BHUNNOO M. A. v. BIGATTON G.

2017 SCJ 355

Record No.105692

IN THE SUPREME COURT OF MAURITIUS

In the matter of:-
Mohammud Azhare BHUNNOO
Plaintiff
v.
Giampaolo BIGATTON
Defendant

JUDGMENT

It is common ground that, in 1982, the plaintiff obtained from the State of Mauritius a lease of lot
24 Pas Geometriques at Pointe aux Piments of an extent of 58 perches. The lease was to
expire in 2003. On 24 June 1986, the land was divided into two equal lots, namely lots 24 A
and 24 B. Lot 24 A was attributed to the plaintiff’s brother and lot 24 B to the plaintiff. The
plaintiff’s lease was renewed for a further period of twenty years with effect from 1 July 2003, to
expire on 30 June 2023. Subsequently, in December 2008, he was granted a new lease of lot
24 B for a term of 60 years (vide Docs P1 & P13), to expire on 25 December 2068.

In 1986, the plaintiff erected on lot 24 B a building comprising 3 rooms, dining room, lounge,
kitchen, toilet and bathroom. Prior to his obtaining the new lease of 60 years, the plaintiff had
rented the said building to Palladium Ltd as represented by Dr. Stephano Palmarin (vide Doc
P2). The plaintiff sued the said tenant for eviction on the ground that he bona fide and
reasonably required the said premises for his personal use and occupation and that of his
family. However, an agreement termed as ‘protocole d’accord’ was reached between the tenant,
who was represented by Mr. Denis Goyet as his ‘mandataire’, the plaintiff and the defendant.

The plaintiff and the defendant signed two copies of the said ‘protocole d’accord’ on 1
December 2008 (vide Docs P4 & P5). At the time of the signature of the ‘protocole d’accord’,
 2

Mr. Denis Goyet, intervened in his capacity as the then ‘mandataire’ of the previous tenant and
stated that the latter would renounce whatever rights he had as tenant on the land and the
building of lot 24 B. As per the ‘protocole d’accord’, the lease of lot 24 B was to be granted to
the defendant for a period of 20 years at a monthly rent of Rs 19,000, renewable at the
discretion of the defendant for another period of 20 years, and the defendant was to pay to the
plaintiff a sum of Rs 2 million as a ‘droit d’entrée”.

Thereafter, on 1 April 2009, the plaintiff and the defendant signed a ‘contrat de location’ (vide
Doc P6) in favour of the defendant in respect of lot 24 B for a period of 20 years, renewable at
the discretion of the defendant, if the existing laws so permitted, for another period of 20 years,
at a monthly rent of Rs 10,000.

The plaintiff has also averred at paragraphs 8 and 11 to 15 of the Plaint With Summons (PWS)
the following:-

(a) the defendant took possession of the premises at the end of September 2008
and started paying a monthly rent of Rs 7,000, promising to pay the difference in
due course (paragraph 8);

(b) in the lease agreement of 1 April 2009, the monthly rent was stated to be Rs
10,000 upon the defendant’s undertaking to pay to the plaintiff a sum of Rs
2,160,000 representing the balance that would normally be due on rent over the
period of 20 years (Rs 9,000 x 12 x 20). However, the defendant paid to the
plaintiff only Rs 1 million on the sum of Rs 2,160,000, promising to pay the
balance in due course (paragraph11);

(c) the lease agreement of 1 April 2009 has been “drafted in such a way that the
plaintiff and/or assigns are bound to renew the lease for one or more periods of
20 years on the same terms and conditions” (paragraph 12);

(d) the lease agreement, in particular the wording of clauses 4, 5, 6 and 7, has been
drafted in a manner as to defeat section 3(3)(a) of the Non Citizens (Property
Restriction) Act (paragraph 13);
 3

(e) the defendant is of bad faith and has still not paid the remaining balance on the
agreed sum / rent of Rs 2,160,000 (paragraph 14); and

(f) the acts and doings of the defendant amount to ‘faute’ and the lease agreement
is null and void to all intents and purposes (paragraph15).

