REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE SUB REGISTRY, SAN FERNANDO H.C.A. NO. S-835 OF 2003 Between RBTT BANK LIMITED Plaintiff And MALA RAGOONANAN ARJOON Defendant Before the Honourable Mr. Justice David Alexander (Ag.) Appearances: Mr. Derek Ali for the Plaintiff Ms. Lisa Francis for the Defendant JUDGMENT 1. By Mortgage Bill of sale dated the 2 nd March, 2001, made between the Defendant MALA RAGOONANAN-ARJOON and the Plaintiff RBTT BANK LIMITED ( the bank ), in consideration of the sum of $80,000.00 loaned to the Defendant by the bank, the defendant assigned a Toyota Yaris motor vehicle registration No. PBK 3245 to the bank by way of security for the payment of the said sum together with interest thereon at the rate of 8.5 per cent per annum. Page 1 of 17
2. The loan was to be repaid by 60 monthly instalments comprising the sum of $1,898.00 on the 30 th day of each month from the 30 th April, 2001, and the sum of $1,952.00 on the 30 th March, 2001. 3. The Mortgage Bill of Sale provided that if any instalment or part thereof shall not be paid when due, the whole of the balance of the principal sum (less interest for the unexpired term of the loan) shall become immediately due and payable together with interest thereon at the rate of 16.50 per cent per annum. 4. It was further provided in the Mortgage Bill of Sale that in case the defendant shall default in the payment of any instalment or of any part thereof it shall be lawful for the bank, its servants or agents without previous notice to her, to seize and take possession of the said motor vehicle and after the expiration of five clear days from the date of seizure sell the motor vehicle by public auction or private contract. 5. The Defendant did not pay her instalments on the said loan for the months of June and July, 2002, for which the bank naturally wrote her advising her of the status of her account and requesting payment by letters dated the 10 th July, 2002, the 26 th July, 2002, and the 5 th August, 2002. Despite these letters, the Defendant failed to bring her account up to date. 6. On the 4 th October, 2002, pursuant to the provisions of the Mortgage Bill of Sale, the bank seized the said vehicle. The bank by letter dated 15th October, 2002 informed the Defendant that it did seize the vehicle and requested full payment of her debt within seven days failing which it would exercise its power of sale. 7. On the 27 th March, 2003, the bank sold the said vehicle for the sum of $28,000.00. By letter dated 7 th April, 2003, the bank informed the Defendant of the said sale and set out the manner in which the proceeds of sale were distributed. Page 2 of 17
8. By letter dated 25 th April, 2003, the bank advised the Defendant that the account was not being serviced and demanded full repayment of the balance due and owing as at the 22 nd April, 2003, in the sum of $49,233.62. The Defendant made no further payments towards her loan. 9. The bank now claims the said $49,233.62 with interest thereon at the rate of 16.50 percent per annum from the 23 rd April, 2003. 10. The Defendant has filed a defence and counterclaim to the bank s claim wherein paragraphs 6 to 12 contain the material facts upon which she is relying for a judgment in her favour. I now set out those paragraphs: 6. On or about June/July 2002, the Plaintiff undertook and promised the Defendant upon which said promise the Defendant relied, that the said motor vehicle would not be seized unless three or more monthly instalments fell into arrears. The Defendant defaulted in payments for June and July 2002, only, but continued to make regular payments which were applied to August, September and October, 2002. 7. On or about the 4 th October, 2002, in breach of the said promise the Plaintiff seized the said motor vehicle when two instalments only were due and owing thereunder. 8. By letter dated 15 th October, 2002, the Plaintiff informed the Defendant that the total sum of $66,341.28 was due and owing. Thereafter, on or about February, 2003, the Plaintiff and Defendant instituted negotiations for the refinancing of the loan to the Defendant to liquidate the said sum since adequate bids for the said motor vehicle were not secured by the Plaintiff. 9. The Defendant avers that the Plaintiff guaranteed the refinancing of the said loan to the Defendant and advised the Defendant not to seek financing elsewhere which at all material times was available to the Defendant upon which representations the Defendant relied. Page 3 of 17
