Supreme Court of Mauritius, 25 juin 2020, 2020 INT 77 – Judt-MOC- Proxifresh v Forzoo Cn 1054-2019- Me Cristelle Parsooramen – 25 Ju 2020

Judt-MOC- Proxifresh v Forzoo Cn 1054-2019- Me Cristelle Parsooramen – 25 Ju 2020

2020 INT 77

PROXIFRESH Co. LTD v/s Mrs Charlene Forzoo

JUD/MOC/ IC/CIV/1054/2019

THE INTERMEDIATE COURT OF MAURITIUS (CIVIL SIDE)

In the matter of:-

PROXIFRESH Co. LTD

Plaintiff v/s

Mrs Charlene Forzoo

Defendant JUDGMENT:

This is a claim for reimbursement and damages following a misappropriation of funds by the defendant. Service was effected by substituted service after the plaint with summon was served on nephew at common domicile. Thereafter, the plaint with summon was affixed on defendant’s gate, following

which she left default. No plea was put by the defendant since there was no appearance on her behalf. The plaintiff proceeded to make out its case. The plaintiff was duly represented by its finance Manager, Mr Chellin.

Counsel for the plaintiff opened her case by calling PC Laviolette who deposed and produced a certified true copy of a declaration made by the representative of the plaintiff company on 14 May 2018 marked as Doc A. Although the summon made mention ‘to depute the relevant officer to produce and to depose thereon” the police officer intimated to Court that he was not involved in the enquiry and he was deputed only to produce extract copy of the occurrence book and is thus unable to enlighten the Court as to the police enquiry. He was then released.

The main witness for the plaintiff company was called and he testified and produced several documents which were produced and marked as Doc B to T respectively. He explained that the defendant was employed as ‘assistante personelle’ to Managing Director and among her duties she was involved in the purchase of stationaries and equipment for the plaintiff. The witness also detailed the duties of the defendant. He also explained how the ‘pot aux roses’ was discovered within the company. All happened when there was an invoice of Rs1500 which rose doubt, thereafter the duplicate receipt was checked at the hardware shop in question, the witness testified that it was found forged as the original receipt mentioned the sum of Rs500. An internal enquiry was then conducted where it was revealed that the defendant forged another receipt and fabricated fake invoices/receipts. By that time, the defendant had voluntarily submitted her resignation to the company. Internal enquiry was carried out where the witness testified that the defendant’s computer was checked and more fraud were discovered and he made a report detailing all those payments where fake invoices were fabricated and where the company had already disbursed money.

The witness certified that on two occasions, the defendant had forged receipts and several fake invoices were made requesting payments from the plaintiff company. The document produced by the representative of the plaintiff are listed below: Doc B- Certificate of Incorporation for plaintiff company ( certified true copy) Doc C – Business of Registration Card ( certified true copy) Doc D – unsigned contract of employment Doc E- Salary slip Doc F- Forged receipt showing amount of Rs1,500 Doc G- Email from the defendant acknowledging the fraud Doc H- Report computing the fraud Doc J – Second forged receipt showing amount of Rs9,150 Doc K-N, P, Q1- fake receipts Doc Q – real receipt as opposed to Q1 Doc R – Fake salary slip Doc S – OB no for declaration made at the police on 15/5/2018 Doc T – Copy of ‘Mise en Demeure’ dated July 2018 and return of Usher – good service effected

The witness certified that the defendant misappropriated a total sum of Rs80,831.50 from the plaintiff which has until now remained unpaid. A ‘mise en demeure’ was duly served on the defendant marked Doc T to which latter did not comply with. The company is also seeking moral damage for a sum of Rs200,000

and when the witness was questioned on this amount, the witness stated that he had to re-assure the suppliers to continue dealing with them. In the light of the evidence adduced so far, we are concerned with only 2 ( two) hardware shops and there is no evidence to show that they have been dealing with those suppliers in the past for them to re-assure the suppliers. Besides, no credit was given by those hardware shops as the payments were made by the defendant and then the company reimbursed her. This Court does not find how the sum of Rs200,000 for moral damages was reached in such situation. This Court therefore finds that despite the fact that the defendant has left default, the plaintiff has to prove its case on a balance of probabilities and to substantiate its claim accordingly. He further added that it is for the time and effort put in by the company to find the fraud and the whole amount which has been misappropriated. This Court finds that this is more a prejudice caused than moral damages. There is also no prayer for the tablet.

I have addressed my mind to S.16 (1) of the District and Intermediate Courts (Civil Jurisdiction) Act which is clearly spelled out as follows: “Where on the day so fixed in the summons, or at any continuation or adjournment of the Court or cause in which the summons was issued, the defendant does not appear, or does not sufficiently excuse his absence, the Court, upon the proof of the service of the summons, may give judgment in terms of the plaint or, where the cause includes a claim for substantial damages, proceed to the hearing of the witnesses and trial of the cause on the part of the plaintiff only, and in either case, the judgment shall, subject to subsection (2), be as valid as if both parties had attended.”

And also the following extract from the case of D.Hurnam v K.B.Bholah & Anor [2009] SCJ 265:

“… A Court of law is under a positive obligation to ensure that any judgment given is soundly grounded both in law and on the facts of the case before it. This obligation is not in any manner reduced by the fact that the judgment is a judgment by default. On the contrary, that obligation assumes all its importance by that fact inasmuch as the absence of pleadings and enlightenment in law puts a burden on the

court to ensure that as a court of law, any judgment may only be firmly grounded in law.” (underline is mine)

In the light of the above evidence adduced before this Court, this Court finds that the issue of ‘faute’ by the defendant has been duly proved on a balance of probabilities. By the acts and doings of the defendant, this definitely amounts to ‘faute’. Furthermore, the sum of Rs80,831.50 has been duly accounted for and the documents produced tally with the total amount of funds misappropriated by the defendant. The witness has certified under oath that this whole amount was paid to the defendant and none of the documents produced or any evidence adduced on this issue have been challenged. This Court finds that this was successfully proved by the plaintiff on a balance of probabilities. However, for the sum of Rs200,000 being claimed as moral damages, this Court finds that same has not been proved on a balance of probabilities and not properly canvassed. But as stated earlier, the witness should have adduced more evidence to substantiate the moral damages suffered by the company. He also elaborated on the time put by the staff in tracing and finding the fraud. This goes more towards prejudice suffered by the company rather than moral damages.

For the reasons given above, this Court finds that the case has been proved on a balance of probabilities in respect to the total sum of Rs80,831.50. The Court orders the defendant to pay forthwith to the plaintiff the total sum of Rs80,831.50 with interest at legal rate as from the time the plaint was duly served – i.e date the plaint with summon was affixed on defendant’s gate until the time the full payment has been made. Costs is awarded in favour of plaintiff.

P.V. Veerabudren Magistrate at Intermediate Court Filed and delivered on 25 th June 2020