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Prasad v Sharma [2011] FJMC 38; JDS400.2009 (24 February 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

JDS 400/09

BETWEEN

ASHNEEL PRASAD
On behalf of FAMOUS PACIFIC SHIPPING

AND

ASHNEEL SHARMA
On behalf of LAUTOKA CUSTOMS AND SHIPPING

RULING

1. This is a case where the Claimant / Judgement Creditor has taken Judgement Debtor Summons against the Respondent / Judgement Debtor consequent to an order of the Small Claim Tribunal in case No 747/09.
   
2. The Judgement Debtor Summons is served on Ashneel Sharma of Lautoka Customs and Shipping on the 3rd February 2010 as per the affidavit of service.
   
3. It appears that Ashneel Sharma is the representative who had appeared for and on behalf of Lautoka Customs and Shipping during the proceedings at the Small Claim Tribunal regarding the said claim. Apart from the above claim, it came to light on the perusal of the SCT record that Ashneel Sharma had been the representative of the counter claim No 756/09 filed on behalf of Lautoka Customs and Shipping too.
   
4. Section 24(3) of the Small Claim Tribunal Decree provides for an employee to appear as a representative of a corporation or of an unincorporated body. Therefore it is clear that Ashneel Sharma had appeared for and on behalf of Lautoka Customs and Shipping by virtue of the said provision.
   
5. When this JDS case was first called on the 24th March 2010, the Judgement Debtor did not appear and the Court issued a Bench Warrant accordingly. On the 16th April 2010 the Ashneel Sharma appeared in Court and the Bench Warrant was cancelled. Further Ashneel Sharma was granted bail to appear on the 21st July 2010.
   
6. On the 21st July 2010, a Counsel appeared on behalf of the Judgment Debtor and sought a mention date. On the 18th August 2010 the learned Counsel for the JD informed Court that he only appear for the person by the name of Ashneel Sharma and not for Lautoka Customs Shipping. The learned Counsel raised an objection saying that the JDS is issued on Ashneel Sharma and it may be struck out since it should be against Lautoka Customs and Shipping and not against his client.
   
7. Both parties were informed to make submissions on this issue.
   
8. It appears that right through out the Small Claim Tribunal proceedings in Case No 747/09, Ashneel Sharma had appeared for and on behalf of Lautoka Customs and Shipping. Furthermore Ashneel Sharma had filed a counter claim at the Small Claim Tribunal in a connected matter as a claimant for and on behalf of Lautoka Customs and Shipping.
   
9. As per Section 24(3), unincorporated bodies can be represented at the SCT through their employees as representatives. Therefore it appears that the Referee had made the order of the Tribunal mentioning the name "Ashneel Sharma" for and on behalf of Lautoka Customs and Shipping. It appears from the plain reading of the Small Claim Tribunal order, that the order is not against Ashneel Sharma and its only against Lautoka Customs and Shipping.
   
10. Be that as it may, Ashneel Sharma filed an affidavit setting out his objections. However it appeared that he has been careful not to divulge whether he is still an employee of Lautoka Customs and Shipping or whether he is terminated or resigned from the Judgement Debtor Company. Instead he has mentioned the name of the director of the said company. It is crystal clear that the Claimant / judgement creditor has taken the JDS against Lautoka Customs and Shipping and not against Ashneel Sharma in his personal capacity. Further Ashneel Sharma has not divulged any facts before this Court to show that he does not hold authority to appear for and on behalf of Lautoka Customs and Shipping any more, as he did at the Small Claim Tribunal.
    
11. Today I inquired from Ashneel Sharma in open Courts whether he is still employed at Lautoka Customs and Shipping. He said that he works for Lautoka Customs and Shipping as an accounts clerk and he has been working for them for three years.
    
12. It appears that this is merely a tactic used by the respondent company to take time and to prevent the Judgement Creditor from reaping the fruits of the Order made by the Small claims Tribunal. The objections raised could have been entertained if Ashneel Sharma does not work for the Judgment Debtor Company anymore. It is clear that the name Ashneel Sharma is mentioned in the JDS and it has been the case in the two claims before the Small Claim Tribunal as well. But during all times Ashneel Sharma's name is mentioned as " Ashneel Sharma on behalf of Lautoka Customs and Shipping". Thus it is clearly discernible that his name is used not in his personal capacity and only as a representative of the company. In the circumstances it does not seem that Ashneel Sharma was taken by surprise when he saw his name appearing on the JDS. As a responsible organization the Judgement Debtor Company should have nominate a representative if they do not wish to authorize Ashnell Sharma to appear in this case on their behalf. But for reasons best known to them a frivolous and baseless objection was raised wasting the time of this Court.
    
13. Ashneel Sharma did not tender any document to show that he ceased to be the representative for this case. On the other hand Lautoka Customs and Shipping has not made any complaints to the Court so far that Ashneel Sharma had appeared on behalf of the company at the SCT without their sanction.
    
14. It should be noted that it is the duty of every one not to abuse process of court and not to waste time of the Court. If Ashneel Sharma was not given authority to appear on behalf of Lautoka Customs and Shipping, the most prudent action the company should have taken was to come forward and make representation to this court in that regard. But instead it seems that the Judgement Debtor Company and Ashneel Sharma attempted to abuse process of this court, in collusion.
    
15. In the circumstances I decide to order Ashneel Sharma to tender a document issued by the Directors of the company stating that he will no longer represent the Company on or before the next date. Further I order Lautoka Customs and Shipping to nominate a representative to appear on behalf of the company with proper authority.
    
16. I dismiss the objections raised on behalf of Ashneel Sharma. Having considered the extremely frivolous nature of the objection raised, I order Ashneel Sharma to personally pay 750 dollars as cost to the Judgement Creditor.
    

28 days to appeal.

Rangajeeva Wimalsena
Resident Magistrate

Lautoka.

24.02.2011