The plaintiff is, therefore, praying for a judgment:-

(a) declaring that the lease agreement drawn up on 1 April 2009 is null and void to
all intents and purposes;

(b) ordering the defendant –

(i) to pay to him the sum of Rs 1 million representing an indemnity for use and
occupation of the premises by the defendant; and

(ii) to vacate the premises within a delay to be fixed by the Court.

In his plea, the defendant has denied all the above-mentioned averments of paragraphs 8 and
11 to 15 of the PWS and he has averred the following:-

(a) he took possession of the premises as from 1 April 2009 and, since then, he has
been paying the rent as per the terms of the ‘contrat de location’ executed on 1
April 2009;

(b) after the execution of the ‘protocole d’accord’ on 1 December 2008, the
defendant paid to the plaintiff a sum of Rs 1 million out of the sum of 2 million
which the defendant had agreed to pay as ‘droit d’entrée’ and the said sum was
used by the plaintiff to pay the Government for the latter to execute the lease for
a period of 60 years in favour of the plaintiff;

(c) by letter dated 20 March 2009, the plaintiff informed the defendant that he had
already obtained a copy of the duly executed lease agreement for lot 24 B;
 4

(d) thereafter, on 1 April 2009, the plaintiff and his brother entered into two separate
lease agreements ‘bail à construction’ with the defendant;

(e) it is clearly stipulated in the said lease agreement of 1 April 2009 that –

(i) the defendant can renovate (rénover) or destroy the building (détruire
l’immeuble) and go ahead with any construction on the land for the purpose
of a ‘projet touristique’;

(ii) the plaintiff would give, without any restriction or reservation, all
authorisations to the tenant to “rénover, démolir, aggrandir y compris
surélever, aménager parc ou jardin … … …” ; and

(iii) the plaintiff has ‘l’obligation sans restriction ni réserves d’accepter,

d’avaliser, de signer tout projet moral que présenterait Monsieur G.
Bigatton afin d’obtenir les autorisations nécessaires à des éventuels
travaux requérants permis de construire sur son immeuble et sur le terrain’.

(f) ever since he took possession of the land in lite in April 2009 till date, he has
been paying regularly the monthly rent due to the plaintiff as per the terms of the
lease agreement of 1 April 2009;

(g) the defendant is and has always been ready and willing to pay the remaining Rs
1 million due to the plaintiff as ‘droit d’entrée’ but the latter has been refusing to
encash same as the defendant has not acceded to plaintiff’s requests to amend
the lease agreement; and

(h) the plaintiff has persistently been refusing to give the defendant the necessary
written authorisations to enable him to apply to the relevant authorities for the
building permits required to proceed with the reconstruction / renovation of the
buildings existing on the land. As a result of his refusal, the defendant has up to
now been unable to execute the project for which he had taken the two portions
of land on lease from the plaintiff and his brother.
 5

The defendant is, therefore, moving that the PWS be dismissed with costs.

Counterclaim

The defendant has also put up a Counterclaim against the plaintiff. He has set out at
paragraphs 1 to 12 of the Counterclaim most of the averments contained in his plea and, at
paragraph 13, has averred that, as a result of the plaintiff’s refusal to give him the relevant
written authorisations enabling him to apply to the relevant authorities for the building permits,
the defendant: (a) is being deprived of the quiet possession and enjoyment of the property; (b)
has been unable to proceed with his ‘projet d’hébergement touristique’, thereby suffering
considerable loss of income; and (c) as a result of the plaintiff’s unlawful acts and doings, which
amount to ‘faute’, has suffered considerable damage and prejudice which he estimates at Rs 10
million.

The defendant is, accordingly, praying for a judgment condemning and ordering the plaintiff to –

(a) remit to him the relevant written authorisations so that he may proceed with the
execution of his ‘projet d’hébergement touristique’ and

(b) pay to him the sum of Rs 25 million as damages. With costs.

Plea to the Counterclaim

The plaintiff has denied that –

(a) he has persistently refused to give the defendant the necessary written
authorisations;

(b) the defendant informed him that he is ready and willing to pay the remaining Rs 1
million as “droit d’entrée” but that the plaintiff refused to accept the payment;

(c) the defendant has up to now been unable to execute the project for which he has
leased the land on account of his refusal to give his authorisations;
 6

(d) the defendant has been deprived of the quiet possession and enjoyment of the
said property; and

(e) he (i.e. the plaintiff) has committed any ‘faute’.

