Supreme Court of Mauritius, 30 juin 2020, 2020 INT 80 – JEAN CLAUDE PINOT AND ANOR V DIDIER VAN DEN BROECK AND ANOR

1 JEAN CLAUDE PINOT AND ANOR V DIDIER VAN DEN BROECK AND ANOR

2020 INT 80

CN:- 645/17 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- 1. Jean-Claude Pinot 2. Marie Helene Carol Pinot Plaintiffs v/s 1. Didier Van Den Broeck 2. Laurance Girasa Defendants JUDGEMENT In a plaint dated the 09 June 2017, the plaintiffs are averring that they are the owners of a fully furnished house situate at Impasse des Tourterelles, Morcellement Swan, Pereybere, which has been leased, for residential purposes, for a period of two years, to defendant No.1, for and in consideration of a monthly rent in the sum of Rs. 77,000. It is averred that defendant No.1 failed to pay the rent for the months of January and February 2017 and has, during the term of the lease, allowed defendant No.2 to carry a trade on the said premises, in breach of the lease agreement. On the 01 March 2017 the defendants vacated the property, leaving it in a disorderly and unclean state, with all the utensils having been misused and the furniture being damaged. On the 13 March 2017, the Plaintiffs further noted that their Orange Telephone modem was missing from the said premises. A statement to that effect was given at the Grand Bay Police Station. The Plaintiffs are further averring that through the above deeds and actions of the defendants and by making a commercial and industrial use of the said premises, they have caused a serious and rapid degradation of the house and the equipment and furniture contained therein for which they have suffered damages and prejudice which they estimate at the sum of Rs.539,875.- and made up as follows:-

a) The rent due for the months of January 2017 and February 2017 Rs. 154,000 b) The cost of replacement of the Orange Modem Rs. 6,000 c) Rental due to Orange Rs. 2,500 d) Internet and phone rental for the months of December 2016 and January 2017 which have not been paid by Defendants Rs. 4,038 e) Cost of repairs to a washing machine make Ocean together with the replacement of an electronic panel and in respect of a washing machine make WestPoint to change its water pump inclusive of labour cost. Rs. 8,500 f) The amount paid for labour, supply and replacement of a mixer basin. Rs. 900 g) The cost of other minor repairs to the said premises Rs. 1,142 h) Cost of removing and fixing tiles, finishing and fixing of 3 lamps and 15 posters Rs. 111,500 i) Repair and servicing of an existing Roller Shutters Rs. 10,120 j) Quotation for change of damaged fittings in the premises Rs. 41,175 k) Damages and prejudice suffered and moral damages for trouble and annoyance Rs. 200.000 Total Rs. 539,875

The plaintiffs have voluntarily reduced the claim to the sum of Rs. 500,000-.

The plaintiffs have also averred that, although often amicably requested to pay the above sum to the plaintiff, the defendants have up to now failed and neglected to do so. The plaintiffs are therefore praying for a judgment from this court condemning and ordering the defendants jointly and in solido to pay to the plaintiffs the said sum of Rs.500,000.- for the reason set forth above together with costs.

The defendants have admitted having rented the said premises from the plaintiffs as averred in the plaint but have denied having operated any commercial or industrial activity thereat or caused any degradation to the property by so doing. They have have averred that the defendant No.2 was the shareholder of a company known as Dress Box Ltd wh ich carried out the operation of its business in a rented premises situate at St. Joseph Road, Grand Gaube and Pavillon Road, Cap Malheureux respectively and that only the registered office of the said company was found at the at the address of the rented premises. They have denied having caused any damages to any utensils or furniture by their acts and doings and have averred that on the day the defendant No.1 handed over the keys of the rented premises to the plaintiffs, he

3 caused a Memorandum of Constat in respect of the premises to be carried out by a Registered Usher in presence of the plaintiffs and the said Memorandum of Constat does not set out any of the damages averred in the plaint. With regard to the claim under paragraph 10 of the plaint, the defendants have denied same and have put the plaintiffs to the proof thereof and have averred the following:

– the Plaintiffs have not at any rate canvassed in the plaint how each and every said claim is allegedly due.

