Supreme Court of Mauritius, 1 août 2024, 2024 INT 182 — Chengee B v Eckburally A. A. Y.

Chengee B v Eckburally A. A. Y.

2024 INT 182

CN: 869/23 THE INTERMEDIATE COURT OF MAURITIUS (CIVIL DIVISION) In the matter of:- Brijesh Chengee Plaintiff v/s Mr Abdool Ahmad Yashin Eckburally Defendant JUDGMENT

1. The Plaintiff is praying for a judgment ordering condemning the Defendant to pay to the Plaintiff the sum of Rs 267,000 representing the amount which the Plaintiff has allegedly overpaid to the Defendant for the work and an amount of Rs233,000 as moral damages suffered by the Plaintiff as a result of the Defendant’s breach of contract, together with interests running at the legal rate from the date of service of the said notice mise en demeure dated 30 October 2023 on the Defendant until the date of final payment.

2. The present case was called on the 29 of January 2024. Since there was no service on the Defendant the matter was postponed to the 14 February 2024. On that day, the return of the usher was that the “plaint with summons was duly served by me, the undersigned registered usher upon Mr. Abdool Ahmad Yashin ECKBURALLY by leaving a true and certified copy thereof for him in his absence with his wife Mrs Manisha found at their common domicile situate art Heerah Lane, Belle Vue Maurel.”

3. Despite the service on his wife at common domicile, the Court ordered for substituted service and same was effected by posting up of the Proecipe on 23 February 2024 at the residence of the Defendant.

4. Since the Defendant was again absent the matter was fixed for make out.

5. A notice of Trial was duly served on the Defendant by leaving a true and certified copy with him in person found at his domicile.

6. Despite the several service and notices, the Defendant has failed to show any interest to defend the present case. In the circumstances, Plaintiff was allowed to make out its case pursuant to Section 16(1) of the District and Intermediate Courts (Civil Jurisdiction) Act.

7. Plaintiff testified to the effect that he entered into an agreement with the Defendant for the construction of a first floor of his house for a sum of Rs2,296,548. The contract between the Plaintiff and the Defendant consists of a verbal agreement, a quotation and an initial agreement (Doc A and B).

8. The Plaintiff further stated that he took a loan with the MauBank to finance the construction in lite (Doc C).

9. It is undisputed that the following payment were made to the Defendant by the Plaintiff:

a. Rs140,000 in cash withdrawn according to Plaintiff from his account held at the Mauritius Commercial Bank (Doc J filed on 23 May 2024); b. Rs460,000 by bank transferred to the Defendant through Plaintiff’s account held with MauBank Ltd as follows: i. Rs15,000 on 2 March 2023; ii. Rs15,000 on 6 March 2023; iii. Rs7,000 on 10 March 2023; iv. Rs5,000 on 14 March 2023; v. Rs25,000 on 21 March 2023; vi. Rs20,000 on 31 March 2023; vii. Rs5,000 on 31 March 2023; viii. Rs8,000 on 12 April 2023; ix. Rs25,000 on 14 April 2023; x. Rs50,000 on 20 April 2023;

xi. Rs50,000 on 25 April 2023; xii. Rs100,000 on 2 May 2023; xiii. Rs50,000 on 10 May 2023; xiv. R25,000 on 12 May 2023; xv. Rs60,000 on 16 May 2023; and c. Rs20,000 transferred to the Defendant’s wife upon request of Defendant as stated by the Plaintiff.

10. Mr Sadeo testified and produce his report (Doc J filed on 8 April 2024) to the effect that according to him the work completed until now is valued at Rs353,000/-.

11. In view of the facts of this case, the documents produced, the testimonies of the Plaintiff and the chartered quantity surveyor, Mr Sadeo, I find that ample evidence has been adduced to show that the Plaintiff has proved his case on a balance of probabilities to the effect that the Defendant was paid Rs267,000 (Rs140,000 + Rs480,000 — Rs353,000) more than the work he has done.

12. I have also taken into consideration the prejudice suffered by the Plaintiff in the present case. I find that an award of Rs15,000 is a just and reasonable amount as damages for all the prejudice suffered by the Plaintiff.

13. With regards to interest, the Plaintiff has claim interest as from date of service of notice mise en demeure. Even thought the Plaintiff has averred that that a notice mise en demeure has been served on the Defendant, no such notice has been filed in court.

Conclusion

14. I therefore give judgment for the Plaintiff condemning and ordering the Defendant to pay to the Plaintiff the sum of

a. Rs267,000 together with interest thereon as from the entry of the present Plaint until the date of final payment and b. Rs15,000 as damages. c. With costs.

U. Rawat Neerooa

Magistrate Intermediate Court Delivered this 1 of August 2024