Garibdass et Al v Singh
| Jurisdiction | Trinidad & Tobago |
| Judge | Permanand, J. |
| Judgment Date | 29 June 1989 |
| Neutral Citation | TT 1989 HC 88 |
| Docket Number | 2263 of 1988 |
| Court | High Court (Trinidad and Tobago) |
| Date | 29 June 1989 |
High Court
Permanand, J.
2263 of 1988
Dr. F. Ramsahoye S.C. with Miss J. Koorn and Mr. K. Harrikissoon for the plaintiffs
Mr. F. Solomon and Mr. R. Armour for the defendants
Company law - Receiver — Appointment of receiver by first defendant — Deed of guarantee assigned to first defendant — Construction of deed of guarantee — Plaintiffs issued proceedings for determination of the validity of the appointment — Finding of court that deed of guarantee not void for uncertainty — Finding of court that the right to appoint a receiver/manager had not been reserved in the deed of guarantee assigned to the first defendant — Declaration that appointment of receiver was null and void and of no effect — Counterclaim dismissed.
As a consequence of the first named defendant appointing the second defendant as Receiver/manager of the seventh named plaintiff, namely, Ramharry Garibdass Bros. Contracting Limited (hereinafter referred to as “the plaintiff company”), the plaintiffs instituted the action herein on December 15, 1988.
The plaintiffs claimed against the defendants in the writ of summons the following –
“(a) A declaration that the purported appointment of the second named defendant as receiver and manager of Ramharry Gariddass Bros. Contracting Limited (the seventh named plaintiff herein) is null and void and of no effect.
(b) A declaration what the first named defendant, is and/or was not entitled to appoint the second named defendant as receiver and manager of Ramharry Garibdass Bros. Contracting Limited (the seventh named plaintiff herein).
(c) An injunction restraining the second named defendant whether by himself his servants and/ or agents or any of them or howsoever otherwise from continuing and/or remaining in possession of any of the assets of the first named plaintiff and the seventh named plaintiff company or in any way acting or purporting to act in pursuance of his purported appointment as receiver and manager of Ramharry Garibdass Bros. Contracting Limited (the seventh named plaintiff herein) under the powers contained in a legal charge issued by the seventh named plaintiff company herein to the Royal Bank of Trinidad and Tobago Limited dated the 29th day of July, 1980 and assigned to the first named defendant on the 5th day of December, 1988 and from advertising himself as receiver and manager of the seventh named plaintiff company.
(d) An account of all monies received by the second named defendant on behalf of the seventh named plaintiff.
(e) A mandatory order that the second named defendant do hand over to the seventh named plaintiff's servant and/or agent all books, receipts and/or documents in his possession with respect to the conduct and/or management of the seventh named plaintiff's business.
(f) Damages for trespass and/or negligence and/or breach of trust.
(g) Damages for libel and/or slander.
(h) Costs.
(i) Such further or other relief as the court may deem fit.”
A statement of claim was delivered on January 31, 1989 and an amended statement of claim was delivered on February 13, 1989 and at paragraph 29 the plaintiffs claimed as follows –
“(a) A declaration that the guarantees and securities which supported the debt of $2,919,136.86 due owing and payable to the Royal Bank of Trinidad and Tobago on 21st November, 1986 and which were given by the plaintiffs herein have become spent and are of no force or legal effects;
(b) A declaration that the purported assignment of the said guarantees and securities to the first defendant is of no force or legal effect.
(c) A declaration that the purported appointment of the second named defendant as receiver and manager of Ramharry Garibdass Bros. Contracting Limited (the seventh named plaintiff herein) is null and void and of no effect.
(d) A declaration that the first named defendant is and/or was not entitled to appoint the second named defendant as receiver and manager of Ramharry Garibdass Bros. Contracting Limited (the seventh named plaintiff herein).
(e) A declaration that the individual plaintiffs are and are entitled to manage and participate as directors in the affairs of the plaintiff company in accordance with the articles of association thereof.
(f) …
(g) A declaration that the sale and disposition of the assets of the plaintiff company and the enforcement of the securities and guarantees by the defendants on the basis that the sum of $2,919,136.86 was repayable by the plaintiff company to the first defendant on or before the 9th December, 1988 are unlawful.