The plaintiff has also reiterated in his plea to the Counterclaim that the defendant has been of
bad faith inasmuch as –

(a) the new lease agreement in particular clauses 4 to 7 have been drafted in such a
way as to defeat section 3(3)(a) of the Non-Citizens (Property Restriction) Act;

(b) the defendant has still not paid to the plaintiff the full amount of the purported
monthly rental of Rs 19,000 and has paid only Rs 1 million on the agreed sum of
Rs 2,160,000.

The plaintiff has further averred that he is ready and willing to refund the sum of Rs 1 million
paid to him by the defendant. He has, accordingly, moved that the Counterclaim be set aside
with costs.

Plaintiff’s evidence

The plaintiff gave evidence as per the averments made in his PWS and produced several
documents including a copy of the lease agreement he holds with the State of Mauritius (Doc
P1), two copies of the ‘protocole d’accord’ which he and the defendant signed on 1 December
2008 (Docs P4 & P5), as well as a copy of the tenancy agreement (contrat de location) dated 1
April 2009 (Doc P6).

In examination-in-chief, the plaintiff explained that, as per the tenancy agreement, the defendant
was supposed to pay to him the sum of Rs 2 million as ‘droit d’entrée’. However, he gave him
only Rs 1 million in January 2009. He produced a document to that effect (Doc P8). He also
stated that the defendant has been paying Rs 7,000 as rent per month and, as at the trial date
(i.e. 24 November 2016), he still owed him Rs 1 million as ‘droit d’entrée’ and Rs 1,538,600 as
rent, adding that the defendant was irregular in the payment of rent and did not even pay the
 7

rent for certain months. In the same breath, however, he stated that he was claiming Rs 1
million as indemnity for use and occupation of the premises.

The plaintiff further reiterated, as per the averments of his PWS, that the tenancy agreement
is contrary to section 3 of the Non-Citizens (Property Restriction) Act in that it entitles the
defendant to have the lease renewed at his discretion and to hold it for more than 20 years.

With regard to the defendant’s Counterclaim, the plaintiff explained that he never prevented the
defendant from going ahead with his project and from being in possession of the land. He added
that the latter is, in fact, actually occupying the land whilst he (i.e. plaintiff) has been denied
access to it. He agreed that, as per the contract of tenancy, the defendant was entitled to pull
down the original building found on the land. However, he emphasised that such action was
subject to the defendant presenting to him the ‘project’ that he (i.e. defendant) wanted to put up
on the land, which the defendant never did. He denied having refused to give the required
authorisations to the defendant to enable him to obtain the relevant permits from the District
Council. He added that the defendant himself never presented to him any project in respect of
which he needed the required permits. He was, therefore, not agreeable to pay any damages to
the defendant.

In cross-examination, the plaintiff admitted that the contract of tenancy was binding on him as
he had signed it willingly and that he was obliged to give his authorisations to enable the tenant
to obtain the relevant permits from the District Council. He insisted, however, that the defendant
never came to him with any project. He agreed that he made declarations to the police and had
entered an injunction case against the defendant. He explained that he wanted to stop the
construction as the defendant had demolished his existing building and was putting up a new
construction without obtaining his consent. It was during the injunction case that he came to
know that the defendant had already obtained the construction permit from the District Council
on his (i.e. plaintiff’s) name when, in fact, he (plaintiff) had never given him such authorisation.
He could not understand how the District Council had issued a building permit on his name.
Furthermore, he maintained that the defendant had never presented to him his project. He,
therefore, denied that he had, out of bad faith, lodged the injunction case against the defendant
and made declarations against him to the police.
 8

The plaintiff also conceded that paragraph 6 of the tenancy agreement provided that the
defendant “accordera à Monsieur Giampaolo Bigatton la notion de “contrat de location à
construction” afin que ce dernier ou toute autre partie désignée par lui, puisse rénover ou
détruire l’immeuble et de procéder à toute construction sur le terrain dans le but d’un projet
touristique”. He maintained, however, that his consent was required for the obtention of the
construction permits and that he had not given same. Moreover, he had not given any power of
attorney to the defendant or to his proxy to sign on his behalf. Therefore, the defendant had
according to him constructed the building illegally without his permission. He also denied that
the defendant had to abandon his project because of his interferences, that he had caused
prejudice to the defendant estimated at Rs 10 million and that he was liable to pay to him a total
compensation in the sum of Rs 25 million.