10. In breach of the said representations and promise stated in paragraph 9 herein the Plaintiff sold the said motor vehicle on or about April, 2003, without notice to the Defendant and before the said loan was refinanced for the sum of $28,000.00 not being the highest bid received and also being a value grossly lower than the then current market value of the said motor vehicle in breach of the Plaintiff s fiduciary duty to the Defendant. 11. The Defendant avers that the said motor vehicle was at the time of sale a one year old Toyota Yaris in excellent condition valued at approximately $75,000.00. 12. In further breach of the Plaintiff s duty, the Plaintiff poorly, improperly and unsafely stored the said motor vehicle and further removed and or caused to be stolen the stereo system from the said motor vehicle and the expensive tyres which were installed on the said motor vehicle at the time of seizure by the Plaintiff. 13. - - - And the Defendant counterclaims: a) Damages for breach of oral contract and/or misrepresentation. b) Damages for breach of the Plaintiff s fiduciary duty. c) Damages for conversion of motor vehicle PBK 3245 and/or any part thereof. d) To loss of stereo system and tyres $5,000.00. 11. The Defendant s evidence is that after the loan fell into arrears in or about June/July, 2002, she was informed by Ms. King-Maughn an officer of the bank, that the motor vehicle would not be seized unless she defaulted in three or more instalments and since she was in arrears for two months only, the motor vehicle will not be seized by the bank if she kept up with accruing current instalments. As a result, the Defendant paid the instalments for August, September and October, 2002, during which time Ms. King-Maughn with whom she was in continual contact never mentioned that the bank planned to seize the vehicle. Page 4 of 17
12. On the 4 th October, 2002, agents of the bank seized the vehicle while being driven in San Fernando. A few days later, the Defendant together with her husband visited the bank where she met with Ms. King-Maughn who informed her that the bank had planned to sell the car. 13. Next, the Defendant says that on the 2 nd January, 2003, she in company with her husband met with Sheldon Quash-Boxhill another bank officer who represented to them that if the sale scheduled that month did not fetch a price to liquidate or substantially liquidate the loan then the bank would refinance the loan if she made a lump sum deposit. By letter dated 8 th January, 2003, the Defendant outlined her proposals to Mr. Boxhill as follows: Further to our discussion on Thursday 2 nd January, 2003, at your office, the options you offered have been carefully considered. I would be most appreciative if we can attempt to implement them in the following order: 1. Sell the car for a price that will completely liquidate the loan balance. 2. Should this option be unsuccessful, both parties i.e. the bank and myself, will try to find the best possible price for the vehicle. I will be happy if you can communicate to me the professional valuation you obtained on the vehicle. 3. Now, failing this, I will make as you suggested, a deposit of $10,000.00 and a definite arrangement for timely instalments should the vehicle be returned to me. 14. At this point, the Defendant and the bank were clearly at cross purposes, as the contents of Mr. Boxhill s letter to her dated 9 th January, 2003, so suggests. This letter which bears the caption Proposal to Liquidate Loan Account #881319981000 reads: Page 5 of 17
We refer to the meeting between yourself and the writer on January 2, 2003 and your subsequent proposal relative to the caption and advise as follows:- It is our intention to re-advertise the Toyota Yaris PBK 3245 in the daily print media and when a satisfactory bid is received, the bank will notify you of same and allow you the opportunity to source an independent buyer if you wish. In the interim however, you are urged to make the $10,000.00 lump sum, payment as discussed forthwith, as it is unlikely that in the event the said vehicle is sold, the proceeds will be sufficient to retire the debt in full. 15. Neither the Defendant s letter of the 8 th January, 2003, nor Mr. Boxhill s of the 9 th January, 2003 makes any mention of the bank refinancing the loan as the Defendant claims was represented by Mr. Boxhill. Speaking of a meeting with Mr. Boxhill on the 2 nd January, 2003, the Defendant s letter of the 8 th January, 2003, is requesting whether the options offered by him could be implemented by the bank first selling the car at a price that will completely liquidate the loan; should this fail then the Defendant and the bank would then try to find the best possible price for the vehicle; failing this she would as Mr. Boxhill suggested deposit $10,000.00 and arrange for timely instalments should the vehicle be returned to her. There was nothing there about refinancing. 16. Mr. Boxhill s letter on the other hand, is about re-advertising the sale and notifying and allowing the Defendant the opportunity to source an independent buyer if she so wishes on receipt of a satisfactory bid. She was also urged to deposit the $10,000.00 lump sum payment. No mention here of refinancing. 17. The bank by Mr. Boxhill s letter dated 23 rd January, 2003, informed the Defendant that the vehicle was advertised for sale, that the highest offer received was $30,000.00 and that she had before the 29 th January, 2003, the opportunity to Page 6 of 17
