Aindranarth Surrendra Dhaniram v Dale J. Khan
| Jurisdiction | Trinidad & Tobago |
| Judge | Madame Justice Quinlan-Williams |
| Judgment Date | 11 April 2022 |
| Neutral Citation | TT 2022 HC 082 |
| Docket Number | CLAIM NO: CV2016-04421 |
| Court | High Court (Trinidad and Tobago) |
the Honourable Madame Justice Quinlan-Williams
CLAIM NO: CV2016-04421
IN THE HIGH COURT OF JUSTICE
Mr. Robert Abdool-Mitchell instructed by Mr. Vishaal Siewsarran for the Claimant
Mr. Reshard Khan instructed by Ms. Kizzy Subero for the Defendant
A judgment summons supported by an affidavit sworn by the judgment creditor was filed on the 20 October 2021 to enforce the judgment creditor's judgment. The judgment summons issued was in Form 2 of the Debtors Rules made under section 6 of the Debtors Act Chap. 8:07. The judgment was for the sum of Three Hundred and Seventy-Two Thousand dollars ($372,000.00), costs in the amount of Fifty-Eight Thousand and Seven Hundred Dollars ($58,700.00) and interest totalling Three Hundred and Ten Thousand Dollars ($310,000.00). These sums became due and owing by way of a judgment entered on the 16 April 2019 for the judgment creditor against the judgment debtor.
There are also sums due and owing by the judgment debtor to the judgment creditor consequent on orders for costs from the Court of Appeal as follows, Six Thousand, Four Hundred and Fifty Dollars ($6,450.00) and Twenty-One Thousand, Five Hundred and Twenty — Three Dollars and Twenty-Two Cents ($21,523.22).
Therefore, the total debt due and payable to the judgment creditor is the sum of Five Hundred, Twenty-seven Thousand, Five Hundred and Forty-One Dollars and Fifty-Six Cents ($527,541.56).
The judgment debtor was summoned to appear and did appear to be examined on oath. The purpose was to examine the means he has since the date of judgment and having made default, to show cause why he should not be committed to prison for the default.
The judgment creditor has asked the court not to take the Debtors Act in isolation of the evidence given at the trial. If considered in that context, it is submitted, the court would be satisfied that the judgment debtor had the means to satisfy the judgment debt and made default thereof.
On the other hand, the judgment debtor says that the court can only consider the judgment debtor's means from the date the judgment was entered. Further, the burden of proof is on the judgment creditor to satisfy the court that the judgment debtor has or had the means to pay the judgment debt. The judgment debtor has no burden to prove that he did not have the means to pay the judgment debt. Further, the judgment creditor can subpoena witness/s to prove its case on the judgment debtor's means.
The judgment summons was served on judgment debtor the 5 January 2022. He swore an affidavit in filed on 2 February 2022, he confirmed the contents of the affidavit and he was cross-examined. The evidence adduce on examination in answer to the judgment summons came from the judgment debtor.
The judgment debtor's evidence is that he is self-employed as a builder. He carries out small jobs generating an income of Four Hundred and Fifty Dollars ($450.00) to Five Hundred Dollars ($500.00) per job and earning approximately One Thousand and Six Hundred Dollars ($1,600.00) per month. The judgment debtor says he does not issue receipts. The court does not believe that an experienced contractor such as the judgment debtor would not issue receipts for the jobs he undertakes for his clients. The court also does not believe that the judgment debtor, a contractor with a registered company has monthly earnings in the sum of One Thousand and Six Hundred Dollars ($1,600.00). This evidence is intended to mislead the court by downplaying the earning capacity and the earnings of the judgment debtor. While the judgment debtor says his income is used to defray monthly expenses and at times his family assists him with his expenses and the payment of bills, the court notes he gave no figures for those expenses and bills.
There is no dispute that the judgment debtor has not paid any money towards the judgment debt.
On the 12 June 2019, the judgment debtor sold a vehicle for Forty Five Thousand Dollars ($45,000.00). His sale occurred after the judgment was pronounced on 16 April 2019. He used the proceeds from the sale of his vehicle to liquidate some of his personal loans and bills. None of the money went towards the judgment debt. The court notes, that this vehicle is still registered in the judgment debtor's name.
The judgment debtor says the judgment debt is now a priority. He has offered to make “pay the Claimant by instalments in the sum of Two Thousand Five Hundred Dollars ($2,500.00) on or before the 28 th day of February, 2022 and thereafter the sum of Eight Hundred Dollars ($800.00) to be paid on or before the 25 th day of every successive months until the said judgment debt is liquidated.” 1
The judgment debtor exhibits a number of bank statements to his affidavits marked D.K.2. Some of those bank statements predate and some post-dated the entry of judgment. The court considered those statements after judgment was entered. There is a bank statement from Scotiabank for the period 10 July to 10 August 2019 that shows a deposit of Forty Dollars ($40.00).
There are exhibited a number of bank statements from...
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