bank of baroda tanzania ltd vs gold and chicks limited another 2022 tzhccomd 178 22 june 2022

IN THE HIGH COURT OF UNITED REPUBLIC OF

TANZANIA (COMMERCIAL DIVISION) AT DAR-ES-SALAAM COMMERCIAL CASE. NO.139 OF 2021 BANK OF BARODA TANZANIA LTD.... ....PLAINTIFF VERSUS .. X . GOLD'N CHICKS LIMITED.......... ........... .,1st DEFENDANT RAGHAVENDRA SRIPA TRAO JOSHI....... ~2ND DEFENDANT Date of the Last Order: 10/05/2022 Date of the Ruling: 22/06/2022 - :

CONSENT JUDGMENT NANGELA/J.: This consent judgment arises from a Plaint filed in thisCourt by the Plaintiff on 3rd December 2021 seeking for judgment and decree of the Court against the Defendants, jointly and severally, as here below: 1. That, the 1st Defendant breached the facility Agreement by his failure to discharge its duties and Page 1 of 7 obligations in accordance with that agreement.

2. That, the 1st and 2nd Defendants breached the Mortgage Deed by their failure to fulfill the covenants and commitment to repay the loan following the 1st Defendant's default in repaying the loan.

3. That, the 2nd Defendant breached X. the personal .guarantee by.failure to fulfill what he guaranteed.

4. That; I the Defendants be zordered to immediately pay the Plaintiff --'the entire outstanding amount of the... overdraft which is TZS 220/988,796.60/= being the ; principal amount and interest.

5. That, the Defendants be ordered to pay interest compounded monthly on the unpaid sum from the due date of actual payment.

6. That, the Plaintiff be allowed to sell the mortgaged property with Page 2 of 7 Legal Mortgage of Property Farm No.866, CT. No.40273, L.O No.131126, Area 3.910 Hectors, Visiga Kibaha Area.

7. That, the Plaintiff be allowed to sell the assets in accordance with the debenture and mortgage. ' 8. That, the Defendant be ordered to \\ ■ / pay the Plaintiff general damages < to cover the . loss , the Plaintiff ? suffered for > the Defendant's failure to discharge their duties Si XX ' and \obligation . under the Agreements; the amount to be . - assessed by the Court.

9. The?Defendants be ordered to pay ■ the Plaintiff interest on the decretal amount from the date due to the date of full payment thereof at the prevailing commercial rate. 10 .The Defendants be condemned to pay the Plaintiff costs of this suit Page 3 of 7 and any incidental detriments to the suit. 11 . Any other relief(s) that the Honourable Court may deem fit. On the 11th February 2022, the Defendants filed a joint written statement of defence denying the claims and putting the Plaintiff to a strict proof. Since the pleadings were complete, the suit was scheduled for a\first pre-trial \ conference which was to take place bn the 5th of April 2022. „ .. On the material date when the matter was scheduled for the first pr^-tria I ^conference, Mr Nathan Tibaigana, learned advocates appeared for the Plaintiff. The Defendants enjoyed the services of Mr Shaibu Changaluma, learned advocate. When Mr Tibaigana rose to address this Court, he informed the Court that, although the parties have convened for a first pre-trail conference, they wish to pray for a short adjournment as they intended to hold a Page 4 of 7 settlement discussion with a view to settle the matter amicably. His prayer was supported by Mr Changaluma and this Court granted the parties an ample time to accomplish their joint initiatives. On the 10th of May 2022, this Court was informed that the parties had achieved

promising results and were to file a Deed of Compromise within 30 days. Indeed, on the 1st day of June 2022, the parties filed a Deed of Settlement under OrdenXXIII Rule 3 of the Civil Procedure Code, Cap.33 R.E 2019. Z ' On the 22nd day of June 2022, Mr Charles Kisoka and Mr Nathan ... learned — „ Tibaigana, \ ' Zx advocates for the Plaintiff appeared in Court. Mr Shaibu Changaluma, learned advocate for the Defendants did also appear in Court. Mr Kisoka informed this Court about the Deed of Settlement and Compromise of Suit filed by the parties in this Court. He prayed that, the same be recorded and, the suit be marked compromised at the instance of the parties Page 5 of 7 and, as per the Deed filed in this Court, which shall constitute the Judgment and Decree of this Court. Mr Changaluma supported the prayer. In terms of Order XXIII Rule 3 of the Civil Procedure Code, Cap.33 R.E 2019, having filed the Deed of Settlement in this Court, the Court is enjoined to examine the said Deed and if it isxsatiS<ed-that ihe/parties have wholly or partially compromised their, suit, proceed to record their Deed of Settlement? \ " /Z^'k ' . X .. 'YZ I have gone through.the parties' Deed of Settlement and I amJndeed^Sa^isfieOhat the Parties have wholly compromised the suit and the Deed of Settlement */ x. \ x;x deserves to be recorded as forming the Judgement and Decree of this Court. By this

consent decision, therefore, this Court hereby records the Deed of Settlement and declares that the parties herein have compromised and resolved their dispute and, this suit is marked "settled on Page 6 of 7 the compromise of the parties" as evidenced by the terms agreed under the said "Deed of Settlement". For the reasons aforesaid, I hereby make an order that, the "Deed of Settlement" constitutes part and parcel of this Consent Judgment and stands as the Decree of this Court. Order accordingly. x ' ) ; . • z . DATED at DAR-ES-SALAAM ON THIS 22nd DAY High Court of the United Republic of Tanzania ' -" (Commercial Division) Page 7 of 7