Prasad 42 FLR 90. To adopt the principles set out in the said case the facts of this case has to be considered carefully. The main focus was drawn by Fatiaki J. on the Deed of Settlement which states as follows:

"The parties will inform the High Court of Fiji that the Action No. 48 of 1992 has been settled, that the action be adjourned sine die. In the event of a default under this Deed either party shall be at liberty to apply to the court to have an order made in terms of this Deed".

However, in the present case before me the right was not conferred with the Plaintiff to make his application in case of a default. In other words the Plaintiff and Defendant had no agreement made in case of a default to enforce the provisions in the Deed of Settlement.

Fatiaki J. stated in the case of Prasad:

"No terms of settlement were mentioned in the order nor were the same made the subject matter of any subsequent court order until the present application. In the circumstances it must be said that the Court in anyway adopted or affirmed the terms of settlement; since all that he did was to adjourn the hearing of the action sine die pursuant to the parties' agreement".

It is abundantly clear the action was sine die and it was adjourned pursuant to Deed of Settlement.

In the present case before me no adjournment of hearing; not sine die it is the discontinuation of the proceedings. No trial being proceeded and no issue was being decided. In Prasad's case evidence was led and trial had proceeded. In the said circumstance and no right reserved in the Deed of Settlement to go back to the Court, the Plaintiff's submission fails.

5.4 The Deed of Settlement is executed by the parties and agreed that (Clause G) the Defendant had not admitted any liability, it is only to resolve the dispute once and for all and to this intent the said Deed of Settlement was entered. In this situation the discontinuance of the action amounts to finality of the issues raised in the Statement of Claim.

I further find that there is a Counter Claim made by the Defendant against the Plaintiff and as such the Plaintiff has no right to claim for a Judgment in terms of the Deed of Settlement.

5.5 In Prasad's case Halsbury's Laws was cited, which states:

"The effect of such a settlement or compromise of an action succinctly set out in Vol. 37 Halsbury's Law of England (4th Edition) where it stated in para 391).

Where as parties settle or compromise pending whether before, at or during the trial, the settlement compromise constitutes a new and independence agreement between them made for good consideration. The effects are (1) to put an end to the proceedings for they are there by spent and exhausted (2) to preclude the parties from taking away further steps in the action except what they have provided for liberty to apply to enforce the agreed terms and (3) supersede the original action altogether"

5.6 The Defendant argued that in terms of the above passage in Halsbury's Law that the Court will have no jurisdiction to hear any matter pertaining to the proceedings which have reached finality. I concur with the Defendant.

5.7 As I stated in the preceding paragraph 5.3 the parties did not adjourned the matter sine die and did not reserve the right to enforce the terms the Deed of Settlement in case of a default. The parties discontinued the action which came to an end of the proceedings. The Plaintiff's claim to reinstate the claim and enter the Judgment in the terms of the Deed of Settlement fails. I conclude now the matter has given rise to a new cause of action. In the absence of an option expressly agreed in the Deed of Settlement like in Prasad's case, the Plaintiff in this matter has to bring in new action for the default of the terms of the Deed of Settlement.

5.8 For the foregoing reasons, I determine the matter in favour of the Defendant.

Orders of the Court:

(a) Inter-partes Notice of Motion filed on 02 April 2014 is dismissed.

(b) The Plaintiff is ordered to pay summarily assessed cost of $1,000.00 to the Defendant.

Delivered at Suva this 23rd Day of March 2015.

..........................
C KOTIGALAGE
JUDGE