Indo-Zambia Bank Limited v Fucho Transport Limited and Another (HPC 214 of 2015) [2015] ZMHC 164 (7 December 2015)

,, IN THE HI H COURT FOR ZAMBIA 20I5/HPC/02I4 AT THE COMMERCIAL REGISTRY HOLDEN ~ LUSAKA (Civil Jurisdi tion) In the matter f: An application for delivery of possession of the property Central Province to the known as Lot No. 25567/M Applicant as Legal Mortgagee pursuant to a power of sale comprised in the 3rd Party Mortgage Deed dated 7th February 2014 made betv.'cen the Applicant and the Respondents BETWEEN,: INDO-ZAMB! BANK LIMITED AND FUCilO TRA SPORT LIMITED CHOLA MAT I KA 2'" RESPONDENT BEFORE HqN. MADAM JUSTICE PRISCA MATIMBA NYAMBE, SC AT LUSAKA IN CHAMBERS For the AppIi ant: For the Respo dents: Mr. Matiya N dhIovu M N R Legal Practitioners Frank Tembo Frank Tembo & Pm1ne1' JUDGMENT l.. Jst.. Q.t:...a-utQQriti s referred to: 1. Order 30 Rule 14 of the High Court Rules, Cap 27 of the Laws of Zambia This is an action commenced by the Applicant by Originating Summons pursuant to 0rder 30 Rule 14 of the High Court Rules, Cap 27 of the Laws I of Zambia. The OriginatIng Summons was supported by an affidavit dated 18'h May 2015 deposed to by one PASCCALINA CHABATENO MWENSO, the Chief Manager in the employ of the Applicant. The Originating Summons was also supported by skeleton arguments filed on the same date. The Respondents did not file an affidavit in oppOSItIOndespite the Court having grantbd Counsel on record an adjournment to enable them file an .. I .. ffid a I aVlt ill 0 pOSltlOn. Subsequently a Notice of hearing was issued setting the matter for hearing to today. Counsel for t e Respondents did not appear. No reason for none attendance was commun cated to Court for none appearance. I have perus d the documents on record especially Exhibit "PCM1", the Overdraft Fa ility indicating clearly the terms and conditions and the amount advanced to t e Respondents by the Applicant, being K250,OOO.00. J2 I am therefo e satisfied that the Respondents are truly and justly indebted to the Applican . I note furthe that of the amount advanced, the Applicant has acknowledged in paragraph 13 of the affidavit in support of the Originating Summons that thc I" Responde t paid ZMWI60,000.00 on 13'" January 2015, ZMW3,000.00 ON 6'" Feb ary 2015 and ZMW4,000.00 on 24'" March 2015 thus reducing the principal amount by KI67,000.00, leaving an outstanding amount on the principal of 83,000.00. The Respon ents have not filed an affidavit in opposition to the claim nor appeared bd re Court either in person or by Counsel of record on the hearing datc. Clearly the Respondents have no defence to the claim. In the event and subject to the amounts paid by the Respondents as above, the application is granted. ORDER:- I. I enter Judgment in favour of the Applicant for the balance of the a aunt advanced, less the amounts of KI67,000.00 paid on the 13th January 2015, ZMW3,000.00 paid on 6th February J3 nd ZMW4,000.00 on 24th March 2015. The amount due a d owing to the Applicant being K83,000.00. 2. Interest on the outstanding balance as above shall be at the rate a~ agreed in the Overdraft Facility dated 8th August 2013 with I fect from the Cause of action till final payment. 1 note the Mortgaged Property was valued at from xhibit "PCM]" K660, 00.00. Taking into account the repayments made by the R spondents and the balance outstanding I find no need to ord r as requested under (iii)of the Originating Summons. 3. Furth r, I order that the Respondents shall repay the Judg ent Debt with interest as above, within six (06) months from t e date of this Judgment. In default the Applicant shall iberty to Foreclose/Sale the Mortgaged Property being o. 25567/M Chibombo without further Court Order. 4. In vIe v of the value of the Mortgaged Property stated as K660, 00.00 and the relatively small balance outstanding in favour of the Applicant, the property shall be publicly advert sed for sale to ensure that the best possible price is realize In the event the property shall be sold at a pnce higher than the outstanding balance III favour of the Applic nt, the balance shall be liable to be refunded to Respo dents. J4 Costs shall ~ ow the Cause, to be taxed in default of agreement. Dated this .. 1.0....daY of.. \ ..................... ••• • •••••••••••••••••••••••••••• Prisca M. Nyambe, SC JUDGE J5