– As regards the claim for unpaid rent, they did not pay the said rent as the plaintiff had withheld their deposit. – The items under sub paragraphs b, e, f, g, h, i and j are not set out in the Memorandum of Constat dated 03 March 2017 which was carried out in the presence of the Plaintiffs and the Defendant No.1 on the 01 March 2017 and cannot hold good. – With regards to the claim under sub paragraphs c and d, they have already paid all the invoices and there is no arrears at all for such claims. – With regards to sub paragraph e, there were two washing machines in the rented premises, one of which was not working properly when they took possession of the rented premises. The defendants have always used only one washing machine. During the 'constat' carried out by the registered Usher, the washing machines were verified and no anomaly was noted. – With regards to sub paragraph f, it was the plaintiffs who sent their plumber to carry out the necessary repairs in as much as such repairs fell under the responsibility of the plaintiffs as per the lease agreement. – With regards to sub paragraph h, the Defendants aver that during the period of the lease, there have been various repairs which needed to be carried out by the Plaintiffs such as painting, bathroom and pool house as the state of the rented house was deteriorating. Instead of the Plaintiffs carrying out the repair works, they requested the Defendants to carry out the works and accepted that the costs of the works be deducted from the payable rent. – The state of the house of the Plaintiffs were in fact and in truth in such a bad state that the Defendants' minor child had an accident and was badly injured and for which the Plaintiffs are to held liable for not having maintained their rented house in a good and tenantable conditions. The Plaintiffs are fully aware of same.

4 – With regards to the replacement of tiles, the Plaintiffs did agree with the Defendants regarding same in as much as the Plaintiffs could not carry out the works due to their unavailability and once again it was the Defendants who had to carry out the works by themselves. The Defendants have therefore moved that the present action be dismissed with Costs.

I have duly considered all the evidence adduced by both parties as well as the submissions of counsels. I do not propose to reproduce the evidence on record as it consists of numerous pages. It is common ground that the premises were rented to the defendants for residential purposes for a period of two years for and in consideration of a monthly rent of Rs. 77,000 per month. The plaintiff is not insisting on the claim for unpaid rent since same has already been settled by the defendants. The court is therefore left with the remaining claims under paragraph 10 to be determined.

Analysis Cost of repairs of orange modem It has been averred in the plaint that the plaintiffs are claiming a sum of Rs. 6,000 for the modem which was found missing from the rented premises after that the defendants handed over the keys to the plaintiffs. Plaintiff no. 1 explained in court that it was only on the 13

March 2017 that he noted that he could not connect to the internet. When he enquired from Orange, his service provider, he was questioned about the modem and it was only then that he realized that same was missing. He thus reported the matter to the police. In cross examination plaintiff no. 1 admitted that there was a modem in the house but he clarified that same had become obsolete in view of the fact that the defendants had caused fiber optic cables to be laid on the premises and that internet connections could only be acceded to through the fiber channel. He explained that a different modem had to be used in the circumstances. He did not replace the old modem by a new one. As far as the cost of the modem is concerned, the plaintiff no. 1 could not provide an exact amount regarding such cost.

Defendant no. 1 for his part admitted in court that he caused fiber optic cable to be laid in the house but he stated that he did so only after informing the plaintiff no. 1 of same. He explained that he had to purchase a new modem for such purposes and thus when he left the premises, he took along the modem with him. The old modem was put back in place. He denied that the amount claimed was due from him. His version is supported by the conclusions of Registered Usher, Mr Edoo, who effected a ‘Constat des lieux’ in presence of both parties at the time of the

5 handing over of the premises to the plaintiffs and found that the modem was in place at the time of the handing over.

From the evidence on record, it is not disputed that the modem, which was provided by the plaintiffs to the defendants at the time the premises were rented to them, had become obsolete after that the fibre optic cables were laid in the house at the cost of the defendants. It is further not disputed from the evidence on record that the plaintiffs were made aware of same by mail by defendant no. 1. Now the plaintiffs are claiming the costs of repairs of their modem. However, no evidence has been adduced regarding any damage to the modem. The record only shows that the existing modem had become obsolete. The question that arises is whether the defendants are liable for the costs of the new modem. I find that the answer to this question is to be found at paragraph 7.6 of the ‘contrat de bail’ between the parties.

