Days International Ltd v. Nathal Kaoidos Modi (Male) and Another

HCA001041/1987

IN THE HIGH COURT OF HONG KONG

ACTION NO. 1041 OF 1987

BETWEEN

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Coram: Deputy Judge Litton, Q.C. in Court

Date of hearing: 23 January 1989

Date of delivery of Judgment: 23 January 1989

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J U D G M E N T

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1. The Plaintiff is a Hong Kong company. The first and second Defendants are husband and wife; I shall refer to them as Mr and Mrs Modi. The Plaintiff's claim against Mrs Kodi is on a personal guarantee dated 4th June 1986. By the guarantee Mrs Modi guaranteed her husband's debts incurred as a result of trading transactions between the plaintiff company and two Sudanese companies. The writ in this case is dated 21st February 1987. Until 18th January this year Mrs Modi was represented by solicitors, but on 18th January 1989 she filed a notice to act in person in these proceedings. By a formal admission of fact, filed by her solicitors, Mrs Modi admitted in these proceedings the underlying commercial transactions which gave rise to her husband's personal indebtedness and it is formally admitted by her that as at 20th February 1987 (that is, the day before the issue of the writ) Mr Modi owed the Plaintiff the sum of US$140,546.52. The execution of the guarantee dated 4th Juan 1986 by herself is also formally admitted by her in these proceedings. What Mrs Modi alleges by way of defence to the claim is that she was induced by duress to sign the guarantee and that accordingly the guarantee is unenforceable as against her. There is also a plea of revocation.

2. As a matter of history, the setting down for trial of these proceedings has been deferred on two previous occasions at the second Defendant's request and this cases was eventually set down for trial in the fixture list at the time when Mrs Modi was still represented by solicitors. She has therefore had ample notice of the trial date, but this morning when the action was called on for trial, Mrs Modi has not appeared.

3. Technically, on the basis of the admissions which have been made, the Plaintiff was entitled to judgment on the claim. However, because of the seriousness of the allegations in the defence, Mr Mitchell, counsel for the Plaintiff, has called two witnesses to depose to the circumstances under which the guarantee was executed on the 4th June 1986. This took place at the Taj Mahal Hotel in Bombay. The two witnesses were Mr Nanik Dayaram and Mr Tirathdas Mohnani. Having heard their evidence I am entirely satisfied that there was no impropriety of any kind attending the execution of the guarantee by Mrs Modi. As to the alleged revocation of the guarantee by her I am satisfied that the letter of revocation, though dated 13th February 1987, was not received until 23rd February 1987, two days after the issue of these proceedings. The letter of revocation though purportedly written in Sudan was sent by post from London. The postmark on the envelope is dated 17th February 1987. The purported revocation cannot, in these circumstances, affect the liability of Mrs Modi on this claim. There will therefore be judgment against the second Defendant in the sum of US$140,547.52 and I shall hear counsel on the question of interest and costs.

4. [Having heard counsel, I order that interest be paid on the sum of US$140,547.52 from the date of the writ at 2% above prime lending rate. The Plaintiff to have costs of this Action.]

Representation:

Mr D Mitchell instructed by (M/s Johnson, Stokes & Master) for Plaintiff

2nd Defendant: Kokila Nathalal MODI absent.