Kulwinder Singh Roshan v Sohan Singh and Others
| Jurisdiction | England & Wales |
| Judge | Mr S Monty |
| Judgment Date | 13 February 2017 |
| Neutral Citation | [2017] EWHC 176 (Ch) |
| Docket Number | Claim No: HC-2016-002377 |
| Court | Chancery Division |
| Date | 13 February 2017 |
[2017] EWHC 176 (Ch)
Mr S Monty QC (SITTING AS A DEPUTY JUDGE OF THE CHANCERY DIVISION)
Claim No: HC-2016-002377
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
7 Rolls Building
Fetter Lane,
London EC4A 1NL
Mr Roger Bartlett (instructed by Starck Uberoi Solicitors) for the Claimant
Mr Stephen Boyd (instructed on a Public Access basis) for the Second and Third Defendants
Hearing dates: 14 and 15 December 2016
Judgment Approved
Mr S Monty QC:
Introduction
This is an application by the Second and Third Defendants to strike out the claim. The Fourth Defendant has taken no part in these proceedings and no relief was sought against the Fourth Defendant by the claim. The First Defendant has served a Defence but did not appear, was not represented, and took no part in the hearing.
The Claimant is represented by Mr Roger Bartlett and the Second and Third Defendants by Mr Stephen Boyd. Mr Bartlett and Mr Boyd provided me with detailed and thorough skeleton arguments and developed those in the course of oral submissions. I am grateful to them both for the way in which each of them presented and argued the issues.
The essence of the application is that a county court judgment in an earlier action, which resolved the issue of ownership of a property, was obtained by fraud. I was the trial judge in that action. The Claimant, who was not a party to that action, says that he is entitled to set aside that judgment, and all subsequent findings in related proceedings, and for there to be a new trial in the present action to determine the true ownership of the Property. The Second and Third Defendants say that the present claim is an abuse and in any event has no chance of succeeding.
My conclusions are that the claim is an abuse of process, it has no real prospect of success, and accordingly, the claim should be struck out. The reasons for my conclusions are set out below. I need first to set out the background.
The ownership claim and related proceedings
On 2 February 2015, following a five-day trial in the Central London County Court, I gave judgment in a case called Singh v Bharj and others, Claim No 3CL10076. I shall refer to that action as "the ownership claim", as the central issue which I had to determine was the beneficial ownership of a property at 253–265 The Broadway, Southall ("the Property") which was used as a Sikh Temple known as the Gurdwara Miri Piri Sahib. I held that the Property (the legal title to which was registered in the name of Mr Sohan Singh) was beneficially owned by Mr Jaswant Singh Bharj, his wife Mrs Amrik Kaur (also known as Amrik Kaur Bharj) and Mr Sohan Singh as tenants in common in the shares 33% to Mr Singh, 34% to Mr Bharj, and 33% to Mrs Bharj. I shall refer to them as "the owners", each of whom was a party to the ownership claim. I also held that Mr Mahender Singh Rathour (also a party to the ownership claim) was the lawful lessee of the Property, and that the owners were entitled to collect the rents and profits of the Property which had at all times been received by Mr Sohan Singh as trustee. I directed that there be an account as between the owners as to the rents received and sums raised by way of security on the Property, that account to be conducted in the light of the findings made in my judgment.
On 5 June 2015 HHJ Hand dismissed as totally without merit an application made by Mr Sukhwinder Singh (who had not been a party to the ownership claim) to stay the ownership claim on the basis that the Property in fact belonged not to the owners but to the congregation of the Gurdwara, and that my judgment in the ownership claim had been obtained by fraudulent evidence.
The hearing of the account proceedings which I had ordered should take place commenced on 8 February 2016 before DJ Lightman. The hearing was adjourned part heard on 10 February 2016, recommenced on 7 and 8 November 2016, and a detailed judgment was given on 1 December 2016.
Meanwhile, on 11 March 2015 Mr and Mrs Bharj then brought a separate claim against Mr Sohan Singh under the Trusts of Land and Appointment of Trustees Act 1996 seeking amongst other relief an order for sale of the Property, Claim No B10CL514 ("the TOLATA claim"), the trial of which took place before HHJ Gerald on 1 June 2016. At that trial, Mr Kulwinder Singh Roshan (who is the Claimant in the present action) applied to intervene in the TOLATA claim in a representative capacity for the members of the Gurdwara, but that application was dismissed. HHJ Gerald ordered that the Property be sold by public auction and gave detailed directions as to the conduct of the sale. That sale has not yet taken place.