(h) An injunction restraining the second named defendant whether by himself his servants and/or agents or any of there or howsoever otherwise from continuing and/or remaining in possession of any of the assets of the first named plaintiff and the seventh named plaintiff company or in any way acting or purporting to act in pursuance of his purported appointment as receiver and manager of Ramharry Garibdass Bros. Contracting Limited (the seventh named plaintiff herein) under the powers contained in a legal charge issued by the seventh named plaintiff company herein to the Royal Bank of Trinidad and Tobago Limited dated the 29th day of July, 1980 as supplemented by a deed dated 11th January, 1988 and assigned to the first named defendant on the 5th day of December, 1986 and from advertising himself as receiver and manager of the seventh named plaintiff company.
(i) An account of all monies received by the defendants on behalf of the seventh named plaintiff.
(j) A mandatory order that the second named defendant do hand over to the seventh named plaintiff's servant and/or agent all books, receipts, and/or documents in his possession with respect to the conduct and/or management of the seventh named plaintiff's business.
(k) Damages for trespass and/or detinue and/or conversion and/or for breach of trust and/or for conspiracy.
(l) …
(m) …
(n) …
(o) A set off against the first defendant of all sums awarded to the plaintiffs against any sums owing to the first defendant by the plaintiffs or any of them.
(p) Costs.
(q) …
The defendants delivered their defence on March 16, 1989 and on April 12, 1989 an amended defence and counterclaim was delivered and the both defendants sought the following as against the plaintiffs –
“1. A declaration that the second named defendant is the lawfully appointed receiver and manager of all and any of the real property equipment assets undertaking and goodwill of the company whatsoever and wheresoever having been duly appointed pursuant to the powers given in the debenture dated 29th July, 1989 and is entitled to exercise all of the powers thereby conferred.
2. An injunction restraining the plaintiffs by themselves and/or their servants and/or agents and/or howsoever otherwise from interfering with and/or preventing the second named defendant from discharging his functions and/or duties as the receiver and manager of the company.
As against the first, fourth, fifth and sixth named defendants –
3. Damages for trespass to and/or detinue and/or conversion of the equipment of the company.
4. A mandatory order that the said first, fourth, fifth and sixth named plaintiffs do forthwith vacate that part of the property at Batchiya Village, Penal on which the said equipment of the company is stored and do forthwith deliver the said equipment into the possession and control of the second named defendant.
5. An order that the said plaintiffs do account for moneys received by them in respect of the equipment of the company sold and/or disposed of from the 8th March, 1989.
As against the first and seventh named plaintiffs –
6. Damages for misrepresentation.
As against all of the plaintiffs –
7. Interest.
8. Costs.
9. Further or other relief.”
Before this court evidence was led on April 24, 25, 1989 when the first named plaintiff testified. On April 26, 1989, when the matter came on for further hearing, a consent order was entered into between the parties setting out the issues as agreed upon between the plaintiffs and defendants. On April 27, 1989 the order was amended by consent.
The consent order as amended, is as follows –
“(i) The parties hereto agree to refer the following issue only for the determination of the court, namely, whether on a true construction of the deed of debenture dated 25th July, 1980, the deed of guarantee dated 11th January, 1986 and the deed of assignment dated 5th December, 1989 the first defendant was entitled to appoint the second defendant as the receiver and manager of the seventh plaintiff (the company) given the facts and circumstances contained in the following paragraphs of the said defence, namely, paragraphs 1, 2, 3, 4, 9(a), (b) and (c) which said paragraphs the parties hereby accept and admit.
(ii) It is further agreed and admitted by all parties that the second defendant assumed possession of the property and equipment referred to in paragraph 1.3 of the defence on his appointment on 9th December, 1988 and remained in possession and control thereof until 8th March, 1989 when he was dispossessed by the plaintiffs who thereafter have remained in possession and control of the said property and equipment of the company and it is admitted by the plaintiffs that they, and not the defendants, are accountable and responsible for the property from 8th March aforesaid.
(iii) On the hearing and determination of the issue referred to at paragraph 1 above, it is further agreed that the plaintiffs will be entitled to claim for the relief set out at paragraphs 29(a), (b), (c), (d), (e), (g), (i), (j), (k) with the exception of the words ‘for breach of trust and conspiracy’, (o) and (p).
(iv) It is further agreed that the oral evidence of Ramharry Garibdass already led will be disregarded and no further oral evidence will be led as...
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