Atlantic Bank Ltd v Marin et Al

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Staine, J.
• Judgment Date: 21 August 1980
• Docket Number: Action No. 74 of 1976
• Date: 21 August 1980

Supreme Court

Staine, J.

Action No. 74 of 1976

Atlantic Bank Ltd.

and

Marin et al

Mr. E.W. Francis, Q.C. for the plaintiff.

Mr. J.C. Gray for the defendants.

Contract - Loan of money to purchase boat — Boat sank while in possession of defendant's agents — Whether obligation to repay loan discharged — Seizure of boat by plaintiff for non — payment of loan — Defendants held still liable to repay the loan

Staine, J.

1 This action was commenced by a writ of summons, with the statement of claim attached specially endorsed. That is to say by this statement of claim, the plaintiff claims recovery of a specific amount. The amount in question is, as outlined in the statement of claim, the sum of $88,709.11.

2 The action arises in this way. By a bill of sale executed on the 11th of May 1973, in favour of the plaintiff, the defendants jointly and severally covenanted to repay the sum of seventy thousand dollars borrowed from the plaintiff, which is a bank established in this country, the sum aforementioned, and secured by the mortgage of the chattel the boat vessel Tamara K, the property of the defendants. In the bill of sale the defendants covenanted to repay the money borrowed by certain specific instalments monthly, that is to say the sum of $1,205.00 per month, the first of such payments to be made on the 29th December, 1973 and thereafter a like sum on the 29th day of each succeeding month.

3 The defendants having thus covenanted commenced to make payments, roughly in consonance with their obligations; but after a while payments ceased to be made, and there is now outstanding on behalf of the principal sum, the sum of $56,431.75. To this has been added the sum of $5,614.44, which the plaintiff claims represents interest up to the date June 10th, 1976. I would say by way of observation that it was also a part of the covenant that the principal sum should bear interest at the rate of ten per centum per annum.

4 In addition to claiming the balance due on account for principal and interest, the plaintiff is claiming by this action payment of other sums. These sums represent amounts expended on account of insurance premiums due in respect of the boat “Tamara K”, as well as sums expended and connected with legal expenses, and the cost of advertisement, as well as interest on the amounts expended in respect of insurance premiums paid.

5 At hearing of this matter two witnesses gave evidence on behalf of the plaintiff. They were Mr. Isaack Perrera and the manager of the bank Mr. Gustavo Aguilar.

6 After having deposed to the circumstances under which the loan on mortgage was made, Mr. Perrera gave evidence of the payment of the various sums expended in respect of insurance and a survey of the boat “Tamara K”. He also gave evidence in respect of those sums paid on account of insurance premium, as the premium fell due. Additionally Mr. Perrera in evidence deposed to the fact that interest was charged in respect of the amounts paid on account of the insurance premium and these sum together made up an aggregate of the plaintiff's claim which mounted in the final analysis to $88,709.11.

7 Under cross-examination by counsel for the defence Mr. Perrera agreed that the sums expended in respect of advertisement charges were not expended by virtue of any agreement with the plaintiff. In respect of the sums paid to Mr. Conrad Jones the auctioneer when the auction of the boat was contemplated, Mr. Perrera said that it was customary that where the bank takes a bill of sale in respect of a chattel and a watchman had to be hired, the bank had paid the watchman regardless of whether the boat had been seized, and notwithstanding the absence of an agreement. He said in evidence that the bank had ordered sale of the boat because the debt owed in respect of the mortgage, was not being paid. Further, he said that apparently the owners had no interest in the boat. Mr. Perrera further agreed that...