Supreme Court of Mauritius, 30 janvier 2020, 2020 INT 17 – S BOOBHUN V MICHEL LUC

1 S BOOBHUN V MICHEL LUC

2020 INT 17

CN:- 19/17 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Serge Boobhun Plaintiff v/s Michel Luc Defendant JUDGEMENT The Plaintiff is claiming from the defendant the sum of Rs 370,000, as fully described in the amended proecipe dated 08 March 2017, for the prejudice and damages suffered by the plaintiff due to the wrongful acts and doings of the defendant coupled with his breach of agreement towards the plaintiff. It has been averred in the proecipe that the plaintiff entered into an agreement with the defendant for plumbing and electrical works for a one storey bungalow, situated at Jupiter lane, Beaux Songes. The said agreement was for and in consideration of an amount of Rs. 35,000 for plumbing works and Rs. 55,000 for electrical works inclusive of all materials and labour required. On the 08.10.16, the plaintiff made an advance payment of Rs. 75,000 to the defendant for the latter to start the works. However, the defendant never turned up on site and despite the fact that he was often called upon amicably to start the work, the defendant has failed to do so. The plaintiff is therefore praying for a judgement from this court condemning and ordering the defendant to pay the said sum of Rs. 370,000 with costs and interests.

The defendant has in an amended plea admitted having entered into contract with the plaintiff as averred in the proecipe and has further admitted having received an advance payment, in an amount he cannot recollect, from the plaintiff for the start of the works. He has however averred that after he started the works on site on the following week he received such advance payment, he was unable to complete same as the plastering work of the ceiling of the ground floor had not been completed. According to the defendant, it was paramount that the plastering be undertaken before starting electrical works so that in the event of an issue arising with the electrical installation, it would not be burdensome to restore same. Despite the plaintiff having been informed of the above, the plaintiff insisted on the defendant completing the electrical works, to which the defendant replied that he would not be able to follow such instructions as this would go against his work methodology. The defendant has also averred that he could not proceed with the plumbing works as he needed to finish the electric works first as per his work methodology.

It has further been averred in the plea that the defendant had entered into an agreement with the plaintiff for the purchase of a van in the sum of Rs. 175,000 and for which a sum of Rs. 125,000 had already been paid and the sum of Rs. 50,000 was due. The defendant was duly handed over the van as per their agreement. During the period that the defendant undertook the abovementioned works at the bungalow of the plaintiff, the defendant asked the plaintiff for a copy of the insurance and horsepower of the van since both had expired and needed to be renewed but the plaintiff categorically refused to hand over the said documents to him stating that the said documents would only be handed over to the defendant when the latter would complete the works. It is at that stage that the defendant decided to stop the works completely as he had already paid Rs 125,000 for the said van to the plaintiff and the latter was not cooperating to help the defendant proceed with the works for both bungalows. Additionally, in or about November 2016 the plaintiff started to call the defendant and attended his home, threatening the defendant to cut his handcuffs and using insulting words to the defendant's wife through mobile messages averring that she was a whore and other downgrading words. This situation resulted in a breakdown of the agreement from the plaintiff himself inasmuch as the defendant could not proceed with the works on site due to the plastering works which had not been completed but also because of the attitude of the plaintiff towards the defendant with regards to the van which the latter had almost purchased. The defendant feared that the plaintiff might not honor his other obligations towards him, the more so as the latter harassed the defendant and his wife and finally laid a false criminal charge against them.

3 The defendant also denied having committed any "wrongful acts and doing" and that the plaintiff is entitled to any damages and loss under paragraph 7(b) of the Plaint. He further averred that the he cannot be liable to any "additional sum incurred" since it is due to the plaintiff's own fault that the construction site was not ready and the defendant was unable to undertake the works he had been hired for. He is averring that he ought to be absolved from any responsibility for the failure to execute his part of the contract as he was prevented to perform his obligation due to events over which it had no power or control. The defendant therefore denies being indebted to the plaintiff in the sum of Rs.370,000 /- or in any whatsoever sum and moved that the Plaint be dismissed with COSTS. Both the plaintiff and the defendant deposed under oath and adduced further evidence in court. I have duly considered all the evidence on record as well as the submissions of Learned Counsels. The evidence on record consists of several pages and I do not propose to reproduce same in my judgement.