obtain a higher price, failing which it was the bank s intention to sell the vehicle to the highest bidder. 18. In response, the Defendant s letter dated 27th January, 2003, informed the bank inter alia that she had three parties interested in the purchase of the vehicle and that the said lump sum of $10,000.00 would have been paid if the bank were returning the car to her. 19. The first mention of the word refinance was made in the Defendant s letter dated 10 th February, 2003, to Mr. Quash-Boxhill. In this letter she informs Mr. Quash Boxhill I hereby confirm the verbal proposal, which is RBTT refinance the loan when I make a deposit of $10,000.00 towards the loan and a salary assignment will be given. When my back pay is received around April and which is approximately $30,000.00 I will use it as either a Roytrin deposit or a lump sum payment towards the loan. 20. The bank responded by Mr. Quash-Boxhill s letter to the Defendant dated 17 th February, 2003. This letter appears to be of some importance to the Defendant s case since Ms. Francis, Counsel for the Defendant cross-examined the bank s witness Rosabell Singh about this letter at some length and also made more than passing reference to it in her closing submissions. The letter is addressed to the Defendant at Mendez Village, Siparia. It states from the second paragraph: The bank has agreed in principle to abort the sale of the vehicle at caption and consider a refinance of your loan facility, on the condition that the following criteria are met:- 1. An immediate lump sum payment of $10,000.00 is paid by you towards the debt by latest February 20, 2003. Page 7 of 17
2. A liability statement from the Ministry of Education outlining the total amount of monies due/payable to you is submitted to the bank by February 24, 2003. 3. Upon receipt of the above mentioned funds (i.e. $30,000.00) on or around April, 2003, by you, it is assigned to RBTT Bank Limited and/or deposited to a Roytrin Account and held as further collateral to loan account No.8813199810. Please be advised that in the event conditions 1 and 2 are not met by the stipulated dates, all arrangements made to date will be considered Null and void and the bank will be left with no alternative but to immediately initiate legal proceedings against you without further notice. We advise that time is of the essence in this matter 21. In the instant action, Ms. Francis has placed heavy reliance on the doctrine of Promissory Estoppel. She submits that the Defendant relied on the oral representation of the bank through its officers Mr. Boxhill and Ms. King-Maughn and Ms. T. Rauseo that the motor vehicle will not be sold and the loan will be refinanced. In such instance, she submits promissory estoppel applies which is a promise or a representation by the bank that it would not enforce its strict legal rights under the Mortgage Bill of Sale to sell the vehicle. 22. Mr. Ali Counsel for the bank in response submits that promissory estoppel is not the Defendant s case by her filed defence, nor has any application to amend been sought. His case is that the Defendant must fail on every issue raised by her, because her evidence was not credible. 23. The first issue to be dealt with therefore, is whether the Defendant can rely on the doctrine of promissory estoppel when it was not specifically pleaded in her defence and counterclaim. I cannot agree with Mr. Ali on this issue. It is too well-known a principle that facts and not law must be pleaded. The Supreme Page 8 of 17
Court Practice 1985 Vol 1 18/7/2 provides: Courts must consider and deal with the legal result of pleaded facts, although the particular result alleged is not stated in the pleading (per Scrutton L.J. in Lever Brothers Ltd. -v- Bell [1931] 1 KB 557 at 583. The inference of law to be drawn from the pleaded facts need not be stated in the pleadings. Thus, if the material facts are alleged, it is not necessary to plead an implied warranty (per Denning L.J. in Shaw v Shaw [1954] 2 Q.B. 429 at 441. Ms. Francis in my view can properly rely on promissory estoppel in this case since it is a legal inference to be drawn from the facts pleaded at paragraphs 6 to 10 of the counterclaim. 