Paragraph 7.6 reads as follows: “Le preneur devra maintenir les biens loués en très bon état pendant la durée du bail et les restituer à son terme, dans le même état, sauf usure normale. Il devra effectuer à ses seuls frais les réparations qui seraient nécessitées par des dégradations imputables à sa négligence ou son imprudence.”[Emphasis added]

From the above, I find that the parties had agreed that at the end of the term of the contract, the premises would be restituted in its initial state, except for usual wear and tear. Since it is not denied by the defendants that the existing modem became obsolete only after that defendant no.1 changed the cables, I find that it cannot be said that the obsolescence of the modem was due to “usure normale”. In the circumstances and in virtue of the above provisions of the contract, I find that the defendants ought to have left the new modem on the premises when they vacated, irrespective of the fact that the modem had been purchased by them.

The claim of plaintiffs as per the proecipe is in the sum of Rs. 6,000. However, no evidence in respect of same or any other sum has been adduced before this court. Bearing in mind my above observations, I am of the view that the best course of action in the present circumstances, is to non-suit the plaintiff on the present issue so that they are given the opportunity to come anew with the present claim should they wish to do so.

Rental due to orange & Internet and phone rental for the months of December 2016 and January 2017 which have not been paid by Defendants

6 As per the plaint, and from the evidence on record a sum of Rs. 2,500 was paid by plaintiff no. 2 for rental due to orange and a receipt to that effect was produced in court – vide Doc F3. The plaintiffs also produced a telephone bill from the Mauritius Telecom for the period 21/02/2017 to the 20/03/2017 – vide Doc F – which shows that a total sum of 4,390 was due as at 25/03/2017 after that a payment of Rs. 2,500 was effected (Doc F3), which sum was deducted from a total amount of Rs. 6,910 which was due on the previous bill. Docs F1 and F2 which were also produced in respect of the present claim, were not explained in court and neither have their authenticity been established in court. From the said documents it would appear that a sum of Rs. 2,019 was due for the each of the periods 21/12/2016 to 20/01/2017 and 21/01/2017 to 20/02/2017, making a total of Rs. 4,038. I however find that these documents are in contradiction with Doc F on which it appears that an amount of Rs. 4,390 was due for such period. The court is thus in confusion with regards to such documents and figures, which were not explained in court and about the exact amount being claimed from the defendants.

The defendants’ version is that the telecom bill was settled via direct debit though the bank and defendant no. 1 also produced certain documents – vide Doc N – in support of same. However, from a written annotation on the said document, it would appear that his alleged payment had been cancelled by the bank but that payment in the sum of Rs. 2,195 was then effected on the 27/03/2017. These documents were not explained either in court.

Taking the evidence as a whole, I find that the evidence on record tend to show that an amount is due in respect of the present claim but the court was unable to determine the exact sum due for the reasons given above. In the circumstances, the court finds that the best course of action would again be to non-suit the plaintiff in respect of the present claim.

Cost of repairs to a washing machine make Ocean together with the replacement of an electronic panel and in respect of a washing machine make WestPoint to change its water pump inclusive of labour cost. The plaintiffs are claiming the sum of Rs. 8,500 under this item. Plaintiff no. 1 reiterated the averments of the plaint in court and maintained in cross examination that the two washing machines were not in good working order when the defendants left the premises. He produced a quotation in the said sum from a company in the name of Bhoomika Enterprise in support of his averments – Doc E2. I note that usher Mr. Saumtally, who carried out a constat on the premises on the 02 March 2017 at the request of the plaintiffs, observed in his memorandum of

7 constat that only one machine of make Ocean was out of order. The version of the plaintiff is thus in contradiction with the findings of usher Mr. Saumtally.

Defendant no. 1 denied the above averments when he deposed in court and he explained that when he rented the premises, plaintiff no. 2 had informed them that one of the washing machines was out of order and she even apologized for failing to remove same from the premises. However, after that he moved in, he noted that both washing machines were in good working order and he made use of both of them during his stay till the date he vacated the premises. He also explained that at the time of the handing over of the keys to the plaintiffs, Mr Edoo, who was also present, operated both machines in presence of the plaintiffs and both were found to be in good working order. Such fact has been highlighted by Mr. Edoo in his Memorandum of Constat, which was produced in court. Mr. Edoo was not cross examined on the said issue and neither was the version of Mr. Saumtally put to him in court.

