Kan Sabnani and Another v Ramesh Lachmandas and Another

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 17 May 1994
• Neutral Citation: [1994] SGCA 72
• Date: 17 September 1994
• Docket Number: Civil Appeal No 141 of 1993
• Year: 1994
• Published date: 19 September 2003
• Plaintiff Counsel: KS Lo and Andrew Wu (Allen & Gledhill)
• Citation: [1994] SGCA 72
• Defendant Counsel: Davinder Singh and Andre Maniam (Drew & Napier),Chida Peri (Chida Peri & Co)
• Court: Court of Appeal (Singapore)
• Subject Matter: Misjoinder of second plaintiff,Whether payment to one party would discharge debt owed to both,Credit and Security,Civil Procedure,Discharge,Costs,Defence unaffected by misjoinder,Loans of money,Whether award of costs due to defendants from second plaintiff despite success of first plaintiff,Loan from joint account as joint tenants,Money and moneylenders

Cur Adv Vult

This appeal arose out of a claim for the sum of $188,000 as the balance of a loan of $300,000 lent by the first appellant and his brother, Ramesh Sabnani (since deceased), to the respondents. The second appellants are the administrators of the estate of Ramesh Sabnani. The respondents were, at all material times, partners of a concern known as Lal`s & Co. Initially, when the action was commenced, the appellants claimed only against the first respondent on the basis that the loan was made personally to him. However, in his defence, the first respondent averred, inter alia, that the loan was made to the partnership firm by the name of Lal`s & Co (Lal`s) of which he and the second respondent were partners. Subsequently, on application by the first respondent, an order was made giving leave to the appellants to join the second respondent as a co-defendant and to amend the statement of claim. Pursuant to that order, the second respondent was joined as a co-defendant and the appellants amended the claim. There was a further amendment made at the commencement of the trial. The appellants` primary claim was against the first respondent personally and, in the alternative, against both the respondents as partners of Lal`s, in the event that it was held that the loan was one made to Lal`s.

The respondents set up separate defences to the claim. The first respondent`s defence was that he had paid to the appellants a total sum of $117,000 as principal and a further sum of $27,000 by way of interest or alternatively as further part payment of the principal, and admitted that only a balance of $6,000 was owing. The second respondent`s defence was that he had paid his share of liability for the loan in the sum of $150,000. He averred that this amount was paid to one Arjan Sabnani (Arjan) at the request and on the instruction of Ramesh Sabnani and that was in payment of his share of liability, and, in consequence, he was discharged from further liability in respect of the loan.

The action was tried before Lim Teong Qwee JC. He allowed the claim of the first appellant only in the sum of $33,000 with interest and dismissed the claim of the second appellants. He found that the loan of $300,000 was one made to Lal`s and was not a personal loan to the first respondent only, and that the loan came from moneys held by the first appellant and Ramesh Sabnani as tenants in common. He accepted the evidence of the first respondent and found that he had repaid the first appellant a total sum of $117,000. As for the defence by the second respondent, the learned judicial commissioner found that Arjan had asked Ramesh Sabnani for a loan of $150,000 and the latter had agreed to give the loan and had instructed the second respondent to pay to Arjan a sum of $150,000 which was to be in part payment of the loan, and that, in accordance, with those instructions the second respondent had paid the sum of $150,000 to Arjan. He then held that Ramesh Sabnani`s share of the loan had been paid and discharged by the second respondent`s payment to Arjan, but the first appellant`s share of the loan was unaffected by that arrangement, and the first appellant was not entitled to claim Ramesh Sabnani`s share of the loan. The learned judicial commissioner ordered the first and second respondents to pay to the first appellant the costs of the action, and the second appellants to pay to the first and second respondents the costs of their defence. He made a further order that, as between the appellants and the respondents, there should be a set-off in respect of costs and that only the difference should be paid either by the first and second respondents to the first appellant or by the second appellants to the first and second respondents.

Against the decision of the learned judicial commissioner, this appeal has been brought. Before us, the appellants attacked several findings of fact made by him, and their arguments are briefly as follows. First, the loan of $300,000 was a personal loan to the first respondent and the learned judicial commissioner erred in finding that it was a loan to Lal`s. Secondly, no interest was payable on the loan and that there had been no payment of interest made by the first respondent to Ramesh Sabnani as found by the learned judicial commissioner. Thirdly, the amount repaid by the first respondent was only $112,000 and not $117,000. Lastly, Ramesh Sabnani had never agreed to give a loan of $150,000 to Arjan and had not instructed the second respondent to pay the sum of $150,000 to Arjan`s account as part payment of the loan. These arguments were directed to the findings of fact made by the learned judicial commissioner and were wholly without any merit whatsoever. We propose to dispose of them briefly as follows.

On the issue of the loan, the trial judge found that the first appellant and Ramesh Sabnani intended to lend a sum of $300,000 to Lal`s and not to the first respondent personally. There was ample evidence to support this finding. First, the appellants` bank cash-book recorded the loan as `cheque to Lal`s & Co $300,000`; second,...