24. The next issue which arises is whether or not promissory estoppel is applicable to the Defendant. The doctrine was given life by Lord Cairns in Hughes v Metropolitan RY (1877) 2 App. Cas. 439 at 448, where he stated that if parties who have entered into definite and distinct terms involving certain legal results - certain penalties or legal forfeiture afterwards by their own act or with their own consent enter upon a course of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will not be enforced, or will be kept in suspense, or held in abeyance, the person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties. 25. As stated by Ms. Francis citing Chitty on Contracts Vol 1 (I am here relying on the 29 th edition Para 3-085), for the equitable doctrine to operate there must be: (1) a legal relationship giving rise to rights and duties between the parties; (2) a promise or a representation by one party that he will not enforce against the other his strict legal rights arising out of that relationship; (3) an intention on the part of the former party that the latter will rely on the representation; (4) and such reliance by the latter party. Page 9 of 17
26. As to the above requirements, there can be no denying that a legal relationship giving rise to rights and duties existed between the bank and the Defendant, they being the parties to the Mortgage Bill of Sale. Whether there was a promise or a representation by the bank that it will not enforce against the Defendant its strict legal rights arising out of that relationship and a reliance by the Defendant on such promise or representation have to be examined. 27. The promises which the Defendant says give rise to the estoppel are: 1. that the motor vehicle will not be seized unless she defaulted in three or more instalments; 2. that the vehicle will not be sold; and 3. that the loan will be refinanced. As regards the first promise that the vehicle will not be seized unless the Defendant defaulted in three or more instalments, the Defendant s evidence is that after the loan fell into arrears in June and July, 2002, she requested of the bank some time to pay the instalments and was informed by Ms. King-Maughn that the vehicle will not be seized unless she defaulted in three or more instalments. Since she was in two months arrears only, the vehicle would not be seized by the bank if she kept up with accruing instalments. She thus paid her instalments for August, September and October, 2002, but the bank s servants or agents seized the vehicle on the 4 th October, 2002. 28. The bank called one witness Ms. Rosabell Singh, an Account Officer at the bank. Ms. Singh testified that she has worked at the bank s Risk Management Compliance Unit for the past five years from January, 2003. She took conduct of the Defendant s account in April, 2003 but has had no dealings with the Defendant. She agreed that Ms. King-Maughn, Mr. Quash-Boxhill and Ms. Rauseo were the bank s officers who had personal dealings with the Defendant. 29. In those circumstances, while Ms. Singh could not shed any light on the discussions which the Defendant would have had with the other officers of the Page 10 of 17
bank, I do not agree with Ms. Francis that one must therefore accept the Defendant s version of those discussions. 30. When all the evidence is considered, I cannot conclude on a balance of probabilities that Ms. King-Maughn informed the Defendant that the vehicle will not be seized as the Defendant has suggested. In none of the letters in evidence whether from the bank or the Defendant is there any record of a discussion to that effect between Ms. King-Maughn and the Defendant. Indeed, what weighs heavily against the Defendant, is the glaring lack of evidence of any protest by her or her husband to Ms. Maughn against the seizure of the vehicle. The Defendant s evidence on the other hand is that she and her husband visited the bank a few days after the seizure, where she met Ms. King-Maughn and had talks with her. Ms. Maughn then informed the Defendant that the bank had planned a sale of the vehicle. Had Ms. King-Maughn made the alleged promise to the Defendant, the Defendant s evidence on what transpired subsequent to the seizure of the vehicle no doubt would have been different. 31. Both the alleged promises Nos. (2) and (3) above can conveniently be considered together i.e. that the vehicle will not be sold and that the loan will be refinanced. The bank s sole reference to these alleged promises was in Mr. Quash-Boxhill s letter dated 17 th February, 2003, to the Defendant, wherein he informed her that the bank had agreed in principle, to abort the sale of the vehicle and consider a refinance of the vehicle on condition that the criteria set out in the letter were met by her. The Defendant claims that she never received this letter as it was addressed to her at Mendez Village, Siparia which was not her correct address. Her correct address was Lot 5, Mendez Village, Siparia, near Quinam Government School which was the address stated on the Mortgage Bill of Sale. 32. Mr. Ali in cross-examination of the Defendant on whether or not she received this letter, referred her to Mr. Quash- Boxhill s letter to her dated 9 th January, 2003, Page 11 of 17
