Interfin Banking Corporation Limited t/a Interfin Bank (under Curatorship) (Represented by Peter L. Baily in his capacity as Curator) v Scarborough Investments (Private) Limited

### Preamble
1
HH 303-13
HC 3801/13
---------


INTERFIN BANKING CORPORATION LIMITED

t/a INTERFIN BANK (under Curatorship)

(Represented by Peter L. Baily in his capacity as Curator)

versus

SCARBOROUGH  INVESTMENTS (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE, 10 July and 3 August 2013

Adv. L Uriri, for the plaintiff

C. Venturas, for the defendant

TAKUVA J: The plaintiff’s claim is for provisional sentence in the amount of Four Hundred and Fifty Thousand United States Dollars (USD 450 000-00) with interest thereon at the rate of 20% per annum from 4 March 2013 to date of payment in full.

The plaintiff’s claim against the defendant is based on two liquid documents in the form of:

Deed of Hypothecation which was executed on 20 November 2009 by Scarborough Investments (Pvt) Ltd in favour of CFX Bank Ltd which is the predecessor the plaintiff pursuant to an amalgamation in 2010 over the following property: stand 115 Christon Bank Township Blue Hills of Christon Bank held under Deed of Transfer number 2719/97. The capital amount payable under the Deed of Hypothecation is Two Hundred and Fifty Thousand United States Dollars (USD 250 000-00) and interest is payable on that amount at the rate of 20% per annum. The Deed of Hypothecation was registered in the Deeds Registry at Harare on 20 November 2010.

Deed of Hypothecation which was executed on 11 February 2010 by Scarborough Investments (Pvt) Ltd in favour of CFX Bank Ltd, the predecessor of the plaintiff pursuant to an amalgamation in 2010 over stand 115 Christon Bank Township 8 of Blue Hills of Christon Bank held under Deed of Transfer number 2719/97. The capital amount payable under the Mortgage Bond is Two Hundred Thousand United States Dollars (USD 200 000-000 and interest is payable on that amount at the rate of 20% per annum. The Deed of Hypothecation was registered in the Deeds Registry at Harare on 11 February 2010.

The amount of UDS 450 000-00 claimed by the plaintiff has become due and payable and due notice was given to the defendant in terms of order 4 r 24 of the High Court Rules, 1971. Written notice was given to the defendant by the plaintiff on 22 April 2013.

The plaintiff’s prayer is for the following:-

Payment in the sum of USD 450 00-00 plus interest thereon at the rate of 20% per annum from 4 March 2013 date of payment in full;

Collection commission in terms of Law Society by laws calculated in terms of clause (m) of the Deeds of Hypothecation;

Costs of suit on a legal practitioner client scale calculated in terms of clause (m) of the Deeds of Hypothecation;

Stand 115 Christon Bank Township 8 of Blue Hills Christon Bank held under Deed, of Transfer number 2719/97 be and is hereby declared specially executable.

The defendant opposed the application on two grounds.  Firstly it was contended that

the plaintiff has no locus standi in this matter in that it sold its claim to a foreign entity called Al Shams Global BVI Ltd. Secondly, it was submitted that in terms of order 31 r 223(1)(a), it is only uncontested cases for provisional sentence that may be set down on the unopposed roll and in terms of order 4 r 25(2), 032 of the High Court rules applies and this matter must be referred to the opposed roll for hearing on the point in limine.

The first point is without merit for the following reasons;

the so called surety agreement was not attached

the link between respondent and CHIRUNDU Estates (Pvt) Ltd was never disclosed,

Al Shams never proceeded against the defendant and respondent concedes that the claim was withdrawn,

The Bankers Acceptances are different and reflect figures and dates totally unrelated to the two bonds.

Even if it were accepted that the plaintiff sold these Bankers Acceptances, this was done “on a buy back basis”,

The two bonds were passed by the respondent in favour of the plaintiff. One wonders how CHIRUNDU ESTATES (PVT) LTD came in the picture.

The second ground advanced by the defendant arises from an incorrect interpretation

of the rules. Order 4 r 25 and r 27 permit the court to entertain an application for provisional sentence on the unopposed roll even where there is a notice of opposition filed in the record.

It is accepted that the two Deeds of Hypothecation totalling USD 450 000-00 were passed by the respondent in favour of the plaintiff to cover debts generally including both existing and future indebtedness. It is also accepted that these bonds are liquid documents. Notice in terms of order 4 r 24 that payment should be made to the plaintiff, and that in the event that full payment of the capital sum and interest there on is not received by midday on Tuesday 30 April 2013, legal proceedings will be instituted against the respondent without further warning.

For these reasons, I am satisfied that the provisions of order 4 have been complied with. Accordingly, it is ordered that:-

Provisional sentence be and is hereby ordered against the defendant in the sum of USD 450 000-00 plus interest thereon at the rate of 20% per annum from 4 March 2013 to date of payment in full;

Collection commission in terms of the Law Society by laws calculated in terms of clause (m) of the Deeds of Hypothecation,

Costs of suit on a legal practitioner client scale calculated in terms of clause (m) of the Deeds of Hypothecation,

Stand 115 Christon Bank Township 8 of Blue Hills of Christon Bank held under Deed of Transfer number 2719/97 be and is hereby declared especially executable.

Dube, Manikai & Hwacha, plaintiff’s legal practitioners

Venturas & Samukange, defendant’s legal practitioners