Abdul Salam Asanaru Pillai (trading as South Kerala Cashew Exporters) v Nomanbhoy & Sons Pte Ltd

CourtHigh Court (Singapore)
JudgeSundaresh Menon JC
Defendant CounselLawrence Teh, Mar Seow Hwei, Ajinderpal Singh and Derek Kang (Rodyk & Davidson)
Subject MatterWhether facts sufficing to give rise to such a degree of proximity as to warrant raising of equitable set-off by one party against claims of the other,Civil Procedure,Court requiring some demonstration of commitment to claimed defence on part of defendant,Summary judgment,Leave to defend claim,Whether appropriate to impose condition
Date30 March 2007
Plaintiff CounselTan Teng Muan, Alia Mattar and Loh Li Qin (Mallal & Namazie)
Docket NumberSuit No 97 of 2006 (Registrar's
Published date02 April 2007

30 March 2007

Sundaresh Menon JC

1 The plaintiff, Abdul Salam Asanaru Pillai trading as South Kerala Cashew Exporters is based in India and engaged in the business, among other things, of trading in raw cashew nuts. In 2005, the plaintiff had a number of dealings with the defendant, a company incorporated in Singapore and known as Nomanbhoy & Sons Pte Ltd. Disputes arose out of those dealings and in February 2006, the plaintiff filed proceedings in Singapore seeking recovery of various amounts.

2 The defendant responded to the commencement of proceedings in various ways. One of the steps it took was to apply for security for costs. The defendant succeeded before the learned assistant registrar in obtaining an order for security to be provided below. The plaintiff appealed against this. At the same time, the plaintiff applied for summary judgment of its claims and submitted that its application for summary judgment and the appeal against the order for security should be heard together and the matter proceeded in this way before me.

3 Following arguments, I made certain orders on 2 August 2006 in respect of the application for summary judgment. As to the order for security to be furnished, I allowed the appeal and set aside the order below.

4 Both sides requested an opportunity to present further arguments which I acceded to. Following the further arguments, I modified my earlier orders made in relation to the summary judgment application but not the order I made on the question of security for costs.

5 The defendant appealed against the orders I made on the summary judgment application. However, after I had prepared a draft of this judgment setting out the grounds for the decision I had earlier made, I was informed that the defendant had decided for “pragmatic” reasons not to pursue the appeal. Nonetheless, I thought it might be useful for me to set out the principal reasons for my decision in relation to the plaintiff’s application for summary judgment.

Factual background

6 The plaintiff’s claims arose out of three sets of dealings between the parties although the defendant was at pains to emphasise that these dealings were to be seen in the context of a relationship of some length. The dealings in question were:

(a) a series of 4 contracts between the parties;

(b) a contract that was referred to in the arguments as the “KSCDC contract” and which is so referred to here; and

(c) a transaction that was referred to in the arguments as the “Abbas contract” and which is so referred to here.

7 All of these transactions related to the sale of raw cashew nuts. Although there is a suggestion by the plaintiff in the documents that there was a settlement of accounts between the parties in relation to these transactions, it was made clear in the course of arguments by Mr Tan Teng Muan who appeared for the plaintiff that he was not basing his application for summary judgment on any allegedly agreed settlement of the accounts.

8 The argument therefore turned on the contentions advanced in relation to the various transactions I have referred to above. As to this, the defendant’s primary contention (as noted above) was that these transactions were to be seen in the context of a longstanding commercial relationship with dealings between the parties and the 2nd defendant by counterclaim, a person named Vallinayagam Dheenathayalavel (referred to in the arguments and here as “Mr Dayal”) over a period of some years. It was submitted that this reached back 10 years or more and that during that time a relationship of trust and confidence had arisen. It was further submitted that this relationship had been taken advantage of by the plaintiff in the context of the June/July 2005 season for the sale of raw cashew nuts and this caused the defendant considerable problems, loss and damage. It was therefore contended that this was not a case suitable for summary judgment.

9 The plaintiff’s claim begins with a series of four contracts which it alleges it entered into with the defendant for the purchase by the plaintiff of raw cashew nuts. According to the plaintiff, three of these contracts for a total of 1800MT of raw cashew nuts were later evidenced in a contract no. NS-0628/06/2005 dated 14 June 2005 (“Contract 628”). Although the defendant accepted that the parties had entered into Contract 628, it disputed the plaintiff’s account of the circumstances under which it came into being.

10 The fourth contract in this series was contract no. NS-0616/06/2005 dated 9 May 2005 (“Contract 616”) for the purchase by the plaintiff of 500MT of raw cashew nuts. These raw cashew nuts were all shipped on the vessel, The Dellagrazia, which set sail from the port of Bissau, Guinea-Bissau to Tuticorin, India on or about 14 June 2005.

11 In relation to the shipments on The Dellagrazia relating to Contracts 628 and 616, the plaintiff alleged that there were deficiencies of quality as well as a shortfall in the quantity. These aspects of the plaintiff’s claims are referred to as the “quality claim” and the “shortfall claim” respectively. The defendant did not deny the shortfall in quantity but disputed any alleged deficiency as to quality.

12 Also shipped on that vessel were raw cashew nuts sold under two further contracts, NS-0591/04/2005 and NS-0608/05/2005 dated 21 April 2005 and 3 May 2005 respectively (hereinafter referred to as “Contract 591” and “Contract 608” respectively). These were each for the sale of 3000MT of raw cashew nuts and were later overtaken by a proposal from the plaintiff that the shipment be delivered to the Kerala State Cashew Development Corporation Ltd (“KSCDC”) instead of to the plaintiff, on terms that the KSCDC would pay a sum higher than that contemplated under the original contract. The defendant was to remit the surplus amount to the plaintiff. There was some suggestion that the transaction was structured in this way to enable the plaintiff to recover some money it was owed by the KSCDC.

13 According to the defendant, it agreed to enter into the KSCDC contract because it trusted the plaintiff and because the plaintiff guaranteed that the KSCDC would pay the amounts due. It was therefore doing the plaintiff a favour in entering into the KSCDC contract.

14 As it turned out, The Dellagrazia arrived at Tuticorin on 21 July 2005 but for a variety...

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