Kantasingh v Harrynanan et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Sinanan, J.
• Judgment Date: 29 April 1998
• Neutral Citation: TT 1998 HC 48
• Docket Number: No. 2398 of 1995
• Court: High Court (Trinidad and Tobago)
• Date: 29 April 1998

High Court

Sinanan, J.

No. 2398 of 1995

Kantasingh

and

Harrynanan et al

Appearances:

Miss V. Bardrie-Maharaj and

Miss M. Ramcharitar for the Plaintiff

Mr. J. Tam for the Defendant

Contract - Sum owing — Plaintiff sought payment of $108,000.00 under an agreement made between the parties — Defendant agreed to pay amounts in satisfaction of amounts claimed in writ of summons issued in 1993 — Court stated that defendant was bound by the agreement and had only himself to blame for his failed effort at full recovery — Action allowed.

Sinanan, J.

1 In this action the plaintiff claims by his re-amended specially indorsed writ of summons payment of the sum of $108,000.00 under an agreement made between the parties on the 15 ^th day of June 1993 (hereinafter referred to as (the said agreement() or alternatively, the sums of $90,000.00 and $18,000.00 respectively advanced to the defendants by way of loan together with interest. the plaintiff claims further or other reliefs, interest and costs.

2 In relation to the said agreement the plaintiff pleads in his statement of claim that the same was made between the parties whereby the defendants agreed to pay the plaintiff the sum of $148,004.00 in full payment and satisfaction of the amounts claimed by the plaintiff in writs of summons no. 1847 of 1993 and no. 1849 (sic) of 1993.

3 Under the said agreement the plaintiff would discontinue these said writs of summons in consideration of the said sum (by that I understand payment of the said sum.

4 Upon receipt of a personal cheque for the said sum the plaintiff executed the written agreement. However, upon realising the cheque was personal, he returnee the same to the defendants (and it appears) requested payment by a manager's cheque.

5 In pursuance of the said agreement, on the 25 ^th day of November 1994 the plaintiff discontinued the said writs of summons. Notwithstanding, that by letter dated 25 ^th June 1993 through his attorney-at-law the plaintiff wrote to the defendants requesting payment, the defendants in breach of the said agreement failed to pay the said sum and the same remains due and awing to the plaintiff.

6 Alternatively, the plaintiff claims that during the period 1991 to 1992 he advanced to the defendants the sum of $90,000.00 at the rate of interest of 10% per annum for the construction of a dwelling house an land situate at Parsed Trace John Elie Road Chase Village Carapichaima such sum to be paid an or before the 31 ^st day of December, 1992 and further that during the period September 1991 to October 1991 he advanced to the defendants the earn of $18,000.00 at the rate of interest of 10% per annum for the purpose of purchasing 1 tot of land situate a Parsed Trace John Elie Road Chase Village Carapichaima such sum to be paid on or before the 31 ^st day of December 1992.

7 The defendants have failed and/or refused to repay the said sums.

8 By way of their amended defence the defendants deny that they are indebted to the plaintiff in the said amounts or for any part thereof. With regard to the said agreement they say they were induced to sign same whilst acting under the influence of the plaintiff. By way of particulars the defendants plead that they knew the plaintiff since about 1990. Apart from friendship, a client — attorney relationship developed between them in which they relied on the plaintiff for legal advice in all their affairs.

9 Shortly after issuing the two writs against them (hereinbefore referred to) the plaintiff apologised to them for so doing and promised that he would “call off' and discontinue same. The plaintiff told them that they would have to sign an agreement in order to effect this discontinuance.

10 The defendants say that in reliance upon the plaintiff's statement in this regard and as a result of the confidence they reposed in him they met the plaintiff his attorney's-at-law office to effect the transaction. The defendants say that after reading the said agreement they were unwilling and reluctant to sign the same because contrary to whet the agreement stated they denied owing the plaintiff the sum of $108,000.00. The defendants after that they were then told both by the plaintiff and his attorney-at-law if they did not sign the agreement the two high court actions could not and would not be called off.

11 Accordingly, the defendants say without receiving any independent legal advice they signed the said agreement. The defendants deny that the plaintiff was ever given a personal cheque and returned the same and requested a manager cheque.

12 The defendants further plead that the notices of discontinuance were file only after they had default judgments taken up by the plaintiff in relation to the two actions set aside and they entered appearances thereto.