A number of witnesses were called to give evidence on behalf of the plaintiff.

Mr Y. Montille, a planning and Development Officer from the District Council of

Pamplemousses, testified that an application for a building and land use permit (BLUP) was
made to the District Council on the name of the plaintiff on behalf of the defendant for the
construction of a building at Pointe Aux Piments on a plot of land 24 B. The application was
approved by the District Council and the permit was delivered on 17 September 2011.

CPL Ramdoyal produced two declarations made by the plaintiff on 18 February 2015 and
1 November 2015 against the defendant (Doc P11 & P12). The declarations were in relation to
disputed property.

Mr. R. Nemchand, a Quantity Surveyor, stated that he assessed the value of the old building
demolished by the defendant and that of the new construction put up by him. He also stated that
he never visited the site but he used the plans and pictures of the old demolished building and
information furnished to him by the plaintiff in order to evaluate the present costs of erecting
such a building. He estimated same at Rs 1,789,603.06 and that of the new building put up by
the defendant at Rs 2,247,306.06 by using an average market rate.

Defendant’s case
 9

The defendant’s representative, Mr. Goyet stated that the defendant took possession of the
premises on 1 April 2009 after the signature of the ‘contrat de location’ and started paying the
monthly rent of Rs 10,000 with an annual increase of 3.5% every year as per the terms of the
said contract. However, prior to that, as per the ‘protocole d’accord’ signed on 1 December
2008, he gave to the plaintiff the sum of Rs 1 million out of two million rupees meant as a ‘droit
d’entrée’. He produced a receipt issued by the plaintiff in respect of the said payment (vide Doc
D3).

He also stated that the defendant caused an old building found on the land to be demolished
and replaced by a new building as this was part of the defendant’s project and that the latter did
obtain the construction permit, which was deposited on the name of the plaintiff, as envisaged in
the contract. However, after the defendant had completed the first building, the plaintiff entered
a Court case to stop all further works.

Mr. Goyet explained that the defendant demolished the old building as it was in ruins and the
construction works started in April or May 2011. The works were stopped for a while because of
the injunction case. Thereafter, the works restarted in March 2012 but, in October 2016, they
were stopped again owing to the present Court case. He also stated that the defendant has
been paying the rent by direct transfer to the account of the plaintiff regularly until March 2016
when the plaintiff gave instructions to his bank to refuse money from the defendant’s accounts
so that, if rent is due to the plaintiff, this is on account of the plaintiff’s refusal to accept the rent
since March 2016. The version of Mr. Goyet that it was the plaintiff who refused to accept the
rent after March 2016 has remained rebutted.

In cross-examination, Mr. Goyet conceded that, when plaintiff entered the injunction case, the
defendant of his own accord stopped further construction works and that, after the interlocutory
injunction was set aside, the defendant continued with the works. He was confronted with the
fact that, after the injunction case was over, the defendant was free to go ahead with his
construction as the plaintiff did not prevent him from doing so. Mr. Goyet explained that the
defendant did not go ahead with the project because the plaintiff did not answer defendant’s
mail (‘courier’), refused to take the rent and had entered Court cases challenging the contract of
tenancy (Doc P6) as well as the construction permits which the defendant had obtained.
Therefore, there was no reason for the defendant to continue with the works without knowing
where he was heading.
 10

I have given due consideration to the evidence adduced on both sides and to the submissions
made by both Counsel.

I shall deal, first of all, with the point of law raised by the plaintiff to the effect that the contract of
tenancy (Doc P6) is null and void as it is in breach of section 3(3)(a) of the Non Citizens
(Property Restriction) Act) (“the Act”).

Learned Counsel for the plaintiff has submitted that the said tenancy agreement is in breach of
the Act as it compels the plaintiff and the defendant to extend its duration beyond 20 years, thus
rendering the lease void. He placed reliance on Article 1131 of the Civil Code which provides
that “l’obligation sans cause, ou sur une fausse cause, ou sur une cause illicite, ne peut avoir
aucun effet.”

