England and Wales Family Court Decisions (other Judges)

IN THE BIRMINGHAM CIVIL AND FAMILY COURT

		33 Bull Street Birmingham, B4 6DS
		20/12/2017

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JUDGE WEBB :

1. Before me today I have the case of Mr Jayanti Chouhan versus Mr Marius Suliga and Mrs Justina Suliga.

The Background

2. Mr and Mrs Suliga were tenants of Mr Chouhan at a property at 120 Alfred Road, Handsworth in Birmingham between 28^th August 2015 and 26^th May 2016. The rent payable was £495 a month during their period of occupation.
3. In this matter, Mr Chouhan has obtained a judgment against Mr and Mrs Suliga, dated 13^th March 2017. Subsequently he has applied for a third party debt order, which was made on an interim basis, then on a final basis and then the money was withdrawn from Mr and Mrs Suliga's account pursuant to the order. It is absolutely clear that when the third party debt order was applied for, the address given by Mr Chouhan for Mr and Mrs Suliga was the address they had previously occupied at 120 Alfred Road and so that was an address at which they did not live at the time those applications were made. Mr Chouhan as their former landlord would have been aware they did not live there at that time.
4. Accordingly, when the money disappeared from their account that was the first Mr and Mrs Suliga knew of the third party debt order. Accordingly, they applied by application dated 10^th October 2017, firstly, for the third party debt order to be reversed and, secondly, for the judgment against them to be set aside.
5. The matter came before District Judge Rouine on an emergency basis on 11^th October 2017. He was satisfied that the third party debt order had been served on the wrong address, so he rescinded the final third party debt order and replaced it with an interim third party debt order and he listed the matter to be further considered by me.
6. That matter came before me on 4^th December. At that point, it was clear that this was a difficult dispute, where the parties both alleged bad faith on the part of the other party. For that reason, I felt it appropriate to adjourn the case until today for proper hearing. In the meantime, I received a witness statement from Mr and Mrs Suliga, dated 10^th December and a response on behalf of Mr Chouhan dated 18^th December.
7. I have also had the opportunity to consider three files which are under the following case reference numbers: B1PP075C, C9QZ0663, and C2PP1091.
8. Today the parties have appeared before me in person and I have taken evidence on oath from both parties, having previously warned them that to provide incorrect or dishonest information before the Court could amount to a contempt of court or potentially the criminal offence of perjury.