Analysis At the outset, the evidence on record shows that the defendant is not disputing the fact that the plaintiff had entered into an agreement with him as averred in the plaint and that the plaintiff had made an advance payment in the sum of Rs. 75,000 to the defendant for electric and plumbing works to be effected at his bungalow. It is further not disputed that the works as convened were not completed. The only contention of the defendant is that the electric works could not be completed because of the lashes of the plaintiff himself and because of the wrongful attitude of the plaintiff towards him regarding the sale of plaintiff’s van to the defendant. This is however denied by the plaintiff whose version is that the defendant never came on site after he was handed over the advance payment.

After assessing the whole of the evidence, I have some doubts regarding the version of the defendant. I find that the defendant came up with two different versions in court in order to justify his non-performance of the contract.

First he stated that he started the electric works on site but that he could not complete same because the ceiling of the ground floor was not plastered and thus he could not carry the works out. He stated that this was against his work methodology and that professionally it would not have been correct to do the wiring on an unfinished ceiling. He thus informed the plaintiff of same and he decided to stop going on site until the plastering of the ceiling was undertaken. Such version was put to the plaintiff in cross examination but he denied same and he

4 maintained that all construction works had been completed on the house prior to his entering into the agreement with the defendant. He denied that the ceiling was not plastered.

Thereafter the defendant came up with another version where he explained that he purchased a van from the plaintiff which was his only means of transport from his place to go on site. Since he only made a part payment to the plaintiff and a sum of Rs. 50,000 was still overdue on the said van, the latter kept all the legal documents of the van with him. At some point in time, the insurance policy on the van expired and he requested the plaintiff to hand over the said documents to him so that he could do the needful to renew his insurance policy but the latter refused to do so and told him that the documents would be handed over to him only if the defendant completed the works as per the contract. Since the van was his only means of transport to carry his equipment on site, he was unable to repair on site and thus the works could not be completed. I pause here to highlight that this version was never put to the plaintiff in cross examination.

It is therefore unclear from the above versions whether it was due to the fact that the plaintiff did not plaster the ceiling that the agreement was not performed or whether it was because the defendant did not have a means of transport to carry his equipment on site that such agreement came to an end. Be that as it may, I find that in both instances, it cannot be said that it was due to the lashes of the plaintiff that the works could not be completed on site.

Indeed, from a copy of the agreement that was produced in court – Doc C, I find that the parties never covenanted in terms of the averments of the defendant. The agreement does not stipulate that the ceiling should have been plastered prior to the electric works being effected in the house. As per the defendant’s own version, it was only when he started doing the electric works on the ground floor that he informed the plaintiff that he had an issue with the ceiling and the latter asked him to proceed with the works anyway. However, since it was against defendant’s work methodology to proceed with the work in such conditions, he decided stop the works. From the evidence on record, it is not disputed that the defendant visited the house prior to entering into the present contract and the record shows that the parties did not address the issue of the ceiling in the said agreement. The evidence further shows that despite the request from the plaintiff to proceed with the works, the defendant decided to stop the works. There is nothing on record to show that the plaintiff undertook to do the plastering of the said ceiling at any point in time. I therefore find that it was in fact the defendant who unilaterally decided to suspend all works on site, thus discarding the instructions of the plaintiff. Therefore it cannot be said that it was due to the own fault of the plaintiff that the works had stopped on site.