On the other hand, learned Counsel for the defendant has submitted that it is clear from a
reading of paragraph 4 of the lease agreement between the parties that the lease is for a fixed
period of 20 years only. Thereafter, there exists a discretionary provision for renewal by the
defendant, which is subject to same being permitted by the existing laws (“les lois alors en
vigueur le permettant”) so that, if the Act prohibits renewal after the expiry of the lease, then the
discretionary power granted to the defendant cannot be exercised. In his view, therefore, Doc
P6 is not in breach of section 3 of the Act and, the lease being for a fixed period of 20 years, no
certificate was required from the Minister.

Learned Counsel for the defendant further submitted that Doc P6 has not been drafted in a
manner to defeat section 3 of the Act. Rather, it acknowledges, in no uncertain terms, the
impact of the law upon the power to renew the lease. It cannot be argued, he submitted, that
Doc P6 is for a period of 40 years or for any period exceeding 20 years. Renewal for any
additional period is made subject to the laws of Mauritius. Doc P6, therefore, complies with the
law, is valid and cannot be declared null and void.

I have duly considered the submissions of both Counsel on the point of law raised by the
plaintiff. It is not disputed that the defendant is a non-citizen and that, by virtue of sections 3(1)
and 3(2) of the Act, a non-citizen must apply to the Minister for a certificate if he wants to hold or
purchase or otherwise acquire a property in Mauritius. Section 3(3), however, provides certain
 11

exceptions when such a certificate is not required, as for instance, under paragraph (a)(i) when
there is “a lease agreement for industrial or commercial purposes for a term not exceeding 20
years”.

In the present case, the duration of the lease is provided for at paragraph 4 of Doc P6 and it
reads as follows:-
“La durée du contrat de location de l’Immeuble et du Terrain est de vingt
ans. A l’expiration de cette période de 20 ans, Monsieur Giampaolo
BIGATTON aura la faculté, les lois alors en vigueur le permettant,
d’exercer, à son entière discrétion, l’option de renouveler la dite location
pour une période additionnelle de 20 ans. Monsieur Mohamed Azhare
BHUNNOO ou ses ayants droits, le cas échéant, auront l’obligation
d’accepter la décision d’un renouvellement de Monsieur Giampaolo
BIGATTON. Monsieur Mohamed Azhare Bhunnoo ou ses ayants droits
devront exécuter toute documentation nécessaire pour la validité du dit
renouvellement.”
[emphasis mine]

It is very clear from the wording of paragraph 4, set out above, that the contract is for a fixed
duration of 20 years only and, after its expiry, it would be up to the defendant whether or not to
opt for a renewal of the lease. However, the exercise of such discretion to opt for a renewal of
the lease for any further period would be subject to whether the laws then in force would allow
him to do so. In other words, the exercise of the defendant’s discretion would be subject to the
existing laws of Mauritius.

Furthermore, by virtue of paragraph 6 sub-paragraph 2 of the contract, the defendant is

empowered to renovate and destroy the building standing on the land and start a new
construction on the land “dans le but d’un projet touristique”. The said provision reads as
follows :-

“Selon une condition expresse de la location du Terrain et de l’Immeuble,

Monsieur Mohamed Azhare BHUNNOO accordera à Monsieur Giampaolo
BIGATTON, la notion de “contrat de location à construction” afin que ce
dernier ou toute autre partie désignée par lui, puisse rénover ou détruire
 12

l’Immeuble et de procéder à toute construction sur le Terrain dans le but

d’un projet touristique”.

It is clear from the above-mentioned clauses that the contract is in respect of a lease for
commercial purposes for a term not exceeding 20 years in respect of which a certificate from
the Minister was not required. I, therefore, hold that the contract is not in breach of section 3(3)
(a) of the Act. The point of law raised by the plaintiff, accordingly, fails.