I have duly assessed the evidence of both parties on the issue. The evidence on record shows that Mr. Saumtally carried out his “constat & état des lieux” on the 02 March 2017, one day after that the defendants had vacated the premises and handed over the keys to the plaintiffs. The said exercise was also carried out in the absence of the defendants. Bearing in mind such facts, I am of the view that it would not be safe to rely on the said report since the possibility that the premises could have been tampered with between the time that the defendants left same until the time usher Saumtally repaired thereat, cannot be excluded. On the other hand, I note that Mr Edoo carried out his ‘constat’ in presence of both parties, on the very day that the keys were handed over to the plaintiffs and they allegedly made no complaints. Plaintiff no. 1 also affixed his signature on the report. I am therefore satisfied that full weight may be attached to such document.

In light of my above observations, I find that the version of the defendants is more credible than that of the plaintiffs and that I can safely act on the version of the defendants. I wish to add at this juncture that I was quite surprised to note that amongst the various documents that were produced by the plaintiffs in court, there was also a blank template of Doc E2, which seemed to have been produced by the plaintiffs by inadvertence – vide Doc C. The said document bore the stamp of the enterprise and was duly signed. It is indeed very surprising that such document, which is in fact the property of Bhoomika Enterprise, could be in possession of the plaintiffs and the question that one may inevitably ask in the circumstances is for what purpose the plaintiffs had such document in their possession. Given the nature of the document and bearing in mind

8 the circumstances of the present case and the bad blood that exists between the parties, I find that the possibility of concoction on part of the plaintiffs by making use of such document cannot be excluded, thus casting a serious doubt on the veracity of Doc E2. Bearing in mind the above therefore I find that the plaintiffs have failed to establish the present on a balance of probabilities and I accordingly find that the sum claimed is not due and demandable from the defendants.

The amount paid for labour, supply and replacement of a mixer basin The sum of Rs. 900/- is being claimed by the plaintiffs under this item and plaintiff no. 1 produced the copy of an invoice dated 21 March 2017 in the said sum in court. I note here that Mr. Edoo made no mention of any damaged tap in his report. Defendant no. 1 explained in court that after the ‘constat’, few items, including a basin mixer was purchased and handed over to the plaintiffs upon their request. He highlighted that as per the terms of the contract, the maintenance of the water pipes was at the expense of the plaintiffs and as such the plaintiff cannot claim such amount from him. The version of the defendant has remained unchallenged in court.

I have perused the ‘Contrat de bail’ and under paragraph 7.5, the following is stipulated:

“Pendant toute la durée du bail, le bailleur prendra à sa charge toutes les grosses réparations (murs, toiture, plafond …) ainsi que l’entretien et la réparation de la piscine, des fosses septiques, des conduits d’eau et du circuit électrique ». [Emphasis added]

Bearing in mind the unchallenged version of defendant no. 1 in court, I find that the plaintiffs are indeed debarred, in virtue of the above provisions of the agreement, from claiming such costs from the defendants. For such reasons therefore I find that the plaintiffs have failed to establish the present claim on a balance of probabilities.

The cost of other minor repairs to the said premises The plaintiffs are claiming the sum of Rs. 1,142 as minor repairs. However, no evidence in respect of same was adduced in court. I thus find that it could not be established that such sum was indeed due by the defendants.

Cost of removing and fixing tiles, finishing and fixing of 3 lamps and 15 posters The plaintiffs are claiming the sum of Rs. 111,500 under this item and Doc G, which is a quotation in respect of such costs from Northern Plumbing Services Company Ltd was

9 produced in court to substantiate such claim. The plaintiff no. 1 deposed to the effect that the tiles on the premises got damaged because defendant no.2 was carrying out a commercial activity on the premises. He produced several documents – vide Docs C and H – purporting to show that defendant no. 2 was indeed carrying out a trade thereat. In cross examination he however conceded that only the registered office of the said company was found at the address of the rented premises and upon being cornered by counsel, he came up with the version that he had actually witnessed defendant no.2 carrying out her commercial activity on the premises.