13 Further, or in the alternative the defendants say that the plaintiff is estopped and precluded from alleging the sum of $108,000.00 is awed to him because of the receipt clause in die said agreement whereby the plaintiff acknowledged receipt of the same.

14 Finally the defendants say that by reason of the matters set forth the plaintiffs claim is frivolous, vexatious and abuse of the process and was design to harass the defendants.

The Issues On The Pleadings

15 The following in my view are the issues which fall to be determined on the pleadings.

• (A) Whether the defendants were induced by the plaintiff and/or his attorney-at-law to execute the said agreement on the basis that the same was necessary for the high court actions against them to be discontinued

• (B) Whether the Defendants were acting under the influence of the plaintiff and the circumstances were such that the defendants should have been advised of their right to have independent legal advice prior to the signing of the said agreement.

• (C) Whether the defendants issued a personal cheque far the sum of $108.000,00 to the plaintiff and the latter returned the same to them with a request for payment by a manager's cheque.

• (D) Whether the notices of discontinuance filed by the plaintiff in respect of high court actions nos. 1847 and 1848 were done pursuant to the said agreement or pursuant to some other arrangement.

• (E) Whether the plaintiff is estopped and precluded from alleging non-payment having regard to the receipt clause contained in the said agreement.

• (F) Whether the defendants are in fact indebted to the plaintiff in sums of $90,000.00 and $18,000.00 being monies advanced on loan by the plaintiff to the defendants far the construction of their house and the purchase of a parcel of land respectively.

16 I turn now to deal with these issues seriatim.

17 Issue (A) The execution of the said agreement was — there an inducement?

18 Now the agreement in question was put into evidence by consent. It exhibit E. It was prepared by attorney-at-law Kathleen Pilgrim-Thornhill and so far as is material it provides as follows:

“This agreement is made this 15 ^th day of June, in the year of Our Lord One Thousand Nine Hundred and Ninety Three Between KRISHNA KANTASINGH of 98 Agostini Settlement, Chase Village, Carapichaima, in the Island of Trinidad (hereinafter called “the plaintiff') of the One Part and DEORAGH HARRYNANAN and UCAWATTEE HARRYNANAN both of Persad Trace, John Elie Road, Chase Village Carapichaima, in the Island aforesaid (hereinafter called the defendants”) of the other part.

Whereby It Is Agreed By And Between The Parties As Follows:–

1

) The plaintiff is the same person referred to in writ of summons no. 1847 of 1993 and No. 1848 of 1993 (hereinafter called “the said writs”). 2) The defendants are the same persons referred to as the defendants in the said writs. 3) The defendants admit the plaintiff's claim as pleaded in the said writ. 4) The defendants have agreed with the plaintiff to pay to him on or before the execution of these presents the sum of $108,000.00 (the receipt of which sum the plaintiff hereby acknowledges) in full payment and satisfaction of the amount claimed in the writ of summons. 5) In consideration of this the plaintiff hereby agrees with the defendants that he will file a notice of full satisfaction and discontinue the writ of summons in the high court, Hall of Justice, Knox Street, Port of Spain, as soon as is reasonably possibly……”

19 It seems clear then that the intention was to effect a compromise of and put an end to the two subsisting high court actions.

20 What the evidence shows is that sometime in or about 1990 or 1991, the plaintiff who is an attorney-at-law did some legal work for the defendants who are husband and wife. The plaintiff had known the second defendant before, having taught her at school. A friendship developed between the parties and the plaintiff became a frequent visitor to the defendants' home. The plaintiff claims that sometime in early 1991 when the defendants began construction of their home at Persad Trace, John Elie Road Chase Village Carapichaima he advanced monies to them by way of loan for purposes of the construction of a dwelling-house up to amount of $90,000.00. Similarly he advanced $18,000.00 to them during September — October 1991 again by way of loan to purchase a parcel of land opposite to where their residence was being constructed. Both these sums were to be repaid on or before 31 ^st December 1992. The plaintiff not having been repaid he instituted legal proceedings against the defendants by high court actions nos. 1847 and 1848 of 1993 for recovery of these amounts.

21 According to the plaintiff shortly after the writs were served on the defendants, he met them at Mid-Centre Mall Chaguanas. This was a chance meeting. They asked him whether he was willing to settle the matter to which he answered in the affirmative. Then asked him whether they could retain the services of an attorney-at-law in Chaguanas to which the Plaintiff replied there were many attorneys...