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Sugar Cane Growers Fund v Chand [2011] FJMC 171; Civil Action 12.2009 (28 September 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT
AT SIGATOKA
WESTERN DIVISION
FIJI ISLANDS

Civil Action No. 12 of 2009

Between:

SUGAR CANE GROWERS FUND
Plaintiff

And:

MUKESH CHAND
Defendant

Before Mr. Chaitanya Lakshman
RESIDENT MAGISTRATE

Counsels: For the Plaintiff : Mr. Shalen Krishna – Krishna & Co.
For the Defendant : In Person

RULING

Means Test – Judgment Debtor Summons

1). Introduction

A Judgment Debtor Summon was issued against the Defendant for a sum of $45,081.88, plus debt costs and interest on the judgment sum following default in payment of the said sums. The Defendant appeared personally to be examined as to the means he has or has had since the date of judgment to pay the sums due to the Plaintiff.

2). The Defendant gave sworn evidence on Ramayan in Hindi. His evidence was as follows: "sole breadwinner earning $400/month from driving a Taxi. Have high blood pressure. 2 Sons – 1 in Cuvu College. One in Primary School. Rent, FEA and Water bills amount to $200/month. Medication and food is $180.00. I am left with $20.00. The land has been tendered.

3). In cross-examination the Defendants response was as follows: "not my taxi owned by Micheal Fullman a LTA Officer from Cuvu. I am on contract with him. I pay $150/week to Micheal Fullman. Over and above is mine. Filled in form when applied for loan. I filled in the form and I signed. Land and building valued at $75,000.00. Motor vehicle worth $8000, machine and tractor - $2000.00, Livestock - $500.00, life insurance - $50,000.00, FNPF - $2000.00, furniture and personal effects - $10,000.00. I did not lie when I took loan. [DE-1 loan application form tendered]. No receipts for medication. Have to pay Private Doctor for medication. Rent receipts with Landlord. Have TIN #. Bank is Baroda. No statements. $55 in account. Do not own taxi permit. Did not buy of Mohd Rafiq. Am not lying in Court. I am renting from Rohit Narayan son of Hari Narayan of Cuvu, Sigatoka."

4). In Re-examination the Defendant stated "can only pay $20/month. Took loan in 2002. Upon questioning by the Court on the Insurance he disclosed on the application form the defendant stated "Insurance surrendered in 2009, got $2000 used $1500 for food and other items." Upon working figures out and stating to the Defendant that he had the means to pay and that he can pay more than $20.00 per month. The Defendant offered to pay $150/month.

5). The Court has noted the evidence of the Defendant in Court. The Court also noted the demeanor of the Defendant. The Court has also seen the information the Defendant provided the Plaintiff when he applied for the loan in 2002. The Defendant when he applied for the loan in 2002 stated that he had no liabilities and assets worth $$155, 550.00. He had sought a loan for $32,000.00 from the Plaintiff.

The Defendant stated that he earned $400 per month and that he spends $380 and is left with $20.00. The Defendant did not produce any statements, receipts or bills in Court to show how much he paid as his expenses. The Court noted that the Defendant was evasive and gave figures to suit himself and show that he was left with virtually nothing. When prompted by the Court that he had the ability to pay more. The Defendant offered to pay $150 per month which is way beyond his calculations to pay $20/month.

The Court finds from the means examination that the Defendant is not telling the truth and has not given his true financial position and is evasive. The Defendant from the initial application which though applied for and assessed in 2002 showed that he had assets worth $150,000.00 and has only surrendered his insurance policy worth $50,000.00, if that is the case. As he has not shown any documents showing he has disposed the insurance. The other assets worth about $100,000.00 have not been disposed and no evidence has been given in Court to that effect that it has been disposed. From the evidence tendered in Court the Court notes that Defendant has the ability and means to pay his debts but is refusing to pay the same despite having the means to pay.

In the absence of any documentary statements, receipts and bills it is very difficult for the Court to assess the means of the Defendant. However, having noted the evidence of the Defendant and his change in postion when questioned by the Court that he had the ability to pay more and the offer by the Defendant to pay $150/month the Court finds that the Defendant has the ability to pay $250/month (Defendant has the ability to pay about $60-$70 per week) with the 1st payment to be made by the Defendant at the end of October 2011 at the Plaintiffs Office.

6). The Court Orders as follows:

(a) That the Defendant pay $250/month.

(b) That the 1st Payment be made at the end of October 2011.

(c) Payments to be made at the Plaintiffs Sigatoka Office.

The Parties have 28 days to appeal this ruling if they are not satisfied with the Courts decision.

Chaitanya Lakshman
RESIDENT MAGISTRATE

28/09/2011