Both defendants have denied using the premises for commercial purposes and they remained adamant on their version in cross examination. However, they have not denied that there were cracks on 9 ceramic tiles near the main door of the premises but they attribute same to usual wear and tear of the house.

After assessing the whole of the evidence under the present claim, I find that the version of plaintiff no. 1 cannot be believed. The plaintiff stated in court that he had actually seen the defendant no. 2 using the premises for commercial purposes. However, if indeed such was the case, one would have expected the plaintiffs to aver same in the plaint, but there is no such averment in the plaint. The plaintiffs initially relied only on the documents that were discovered on the premises to establish the commercial activities of defendant no. 2 on the premises. It was only upon realizing that the said documents did not speak in their favour that plaintiff no. 1 came up with his version at the eleventh hour, in an attempt to impress the court. In the given circumstances, I find that the version of the plaintiff cannot be believed.

On the other hand, I find that the defendants remained consistent in their version, which is also supported by Docs C and H. Since the version of the defendants is that the cracks on the tiles were due to normal wear and tear, I find that by virtue of the provisions of paragraph 7.6 of the lease agreement, they are not liable to the plaintiffs.

As far as the claim for the 15 posters is concerned, I find that no evidence regarding same was adduced in court except for Doc G. I find that such document is not sufficient for me to make a finding on the amount claimed.

With regards to the costs incurred for the fixing of the 3 lamps, I find that as per the terms of the lease agreement, such repairs fell under the responsibility of the plaintiffs. Indeed, as per the provisions of paragraph 7.5 of the agreement, “l’entretien et la réparation […] du circuit

10 électrique” is at the expense of the landlord. In the circumstances I find that the plaintiffs are debarred from claiming such costs from the defendants

Bearing the above in mind, I find that the present claim has not been established on a balance of probabilities and such claim is accordingly dismissed.

Repair and servicing of an existing Roller Shutters A claim in the sum of Rs. 10,120 is being made under this item and an invoice in the said sum from Neetoo Industries Co. Ltd was produced in court. The plaintiff no. 1 maintained in cross examination that the roller shutters were not functioning properly when the defendants vacated the premises.

When defendant no. 1 deposed in court, he conceded that the roller shutters were not functioning properly but he explained that it was only due to usual wear and tear and that he forgot to inform the plaintiffs about same. His version was not challenged in cross examination.

The question that arises is whether the defendants were responsible for the maintenance of the roller shutters and whether they were liable to the plaintiff for the costs of repairs. After perusing the lease agreement, I note that paragraph 7.4 provides that:

“Le preneur s’engage à informer rapidement le bailleur de tout accident ou défectuosité ayant notemment trait aux fosses sceptiques, drains, canalisations, réservoir à eau, système électrique, piscine, chauffe eau …, afin que le bailleur puisse y remédier aussitot.” [Emphasis added]

From the above provisions of the contract, I find that the maintenance and repairs of an electric system fell under the responsibility of the landlord. The question that prompts itself is whether the term electric system would include the roller shutters. No evidence in that respect was adduced in court except for the report of Mr. Saumtally where the issue of the roller shutters has been addressed in the following terms: “GARAGE: The manual electric system control for the roller shutters of the garage was broken and out of use as shown in photo 7.”

Bearing in mind the above I am satisfied that the term electric system would also include the electric system of the roller shutters. Hence, since the costs for repairs and maintenance of the

11 electric system fell within the contractual obligations of the plaintiffs, I find that such sum cannot be claimed from the defendants. I therefore find that the plaintiffs have failed to establish on a balance of probabilities that the sum claimed is due and demandable from the defendants.

Quotation for change of damaged fittings in the premises The claim under this item is in the sum of Rs. 41,175. However, no evidence in respect of same was adduced in court and I thus find that it could not be established that such sum was indeed due by the defendants.

Damages and prejudice suffered and moral damages for trouble and annoyance In light of my above findings, I do not find it appropriate to make any finding in respect of the present claim.

For all the reasons given above and since it appears that the plaintiffs have an arguable case in respect of certain claims as observed above, this court is of the view that the proper course of action would be to non-suit the plaintiffs in order not to penalize them or deprive them of an opportunity to come with a fresh claim. The plaintiffs are therefore invited to elect whether the present case should be non-suited or whether it should be dismissed. I make no order as to costs.

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