The Litigation History

9. Before I summarise the parties' evidence, I will summaries the position in relation to the three cases. The first case in time is B1PP075C. This was issued on 21^st November 2015 and was a claim for possession of the property brought by Mr Chouhan. That matter came before Deputy District Judge Talbot on 8^th January 2016 and he dismissed the claim. From a brief consideration of the notes, it appears that he was not satisfied as to the appropriate noticed being served. I can move on from that claim. It plays no further part in these proceedings.
10. The second case in time was case C9QZ0663, which was issued on 27^th January 2016 through the County Court Money Claim Centre at Northampton and this was a simple money claim for rent arrears. It should be stated that Mr and Mrs Suliga accepted they were in rent arrears. What they have always indicated is they were not happy to pay their rent in cash and, therefore, they withheld the rent until such time as Mr Chouhan was able to provide them with a bank account into which they could pay the rent. Those bank account details have never been provided.
11. On 9^th February 2016, they entered an Acknowledgment of Service confirming they had received the claim form. They were dismayed to find out that on 17^th February 2016 judgment had been entered against them, apparently on their own admission. They are adamant that at no point did they make that admission prior to that date. They therefore contacted the County Court Money Claim Centre and the money claim centre asked Mr Chouhan to provide proof of the admission. That remains an area which I cannot make any findings in relation to. I do not have the Northampton file and it remains an uncertainty as to why judgment was entered on 17^th February. I am going to park that issue because it ceases to be relevant for in due course judgment was again entered in this case.
12. In giving evidence today Mr and Mrs Suliga accept now that they did make an admission as to the debt on either 23^rd or 24^th February 2016 and they wrote to the Court to indicate they accepted that they owed Mr Chouhan some money.
13. In the meantime, Mr Chouhan had issued a third set of proceedings under case C2PP1091. This was a set of proceedings in relation to possession of the property because, of course, claim C9QZ0663 was a simple money claim and if Mr Chouhan wished his property back he needed to issue possession proceedings.
14. The matter came before Deputy District Judge Caun on 18^th April 2016 and both parties attended. This hearing only dealt with the possession claim because the money claim was not subject to any defence and it was not going through the Court system in Birmingham. At the hearing, an order was made by Deputy District Judge Caun stating the case would be adjourned on the basis that Mr and Mrs Suliga would make a payment of £3,465 by the 5^th June.
15. By this point, Mr and Mrs Suliga had little trust of Mr Chouhan, so they went through a process of extreme care in relation to how they made the payment. They have provided a witness statement which is exceptional in its detail and what they state is that they raised a banker's draft in the sum of £3,465. They then went to the post office and they videoed putting the banker's draft into an envelope, putting the address on the banker's draft, handing it to the clerk and paying for Recorded Delivery to deliver to Mr Chouhan.
16. I return to the Court proceedings. The possession proceedings under case C2PP1091 had continued. The reason why they had continued is that Mr and Mrs Suliga had raised issues in relation to the protection of the deposit and what they regarded as harassment on the part of Mr Chouhan. That matter came before the Court on 6^th January 2017, where District Judge Truman approved a consent order.
17. At that point, Mr Chouhan was represented by counsel and Mr and Mrs Suliga represented themselves and the terms of that order read as follows:
18. "Upon hearing counsel for the claimant and the defendants in person and upon it being agreed, the following order acts as full and final settlement of all claims arising out of case number C2PP1091 and upon the claimant agreeing to withdraw his claim for possession of the property at Flat 2, 120 Alfred Road, Handsworth, and to withdraw his claim for rental arrears and damage to the property, and upon the defence agreeing to withdraw their counterclaim for all (inaudible) to their defence, each party had permission to withdraw their claims."
19. So that should have resulted in a conclusion of all matters.
20. However, it did not because it is clear that Mr Chouhan re-approached the County Court Money Claim Centre to ask for judgment in Case C9QZ0663 and the County Court Money Claim Centre issued judgment on 13^th March 2017. Of course, it was quite appropriate for them to do so because they had Mr and Mrs Suliga's admission they owed the money from February 2016 which had lain dormant on the file whilst the other litigation continued.
21. Then there was application on 1^st May for a third party debt order, giving the date of 1^st May and the address of 120 Alfred Road. The matter came before Deputy District Judge Parker on 18^th July 2017. That judge made an interim third party debt order and then it came before me on 8^th September 2017, when Mr Chouhan appeared before me and he asked for the interim order to be made permanent, or final. Given that at that point I had a valid judgment and none of the background facts I made that order. Under the final order, the bank took the money out of Mr and Mrs Suliga's account and paid it to Mr Chouhan.
22. Mr and Mrs Suliga state that of course the money taken under the third party debt order is for the same debt as covered by the earlier banker' draft. They state that they have in effect paid twice.
23. As I indicated, I took evidence from the parties. Much of the evidence supports what has been said. Very significantly, Mr Suliga confirmed that when he thought about it carefully, he had made an admission in the earlier claim and so by doing so, he withdrew the allegation that Mr Chouhan had forged his signature. He has to accept that the signed the document. That same acceptance was given by his wife.
24. However, he was very clear that he had made all payment of all monies owed to Mr Chouhan. A month's rent was paid in advance, a deposit was paid and the banker's draft for £3,465 clearly covers nine months' rent. He says how on earth does he have to pay a further £3,000?
25. When Mr Chouhan gave evidence, he accepted that he had received the banker's draft. What he states happened is that he accepted he signed for the bankers draft on 23^rd April 2016. At the point a bankers draft is raised by the bank the money leaves the account of the person who makes the banker's draft. It then becomes as good as cash. You can take it to the bank and withdraw cash, you can sign it over to another person and they can withdraw cash, or you can pay it into a bank account. What Mr Chouhan's evidence on oath is as follows:
26. He went to RBS on Colmore Row, Birmingham within days of receiving the banker's draft. He was told by the bank they would not honour the banker's draft and that he would need to speak to Mr and Mrs Suliga. He indicated that he did not want to speak to Mr and Mrs Suliga, who were still living at his property at that point, because he had been advised by his lawyers not to speak to them. He indicated he could not recall whether he wrote to them or not.
27. The situation then goes completely cold. What Mr Chouhan says to me is that he had some correspondence with RBS and that he has a file where RBS confirm the banker's draft was stopped in some manner. He was unable to produce any of this documentation to the court today despite filing a detailed response to Mr and Mrs Suliga's witness statement. I asked him if that were the case, why on 6^th January 2017 he was prepared to conclude matters; the terms of compromise in that claim clearly state there were no outstanding rent arrears. That is the evidence I have had before me.
28. The law I must apply is set out in the Civil Procedure Rules Part 13, which reads:
29. "Cases where the Court must set aside a judgment. A Court must set aside a judgment if the judgment is wrongly entered and includes Section C, where the whole of the claim is satisfied before judgment was entered."
30. I remind myself that a party who seeks to advance facts before me must do so, so that the burden on them is to prove that the fact was more likely to be true than not. Mr and Mrs Suliga advanced to me that the judgment was paid. It is for them to prove that on the balance of probabilities. I have no difficulty in finding that they have proved that on the balance of probabilities before me. The process by which they evidenced the sending of the banker's draft is superbly evidenced, so much so that Mr Chouhan has had to accept receipt of the banker's draft.
31. I find Mr Chouhan totally unconvincing in his description of the process by which he attempted to cash the banker's draft. The following facts indicate to me that that was completely untrue.
32. Firstly, it does not reflect the operation of a banker's draft in reality. Secondly, the absence of any correspondence when he suggests the bankers draft was not honoured appears to be ridiculous and thirdly, when he appeared at this Court on 6^th January 2017, assisted by counsel, he accepted that no money was owed.
33. If I am wrong, I would consider the case under the provisions of Section 13 (3), which involves cases where the Court has a discretion as to setting aside a decision. It appears to me the defendant has a real prospect of success in defending this claim on the basis of the facts I have set out above, so I set aside the judgment.

