Mandala Limited v Kanjira (Civil Cause 373 of 1985) [1988] MWHC 9 (6 May 1988)

B Cra . . IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.373 OF 1985 BETWEEN : MANDALA LTD. (MOTORS DIVISION)........cc0¢+¢+¢+PUAINTIFF - and - WH. RANITRA «6c ces ewess cessed cee cesecews « ss DEFENDANT Coram: UNYOLO, J. Maulidi of counsel for the plaintiff Nakanga of counsel for the defendant Longwe, Court Reporter Mkumbira, Court Interpreter JUDGMENT By its amended statement of claim the plaintiff claims from the defendant the sum of K5,675.82 being arrears due and payable by the defendant to the plaintiff under a hire purchase agreement. The defendant denies owing the said sum or at all. It was common case that the defendant obtained a used Ford Truck registration No. BD 4979 from the plaintiff under a hire purchase agreement. The plaintiff tendered in evidence the actual Agreement executed by the parties in this context. Exhibit Pl refers. The purchase price was agreed at K9,000 and to this sum was added the sum of K833.16 representing divers charges connected with the deal herein. The total purchase price accordingly came to K9,833.16. The Agreement stipulated a down payment in the sum of K3,000 being a deposit and the balance was to be paid in eighteen instalments of K379.62 per month effective from the 30th of August 1979. Incidentally the Agreement, Exhibit Pl, was executed on 23rd July, 1979. It is common case further that the defendant failed to keep up with the agreed repayments and that the truck was in consequence seized and repossessed by the plaintiff. It was in the evidence that the same was subsequently sold on the market overt for the sum of K3,000.00. Of svue »- f= The first point upon which the parties are in dispute relates to the deposit. The plaintiff on the one hand contends that tne defendant issued two cheques each in the sum of K1,500 in peyment of the said deposit and that one of the said cheques bounced when presented to the bank for payment. The plaintiff tendered in evidence Exhibit P2, a cheque, and contended that this was the dishonoured cheque. The defendant, on the other, contends that he paid the said deposit in full before Exhibit Pl was executed. He stressed that the plaintiff would not have executed the Agreement let alone allow him to take the truck before the deposit was actually paid in full. The defendant vehemently denied Exhibit P2 was issued in payment of the deposit or part thereof. With respect, the evidence adduced on the part of the plaintiff on this aspect appears to me to be confusing and is far from satisfactory. Exhibit Pl shows that the K3,000 deposit was paid on 23rd July, 1979 the date the Agreement was executed. Exhibit P4, a Ledger Card, maintained by the plaintiff in respect of the Agreement herein shows, on the other hand, that the K3,000 was paid on two different dates, i.e. K1,500 on 12th July, 1979 and a further K1,500 on 25th July, 1979. And what is more, Exhibit Pl shows that the K:.000 was paid in the form of "money" and I understand this to mean cash. Considering the total evidence I find the defendant's story plausible and prefer it to that of th: plaintiff. I find therefore that the K3,000 deposit was paid by the defendant. Next, the defendant claims to have paid a further sum of K1,500. This is denied by the plaintifif. It is to be noted that the defendant was not able to produce any documentary evidence to support the alleged payment. He testified that he made the payment by cheque and that unfortunately the paid cheque was misplaced as he moved from one place to another. With respect, I think that I would have to be credulous to accept the defendant's story without a pinch of salt. To make a long story short I reject it. All in all I am satisfied that the only sum paid by the defendant to the plaintiff was the deposit in the said sum of K3,000 and that thereafter no further payments were effected, the cheques issued having been dishonoured by the bank and I so find. I now turn to the claim for arrear instalments. As already indicated it is not disputed that the defendant defaulted in his repayments of the instalments and that in consequence the plaintiff's decision to terminate the Agreement and repossess the truck cannot be faulted. Such was the plaintiff's right under the Agreement. Clause 7(a)(ii) thereof refers. Upon such an eventuality the Agreement provided that the plaintiff would be entitled to claim for arrear instalments. The point taken by counsel for the defendant on this aspect was that the plaintiff can only claim arrears up to the time the truck was seized. BF = ees As I understand it, by the time the plaintiff commenced this action none of the eighteen instalments stipulated under the Agreement had been paid. And here the plaintiff Claims only eleven arrear instalments. For my part I can find nothing wrong with the claim on this part since such instalments were payable under the Agreement. In short the plaintiff's claim in the sum of K4,175.82 is made out. However from this figure must be deducted the sum of K3,000 representing the money realised from the subsequent sale of the truck by the plaintiff. This leaves a balance of K1,175.82 and I find that the plaintiff has proved its claim against the defendant but only to the extent of the said sum of K1,175.82 and since nothing else was claimed, I enter judgment for the plaintiff for this sum, with costs on the subordinate court scale. PRONOUNCED in open Court this 6th day of May, 1988 at Blantyre. JUDGE