The present claim
These proceedings were commenced on 12 August 2016. Mr Roshan claims the following relief:
i) The ownership claim and the TOLATA claim be transferred to the High Court;
ii) All proceedings in the TOLATA claim be stayed until further order;
iii) A declaration that Mr Roshan, as member of the charity known as the Gurdwara Miri Piri Sahib and as a representative of all of the members thereof (except for Mr Sohan Singh and Mr & Mrs Bharj), is not bound by the declarations I had made in the ownership claim as to the ownership of the Property;
iv) Further or alternatively, an order setting aside my order of 2 February 2015 in the ownership claim as having been procured by the fraud of Mr Sohan Singh and/or Mr Bharj and/or Mrs Bharj;
v) Further or alternatively, an order setting aside HHJ Gerald's order of 1 June 2016 in the TOLATA claim as having been obtained by Mr & Mrs Bharj in reliance on their fraud in the ownership claim;
vi) A declaration that Mr Sohan Singh holds the Property on trust to be used for charitable purposes of the Gurdwara and that it is charity property.
Particulars of Claim were served on 18 August 2016, which assert as follows. In 1995 Mr Sohan Singh, Mr Bharj, Mr Rathour, Mr Sukhwinder Singh and Mr Bhagwan Singh formed a committee with a view to establishing a Sikh Temple in Southall, and on 13 April 1995 they adopted a set of Rules which formed the constitution of the Gurdwara. The committee then found the Property and agreed to purchase it for £185,000. They started a fund-raising campaign and various individuals gave money towards the purchase, which were either gifts or interest-free loans. A deposit was paid to the vendors of the Property and works commenced to convert it for use as a Gurdwara, with many members of the community giving their labour as volunteers. The purchase of the Property completed in July 1996 with the aid of a mortgage advance taken out by Mr Sohan Singh, in whose name the Property was registered. As a result, it is averred that Mr Sohan Singh thereafter held the Property on trust for all the members of the Gurdwara and did so until it was registered as a charity in 2013, whereafter he continued to hold it in trust for the charitable purposes of the Gurdwara. The lease to Mr Rathour at a rent of £1,400 (later increased to£2,000) per month was granted in order to fund the mortgage payments, the rent being paid from the Gurdwara's funds. The ownership claim was commenced after disputes had arisen between Mr Sohan Singh and Mr Bharj over the management of the Gurdwara.
Mr Roshan says that in the ownership claim:
i) Mr Sohan Singh falsely claimed and asserted that he was the sole beneficial owner of the Property and falsely claimed in evidence that he had made substantial payments towards its purchase.
ii) Mr & Mrs Bharj falsely claimed and asserted that they, together with Mr Sohan Singh, were the beneficial owners of the Property.
iii) Mr Bharj falsely gave evidence that he had contributed towards the purchase of the Property £20,000 in cash and a further £60,000 by releasing a debt, and that Mrs Bharj had contributed £30,000.
Pausing there, it will be noted that in my judgment in the ownership claim I rejected Mr Singh's claim to be the sole beneficial owner, and accepted as correct what Mr Roshan now says to have been the false evidence of Mr (and Mrs) Bharj in reaching my conclusions.
Continuing with the assertions in the Particulars of Claim, Mr Roshan says that neither he nor the members of the Gurdwara are bound by the judgment in the ownership claim as they were not parties to it and there was no claim that the Property was held on trust for them. Mr Roshan says that he and the members are therefore entitled to assert that the Property is charity property. Furthermore, he says that my judgment ought to be set aside as having been procured by fraud, because each of Mr Sohan Singh, Mr Bharj and Mrs Bharj (knowing what Mr Roshan says is the true history of the purchase of the Property) thus knew that their respective claims were false and fraudulent.
Mr Roshan goes on to say that the TOLATA claim also ought to be set aside as it was brought by Mr & Mrs Bharj in reliance upon the decision in the ownership claim, which itself had been obtained by fraud as they were aware.
On 14 September 2016 Mr Sohan Singh served a Defence (entitled "Response of the First Defendant) in which he stated that he "does not deny the matters stated in the Particulars of Claim" and that he "confirms that he does not assert any personal proprietary interest in the Property save that such interest is held on behalf of and for the benefit of the Gurdwara." Mr Sohan Singh expressly "admits and does not deny or raise issue with" the entirety of the Particulars of Claim". It is clear, therefore, that Mr Sohan Singh's current position is that he says he made a false claim and gave false evidence before me in the ownership claim.
On 15 September 2016 Mr & Mrs Bharj served their Defence to...
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