which was also addressed to her at Mendez Village Siparia, but which she admitted she did receive. Mr. Ali s cross-examination continued as follows: QUESTION: Are you being truthful when you say you never received R.S. 12 (i.e. letter dated 17 th February, 2003)? ANSWER: I am. QUESTION: What difficulty does that address pose? ANSWER: Because it is very general. There are people in the area with my last name. Sometimes they would deliver to the wrong house. They would return it to the post and the post would send it back. QUESTION: At the time the letters were addressed to you in 2002/2003 how long were you living in Mendez Village? ANSWER: I was not living there. QUESTION: Go to R.S. 6 (i.e. the Defendant s letter dated 8 th January, 2003, to Mr. Quash-Boxhill) your hand written letter. You give Mendez Village, Siparia as your address. Go to R.S. 11, another of your letters of the 10 th February, 2003. Why did you list Mendez Village as your address if you weren t living there? ANSWER: Just to identify to Mr. Boxhill that the letter came from me because the complete address was given on the Mortgage Bill of Sale. QUESTION: Go to R.S. 10. Another of your letters (dated 27 th January, 2003). You give 109 Mendez Village as your address. It is different. Why? ANSWER: That was when the Post Office started to deliver mail. Before we had to go to collect mail. QUESTION: Why did you not put that address of the 27 th January, 2003, on the letter dated 10 th February, 2003? ANSWER: It was probably an oversight. QUESTION: Look at R.S. 9. A letter dated January, 23 rd 2003, it refers to the seized Yaris. Another address Lot 5 Mendez Village. You received it? Page 12 of 17
ANSWER: Yes. 33. I deduce from the Defendant s answers to Mr. Ali, that it was more likely than not that that letter dated 17 th February, 2003, did reach her. It was the only letter which she says she did not receive from the bank, but, some of the others which she also received did carry the identical address. I am not impressed that the Defendant did not receive that letter. 34. But the Defendant in my view has found herself between a rock and a hard place. If it is true that she did not receive the letter, then she could have had no knowledge of its contents and therefore could not rely on the promises contained therein. This letter however, is the bank s response to the Defendant s letter dated 10 th February, 2003, and refers to Mr. Quash-Boxhill s subsequent conversation with the Defendant on the 17 th February, 2003. It follows therefore that the contents of the letter were not unknown to her. 35. The Defendant cannot in the circumstances hope for relief from this Court by reason of her failure to comply with the bank s criteria for aborting the sale of the vehicle and for the refinancing of the loan. In fact, her failure to comply with the bank s conditions was to her detriment regarding the sale of the vehicle and it is to her detriment now. 36. I now turn to requirements Nos. (3) and (4) for the application of the doctrine of promissory estoppel viz. an intention on the part of the bank that the Defendant will rely on the representation and such reliance by the Defendant. There is no evidence to suggest a lack of intention on the bank s part that the Defendant should have relied on Mr. Quash-Boxhill s representation that the sale would have been aborted and the loan refinanced had the Defendant complied with the bank s conditions. Notwithstanding that I agree with Ms. Francis that the time given the Defendant to comply with the bank s conditions was too short and that it is unlikely that the Defendant even received that letter before the date for Page 13 of 17
compliance, the Defendant has done nothing pursuant to Mr. Quash-Boxhill s representations. Such omission by the Defendant in my opinion negates the operation of promissory estoppel. 37. Where all the requirements for the operation of the doctrine are present, for it to take effect, it must be inequitable for the promisor to go back on the promise. In Societe Italo - Belge Pour Le Commerce et L Industrie -v- Palm and Vegetable Oils (Malaysia) SDN. BHD (The Post Chaser ) [1981] 2 Lloyd s Law Reports 695 one of the questions considered was whether there was any sufficient reliance by certain sellers on a representation to give rise to an equitable estoppel. Robert Goff J. at Page 701 approached the matter as follows: The fundamental principle is that stated by Lord Cairns, viz. that the representor will not be allowed to enforce his rights where it would be inequitable having regard to the dealings which have thus taken place between the parties. To establish such inequity, it is necessary to show detriment; indeed, the representee may have benefitted from the representation and yet it may be inequitable, at least without reasonable notice, for the representor to enforce his legal rights Furthermore it would be open to the Court, in any particular case, to infer from the circumstances of the case that the representee must have conducted his affairs in such a way that it would be inequitable for the representor to enforce his rights, or to do so without reasonable notice. But it does not follow that in every case in which the representee has acted, or failed to act, in reliance on the representation, it will be inequitable for the representor to enforce his rights; for the nature of the action, or inaction, may be insufficient to give rise to the equity, in which event a necessary requirement stated by Lord Cairns for the application of the doctrine would not have been fulfilled. 