I shall now turn to the merits of each party’s case. Having duly and carefully considered the
evidence adduced on both sides, I must say that I prefer by far the evidence adduced by the
defendant’s representative, Mr. Goyet, to that of the plaintiff. To start with, the plaintiff has failed
to substantiate his averment that, when the defendant took possession of the premises, he
started paying Rs 7,000 monthly, promising to make up the difference on the rental in due
course. There is only his word on this score, which has been strenuously denied by the
defendant’s representative. Furthermore, there is no specific clause in the contract nor any
other documentary evidence in support of the plaintiff’s averment that the monthly rent was
stated to be Rs 10,000 in the contract upon the defendant’s undertaking to pay a sum of Rs
2,160,000 being allegedly the balance that would normally be due on rent over the period of 20
years.

As regards the alleged unpaid rent amounting to Rs 1,538,600, the plaintiff, whilst conceding
that it is the contract and not the ‘protocole d’accord’ that binds him, explained that he
calculated the said amount on the basis of a monthly rent of Rs 19,000 as per the ‘protocole
d’accord’ and not as per the contract because the contract is illegal and contrary to law.

Be that as it may, the plaintiff failed to explain in details how this sum has been arrived at. No
documentary evidence has been produced in support of this claim. The plaintiff stated that, for
certain months, no rent was paid and he had already prepared a breakdown showing how the
sum of Rs 1,538,600 was due. However, he neither produced the said breakdown nor
enlightened the Court how he had calculated this sum. Instead, in the same breath, he stated
that he was claiming Rs 1 million from the defendant as indemnity for use and occupation of the
premises.
 13

It must be pointed out, however, that Counsel for the plaintiff lengthily cross-examined
defendant’s representative, Mr. Goyet, with regard to the rent allegedly due by the defendant for
the months of December 2008 to December 2016 amounting to Rs 1,643,271 on the basis that
the monthly rent was Rs 19,000. Mr. Goyet categorically denied same and has maintained all
along that, as per the contract, the monthly rent is Rs 10,000 with a yearly increase of 3.5 %,
and the defendant had been paying the rent regularly until March 2016 when the plaintiff himself
refused to accept the rent.

In his written submissions, learned Counsel for the plaintiff has carried out a detailed
mathematical computation exercise to calculate the final amount still due by the defendant,
which is an amount of Rs 222,019.14, and Counsel submitted that the defendant should be
ordered to pay to the plaintiff the said amount.

I must make the following observation. The manner in which the calculations have been worked
out in the written submissions of Counsel is tantamount to Counsel adducing evidence on behalf
of the plaintiff when the latter never adduced such evidence in Court. Counsel cannot adduce
evidence in the guise of written submissions.

Be that as it may, finally this whole computation exercise has been futile as the plaintiff
is only praying that the defendant be ordered to pay to him a specific sum of
Rs 1 million as indemnity for use and occupation of the premises by the defendant.

Having, therefore, carefully analysed the evidence on record and considered the submissions of
both learned Counsel, I find that the version of Mr. Goyet is more plausible than that of the
plaintiff. Undoubtedly, it is the contract and not the ‘protocole d’accord’ that binds the parties.
Hence, the monthly rent as per the contract is Rs 10,000 and cannot be Rs 19,000 as per the
‘protocole d’accord’. Mr Goyet’s testimony that the defendant has been paying the monthly rent
of Rs 10,000 regularly until the plaintiff caused the payments to be stopped has remained
unshaken. The defendant cannot, therefore, be reproached or held responsible for the non-
payment of any rent still due as at date. I must also add that there is no specific prayer by the
plaintiff for the payment of rent.

I have also observed that there is a contradiction in the manner in which the case for the plaintiff
has been presented before the Court. The plaintiff has averred in his PWS that the defendant
 14

has paid to him only Rs 1 million on the sum of Rs 2,160,000 representing the balance that
would normally be due on rent over the period of 20 years. He has also averred that he is ready
and willing to refund the Rs 1 million to the defendant. The evidence on record, however,
discloses that the only sum of Rs 1 million paid to the plaintiff was in respect of the “droit
d’entrée” and not in respect of rent. Therefore, the plaintiff’s averment that the defendant paid
Rs 1 million on the sum of Rs 2,160,000 does not hold water.

The submission of learned Counsel for the defendant, on the other hand, is that the contract is a
valid contract and the question of indemnity and/or compensation for use and occupation does
not arise. Nor can the plaintiff claim restitution if his stand is that he has signed an illegal
contract. There is also no specific prayer in the PWS for damages for demolition of the old
building. Furthermore, the estimated costs emanate from a surveyor’s report (Doc P14) which
contains guess work as the latter never visited the premises, did not perform any independent
verification of facts provided to him by the plaintiff and relied solely on old photographs to arrive
at the figures set out in his report.