Wider Issues

34. I then look at the process by Mr Chouhan has obtained a third party debt order. I am extremely concerned that seven or eight months after receipt of payment, Mr Chouhan writes to the Court to indicate he wishes judgment and then once he has obtained a further judgment (based on a year old admission given under different circumstances) he applies for an interim third party debt order, which he full well knew would never come to the attention of Mr and Mrs Suliga. So my colleague, Judge Rouine, has already set aside the final third party debt order. I set aside the interim third party debt order, which District Judge Rouine has put in place.
35. I set aside both judgments in this case, the mysterious judgment of 16^th February 2016 and the judgment of 17^th March 2017. The money should never had been withdrawn from this couple's bank account. I am going to order a return of that money within seven days and I am going to list the matter for review before me to decide how to further progress the matter in light of my findings as to the evidence I have heard before me.
36. What is the exact figure that Mr and Mrs Suliga had withdrawn from their bank account?

INTERPRETER: Could you repeat this, sorry?

JUDGE WEBB: What is the figure they had withdrawn from their bank account?

INTERPRETER: £3,169.71.

JUDGE WEBB: What is the fee they have had to pay to bring this matter to Court? For the application to set aside the judgement.

INTERPRETER: For today's hearing or altogether?

JUDGE WEBB: No, for today's hearing. To bring the case to Court, you had to pay money, when you made your application. When you made the application in October, did you not have to pay the Court some money?

INTERPRETER: Mr Chouhan withdrew all our money from that account.

JUDGE WEBB: So you were given a fee remission?

MRS SULIGA: Yes.

JUDGE WEBB: Okay. What have you paid the interpreter?

INTERPRETER: £50 before and £50 for today.

JUDGE WEBB: So £100?

MRS SULIGA: Yes.

JUDGE WEBB: Were you meant to be working today?

MR SULIGA: Yes.

MRS SULIGA: Yes.

JUDGE WEBB: (Inaudible)

INTERPRETER: At this hearing, £285.

JUDGE WEBB: That is a total of £3,554.71.

37. Mr Chouhan, I require you to pay that back to this couple by Friday of this week, which is 23^rd December. I am going to list the matter before me for the first open day after 1^st January. If the money is paid and Mr and Mrs Suliga are satisfied that they do not wish to take any further action, I will conclude the matter.

MR CHOUHAN: I haven't received the money, sir, so how can I make the payment?

JUDGE WEBB: You have received it from the bank.

MR CHOUHAN: No, I haven't received anything.

JUDGE WEBB: RBS has paid you the money.

MR CHOUHAN: No, I have not received it, sir.

JUDGE WEBB: £3,554.71 by Friday.

MR CHOUHAN: How am I going to pay that if I haven't received the money, sir?

JUDGE WEBB: It is not my problem, it really is not my problem.

38. £3,554.71 and I will list the matter for consideration as to whether I take further action in relation to the evidence I have heard before me today. I am guided by Mr and Mrs Suliga. If Mr and Mrs Suliga receive the funds and indicate that they want to conclude the matter, I will be satisfied the matter has been properly concluded. Thank you.
(This transcript has been approved by the Judge)
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