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Businessman loses property over debt

by Staff reporter
15 Dec 2019 at 12:24hrs | Views
A BULAWAYO businessman had his property which included three vehicles attached by the Sheriff after he failed to pay a debt of US$384 177 he owed a fellow businessman.

The property attached from the house includes a Toyota Rav4 rated at RTGS$20 000, Mazda Axela valued at RTGS$15 000, Honda Odyssey valued at RTGS$12 000, double-door fridge (RTGS$7 000), dinner table and chairs worth $8 000, treadmill priced at $5 000 and a four-piece leather brown sofa set which costs RTGS$15 000.

The attachment followed a judgement by the High Court's Justice Martin Makonese that Ismail Moosa Lunat should pay the US$384 177 debt owed to fellow entrepreneur Mohamed Zakariya Patel at the prevailing interbank rate.

Justice Makonese described Lunat's claim that he had signed the document because Patel had threatened to sell properties belong to relatives as "improbable and utterly ridiculous".

Lunat was also ordered to pay the costs of the suit.

Acting on the High Court judgment, the Sheriff on Friday, proceeded to attach and remove moveable property from Lunat's house in Kumalo and also from his offices at Davids Mansions. In addition, the Sheriff was instructed to attach 50 percent of the shareholding in Dodge Seven Investments (Pvt) Ltd, a company that Lunat co-owns with his wife Angela Maria Coelho Costa Lunat.

According to a reliable source who is close to Lunat, the Sheriff cleaned Lunat's house of all his property and left beds only.

The writ of attachment further read that if the moveable property from the said premises are insufficient to satisfy the judgment, the Sheriff should proceed to attach Lunat's Baxendale Road Kumalo property under Deed of Transfer 56/2008.

The property attached from the house includes a Toyota Rav4 rated at RTGS$20 000, Mazda Axela valued at RTGS$15 000, Honda Odyssey valued at RTGS$12 000, double-door fridge (RTGS$7 000), dinner table and chairs worth $8 000, treadmill priced at $5 000 and a four-piece leather brown sofa set which costs RTGS$15 000.

Patel's lawyers, Samukange Hungwe Attorneys through Gula Ndebele and Partners, called for the speedy attachment of the moveable property as they argued that Lunat was a man without integrity.

"We genuinely believe that the judgment debtor is a man without integrity. He has defrauded not only our client but several other people known to us. It may be in the best interests of justice, in our view, that you exercise your discretion in terms of Rule 326A (b) (i) of the High Court Rules, 1971," reads the letter to the Sheriff of Zimbabwe.

According to court papers, Lunat signed an acknowledgement of debt on 11 January 2019, admitting that he owed Patel US$384 177. The respondent signed the acknowledgement of debt in the presence of a witness, Hetnesh Patel. The respondent renounced the benefits of all the legal exceptions, non cuasa debiti, non numeratae pecuniae, error calculi, revision of accounts, no value received and other exception which might or could be taken. The respondent acknowledged that he was fully acquainted with the full meaning and effect of the instrument before appending his signature thereto.

Lunat is set to appear in court on January 16, 2020 on trial for allegedly defrauding a fellow businessman Adam Horton of US$290 000 before reportedly trying to swindle a couple of its house to cover up the theft.

The papers further claim that the original debt was   US$449 000, but Lunat had managed to pay US$64 823, leaving an unpaid balance of US$384 177. The respondent duly signed the document, reflecting the reduction in the debt.

However, Lunat claimed in court that he was forced to sign an acknowledgement of debt after Patel threatened to sell properties belonging to companies owned by his relatives whose title deeds were in possession of Patel. Lunat further contended that the amounts claimed related to monies paid to third parties.

Patel's lawyers, however, dismissed Lunat's defence as they argued that the respondent made no reports to the police or anywhere else about the coercion until demand was made for payment of debt.

In his ruling, Justice Makonese said Lunat's defence was "clearly manufactured and designed to deceive the court". He also pointed out that the respondent was "relying upon duress in order to impugn an acknowledgement of debt that he signed", but "he could have avoided signing the agreement" as "the nature of the coercion is vague and remote''.

Justice Makonese described Lunat's claim that he had signed the document because Patel had threatened to sell properties belong to relatives as "improbable and utterly ridiculous".

He said: "It is difficult to comprehend how the applicant (Patel) could effect the sale of properties belonging to third parties. Respondent (Lunat) asserts that the title deeds were held by applicant for entirely separate transactions. The allegations of threats and coercion is clearly illusory.

"Curiously the respondent has not taken the court into its confidence by placing before the court any supporting affidavits of persons/ relatives, whose property was under threat of sale by the applicant. The court will not take every defence as plausible unless it is consistent with all the facts surrounding the execution of an acknowledgement of debt.

"An acknowledgement of debt is what it is. It is an indication by the debtor that he owes the creditor a specific sum of money. Business transactions would be seriously impended if valid legal contracts were to be unenforceable on tenuous defences being raised by defaulting debtors. The maxim caveat subscripto must be applied on the facts of this matter."

Meanwhile, Lunat is set to appear in court on January 16, 2020 on trial for allegedly defrauding a fellow businessman Adam Horton of US$290 000 before reportedly trying to swindle a couple of its house to cover up the theft.

According to police sources, Lunat is set for more court appearances as he is alleged to have swindled many unsuspecting business people of their monies after managing to win their trust.


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Source - sundaymail

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