As far as the sale of the van is concerned, I find that it is a side issue which has no bearing on the present case. As per Doc H, the sale transaction took place on the 12 July 2016 whereas the present contract was entered into on the 03 October 2016. I find that the two transactions are distinct and separate. The defendant stated that he could not renew the insurance policy of his van because he was not handed over the relevant documents by the plaintiff and thus he had no means of transport to go on site. I however find that if the defendant was indeed determined to complete the works as convened, he could have made alternative arrangements to convey his equipment on site. There is nothing on record to show that the defendant made any effort in that respect. I therefore find that it cannot be said that it was due to the acts and doings of the plaintiff that the defendant was prevented from completing the works on site.

In addition to the above, I find that the fact that the defendant was unable to confirm the location of the electric metre on site in cross examination, when he contended that he did carry out certain electric works on site, raises a serious doubt on the veracity of his version. He explained that he only did the sheathing of the electric wires inside the building and that he was provided with a power extension cord by the plaintiff to undertake with the said works. The electric wires were not yet connected to the metre and thus he cannot say where electric metre was located. I however find it hard to believe such version of the defendant. Indeed, one can reasonably expect from the defendant, as an electrician, in the given circumstances, to know exactly where the electric metre was found because this was the very source of the electric connection in the house and even though the wires were not connected to the metre, at least, as an electrician, the defendant ought to have known where such electric metre was situated. I am therefore skeptical and doubtful about the version of the defendant.

Taking the whole of evidence ushered by the defendant in court and bearing in mind the above, I find that it would not be safe to rely on the version of the defendant.

As for the plaintiff, he testified to the effect that on the 03 October 2016, he entered into contract with the defendant and on the 08 October 2016, he effected a part payment in the sum of Rs. 75,000 to the latter but the defendant failed to honour the contract. On the 20 December 2016, he caused a notice mise en demeure to be served on the defendant, who did not react to same. He is thus claiming back the advance payment of Rs. 75,000 from the defendant. He further explained that as result of the breach of contract by the defendant, he suffered prejudice and damages. He stated that he had to hire the services of another person to complete the works for the sum of Rs. 105,000. An invoice to that effect was produced and marked as Doc D. On the

6 issue of damages, he stated that he rented 20 pairs of galvanized scaffoldings for a total sum of Rs. 90,000 – vide Doc E – so that the defendant could undertake the works on site, but the defendant never repaired on site. He is therefore claiming such sum from the defendant. Finally, the defendant produced a rent agreement dated 01 October 2016, between himself and one Mrs. Arlette Kowlessur, according to which the said Mrs Kowlessur had agreed to rent the house in lite as from the 01 November 2016 for a monthly rent of Rs. 30,000 and for which an advance payment of Rs. 90,000 had been made. The plaintiff stated in court that he had to put an end to such agreement because the defendant did not complete the works convened. He is therefore claiming such loss of income from the defendant.

In cross examination, the plaintiff maintained his version. He maintained that the defendant never started the works on site despite having received the advance payment of Rs. 75,000. He further maintained that he had to hire the scaffolding so that the defendant could effect the works at his place, in view of the fact that the house was about six metres high and the defendant had a stepladder of only 1.5 metres high and therefore he would not have been able to carry out the works properly. As far as the claim in the sum of Rs.105,000 and the claim for loss of income of Rs. 90,000 are concerned, the defendant did not challenge such evidence in court and such evidence has therefore remained unrebutted in court.

After assessing the whole of the evidence on record, I find that that the plaintiff deposed very coherently and in a confident manner. He remained adamant and consistent on his version. I also find that the plaintiff has passed the test of cross examination without waver. On the whole, the plaintiff has struck me as a witness of truth and I am satisfied that his version can be relied upon.

Conclusion For all the reasons given above therefore, I find that the plaintiff has proved his case on a balance of probabilities and that he suffered prejudice and damages as follows: (i) Rs. 75,000 representing advance payment effected to the defendant under the contract; (ii) Rs. 105,000, representing cost incurred by the plaintiff to complete the works; (iii) Rs. 90,000, representing an amount pair for the renting to the scaffoldings; and (iv) Rs. 90,000 representing loss of income.

I therefore order the defendant to pay the sum of Rs. 360,000 to the defendant with interest as from the date of judgement and costs.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 30 January 2020