I fully endorse the above-mentioned remarks made by defendant’s Counsel in his submissions.
Indeed, the quantity surveyor’s report cannot be relied upon. It is unbelievable that this expert
has estimated the costs of erecting a new building similar to the one that has been demolished
by taking into consideration exclusively the plans and pictures of the old building and
information given to him by the plaintiff and, through this exercise, has even managed to
evaluate its costs to the exact rupee and cent, to wit, Rs 1,789,603.20. The same reasoning
would apply with regard to the surveyor’s evaluation of the costs of the new building constructed
by the defendant.

In any event, the surveyor’s report is of no relevance to the plaintiff’s case as the latter has not
made any claim for rent. All that he has claimed is a fixed sum of Rs 1 million as an indemnity
for use and occupation of the premises.

For all the reasons given above and, being satisfied that the contract is a valid one, I find that
the plaintiff has failed to prove his case on a balance of probabilities.

I, accordingly, dismiss the Plaint with Summons with costs.

 15

With regard to the Counterclaim, I do not find the defendant’s case proved either. The evidence
on record shows that the defendant did obtain the relevant permits from the authorities and that
he has already demolished the old building and built a new one. True it is that the plaintiff went
to the police and brought Court cases against the defendant. However, the defendant was at
liberty to carry on with the construction works once the injunction case was over but he has
chosen not to do so.

The plaintiff has, on the other hand, explained why he brought the Court cases against the
defendant and reported him to the police. He has stated that the defendant never presented any
project to him, he never sought his permission for the permits obtained on his behalf and his
(plaintiff’s) signature has been forged. Given the explanations of the plaintiff, I do not consider
that he acted out of malice or bad faith.

Furthermore, it has not been established that the defendant has been deprived of his quiet
possession and enjoyment of the premises. On the contrary, the defendant’s representative,
Mr. Goyet, has confirmed that the defendant has always been and is still occupying the land and
the new building and that further construction works stopped only in October 2016. Mr. Goyet
also conceded that the defendant had no impediment to carry on with the construction works
when the injunction case was over and that the defendant did obtain the relevant permits to do
the works. It is, therefore, clear from the latter’s evidence that the defendant has presently
stopped his project pending the outcome of the present case. Having chosen to do so, he
cannot lay the blame on the plaintiff.

Another reason why the Counterclaim should fail is because of the defendant’s failure to
substantiate how he has sustained damages in the sum of Rs 10 million or in the sum of
Rs 25 million. Damages are not granted on the mere asking. They have to be substantiated and
proved as per the required standard. I must say that the defendant has utterly failed to prove his
case for damages. Moreover, it is most striking that immediately after averring that “as a result
of the plaintiff’s unlawful acts and doings, which amount to ‘faute’, he has suffered considerable
damage and prejudice which he estimates at Rs 10 million”, the defendant then prays for a
judgment ordering the plaintiff to pay to him the sum of Rs 25 million as damages.

As regards the defendant’s prayer to order the plaintiff to remit to him the relevant written
authorisations so that he may proceed with his “projet d’hébergement touristique”, it is not very
 16

clear what relevant written authorisations he wants to obtain. The evidence adduced before me
shows that the defendant has already obtained the permits for the new construction but he has
halted the construction works and is awaiting the outcome of the present case. The defendant
cannot, therefore, be heard to say that he has up to now been unable to execute the project for
which he has leased the land on account of plaintiff’s refusal to give his authorisations.

Therefore, in the absence of clear evidence as to which precise and relevant written
authorisations the defendant wants the plaintiff to remit to him, I am not prepared to give a
blanket order to that effect.

The Counterclaim is, therefore, set aside.

D. Beesoondoyal
Judge

25 September 2017

For Plaintiff: Mr. J. Panglose, of Counsel

Mr. M. Mardemootoo SA

For Defendant: Mr. Y. Reesaul, of Counsel together with

Mr. R. Chetty and Miss D. Ramdewar
Mr. P. Rangasamy, Attorney-at-Law
17