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Chand v Singh [2009] FJMC 29; Civil Case 302.2008 (30 October 2009)

IN THE RESIDENT MAGISTRATES COURT
CENTRAL DIVISION
SUVA

Civil Case No. 302 of 2008

BETWEEN:

RAVINESH CHAND
PLAINTIFF

AND:

SAKATH SINGH
DEFENDANT

Counsel for the Plaintiff: Mr S Kumar, Esq.
Counsel for the Defendant Mr N Lajendra

Date of Hearing: 01 September 2009
Date of Judgment: 30 October 2009

JUDGMENT

[1] This is the Plaintiff’s claim against the Defendant for non-payment of a Promissory Note in the amount of $10,000.00.

[2] The Defendant admits the Promissory Note dated 27th April, 2006 but says that it actually represents a deposit for the purchase of his Native Lease No. 27929 by the Plaintiff’s brother, Ramesh Chand.

[3] The Defendant says further that the Promissory Note was to be repaid when the Plaintiff’s brother completed and settled the purchase of the Defendant’s said Native Lease land.

[4] There is a related action, No. 365 of 2008, concerning the alleged agreement for sale and purchase of the Defendant’s Native Lease land, the trial of which was conducted on the same day as the trial of this action.

[5] The parties’ solicitors were ordered to file simultaneous submissions by 29th September 2009. Only the Plaintiff’s solicitor has filed submissions herein.

The Evidence

[6] Evidence was given by the Plaintiff, Mr Ravinesh Chand [PW1] and the Defendant Mr Sakath Singh [DW1].

[7] The original Promissory Note dated 27th April, 2006 was tendered into evidence as Exhibit 1.

[8] A photocopy of Bank Cheque dated 27 April 2006 for $10,000.00 payable to Sakath Singh was tendered into evidence as Exhibit 2.

[9] A photocopy of Native Lease No. 27929 was tendered into evidence on behalf of the Defendant as Exhibit 3.

[10] The Promissory Note [Exhibit 1] reads as follows:

"THREE MONTHS AFTER THE DATE HEREOF I the undersigned SAKATH SINGH (father’s name Bhagwan Singh) of Lakha Singh Road, Sakoca, Tamavua, Businessman PROMISE TO PAY RAVINESH CHAND (father’s name Dewan Chand) of Narere, 8 miles, Nasinu, Businessman OR ORDER the sum of $10,000.00 (Ten Thousand Dollars) being the amount this day cash lent and advanced to me (the receipt of which sum I doth hereby admit and acknowledge)."

[11] Exhibit 1 is signed by the Defendant and witnessed by a solicitor who certifies that the contents were first read over and explained to the Defendant in the Hindustani language and that the sum of $10,000.00 was paid over to the borrower in his presence.

[12] The evidence of the Plaintiff was that this transaction occurred at a solicitor’s office, and the loan was to assist the Defendant with his daughter’s education.

[13] The Plaintiff gave evidence that after the three months had passed the Defendant told him he would repay once he sold his shop.

[14] The Plaintiff also said that Mr Ramesh Chand was not his brother, but his cousin, and that the Defendant was a family friend.

[15] On cross examination the Plaintiff steadfastly denied any connection between the Promissory Note and the agreement for purchase and sale of Native Lease No. 27929.

[16] The Defendant’s evidence was that the Plaintiff was assisting his brother Ramesh to buy the Defendant’s shop by giving the money for the $10,000.00 deposit, as his brother did not have that kind of money.

[17] The Defendant confirmed that the parties went to a solicitor’s office and that the Promissory Note was the only "agreement" made at the solicitor’s office.

[18] The Defendant said his understanding was that when he received settlement for his property from the Plaintiff’s brother he would repay the Plaintiff.

[19] In cross examination the Defendant admitted owing the Plaintiff $10,000.00.

The Law as to Parol Evidence

[20] Exhibit 1 is a written agreement, entered into at a solicitor’s office and witnessed by a solicitor, that is complete on its face.

[21] The Defendant is seeking to vary the terms of that written agreement by parol evidence, saying it was his understanding that he would repay the Plaintiff upon settlement of the sale of his property to the Plaintiff’s brother Ramesh Chand.

[22] There has been no such settlement; in fact Mr Ramesh Chand has been evicted from that property and he has now brought an action against the Defendant to recover certain deposit monies and damages.

[23] The Defendant admits signing the Promissory Note, and he admits owing the money to the Plaintiff.

[24] The general rule as to parol evidence is that it is not admissible if it would have the effect of varying or contradicting the terms of a document constituting a valid and effective contract, but it can be let in to show the true consideration, to show fraud, the nature of the transaction or the true relationship between the parties. Ammar v Deoki, 15 FLR 29 (1969).

[25] Here the Defendant is seeking to show a different date for repayment, one conditional on settlement of the sale of his property to the Plaintiff’s brother.

[26] That would vary the terms of the Promissory Note, which clearly states that repayment is due within three months from the date thereof. Repayment is not stated to be conditional or contingent.

[27] It may well be that the due date of the Promissory Note was chosen to coincide with when the Defendant expected his Native Lease to be issued in registrable form. There is nothing in the Promissory Note to expressly tie it to the sale of the Defendant’s Native Lease, and it is not tainted by any unlawful dealing in native land. It was executed by the Defendant in front of a solicitor who explained it to him in the Hindustani language so he knew what he was signing.

[28] The Defendant has received the monies under the Promissory Note. He is bound by the terms of the document he signed.

In Conclusion

[29] The Plaintiff is entitled to judgment against the Defendant in the sum of $10,000.00.

[30] The Plaintiff asks for interest of 13% per annum from the due date of the Promissory Note in his Statement of Claim. There is no basis for awarding interest as the Promissory Note clearly states that interest is "nil". There is no provision for charging interest after default in the Promissory Note, and the Plaintiff cannot charge interest on the Promissory Note in the absence of an agreement by the Defendant to pay such interest.

[31] The Plaintiff is entitled to the statutory post judgment interest of 5% and solicitor’s costs.

[32] The Court awards judgment in favour of the Plaintiff against the Defendant in the sum of $10,000.00 plus post judgment interest at 5% per annum, solicitor’s costs summarily assessed in the amount of $1,000.00 and endorsed court costs of $43.13.

DATED this 30th day of October, 2009.

Mary L Muir
RESIDENT MAGISTRATE,
SUVA