38. It would be inequitable for the promisor to go back on the promise if the promisee has acted in reliance on the promise in such a way so that he can no longer be Page 14 of 17
restored to the position in which he was before he took such action. In Maharaj v Chand [1986] A.C. 898 in reliance on the Plaintiff s representation that a house would be a permanent home for the Defendant and her children, the Defendant gave up her flat and went to live with the Plaintiff in the house. She used her earnings for household requirements and looked after the family. The Plaintiff left in 1980 permitting the Defendant to remain but he subsequently commenced proceedings for vacant possession. At page 908 letters B D Sir Robin Cooke sitting in the Privy Council found that in reasonable reliance on the representation the Defendant acted to her detriment by giving up her flat. It was not possible to restore her to her former position. In those circumstances it would plainly be inequitable for the Plaintiff to evict her. 39. The question I must consider, in keeping with these authorities is what did the Defendant do or not do that resulted in it being impossible to restore her to her former position so that it would have been inequitable for the bank to sell the car and not refinance the loan. The simple answer is nothing. The Defendant s evidence is that in reliance on the bank s representation that it would refinance the loan, she did not pursue her plans to approach the Hindu Credit Union, or the Intercommercial Bank for refinancing as she had decided to do if the bank did not agree to refinance the loan. 40. The Defendant s evidence on this point is all speculative. There is no evidence that the refinancing by another financial institution was guaranteed; her attempts to do so could have been successful or unsuccessful. The Defendant s failure to do anything pursuant to the bank s representation is in my opinion evidence that she did not rely on the bank s representations. 41. This inaction on the Defendant s part can be considered a failure by her to provide consideration which rendered the bank s representation not contractually binding with the result that the doctrine was not brought into operation. In Williams v Stern (1879-80) L.R. 5 Q.B.D. 409 the Plaintiff gave the Defendant a bill of sale Page 15 of 17
on his goods as security for money advanced. The loan was to be repaid by instalments, and the bill of sale authorized the Defendant at any time after the execution thereof to take and retain possession of all the goods comprised in it until all the money payable under it should have been satisfied. It also contained a power of sale. The Plaintiff having paid thirteen instalments, asked the defendant for time when the fourteenth became due; the Defendant gave him a week, but seized the goods on the third day and sold them before any further default by the Plaintiff. Bramwell L.J. stated at page 412: I do not think that his promise was sufficient to prevent him from putting in force the powers of the bill of sale: it was not an undertaking which bound him: the promise was not supported by any consideration. The Plaintiff was not induced to alter his position. A promise to wait founded upon a good consideration would have prevented the Defendant from seizing the goods comprised in the bill of sale 42. I hold that the Defendant cannot avail herself of the doctrine of promissory estoppel. 43. The Defendant next alleges that at the time the vehicle was seized it was in very good condition, but the price which the bank fetched for its sale was because of its poor condition as a result of being improperly secured by the servants or agents of the bank. Again, I am not prepared to accept the evidence of the Defendant alone which is in any event very general on this aspect of the case. Ms. Francis has attempted to persuade the Court otherwise by placing reliance on the bailiff s report on the car s condition when it was seized on the 4 th October, 2003, and an adjuster s report dated 3 rd January, 2003. I cannot take cognizance of the contents of these two documents since it was upon Ms. Francis objections to their admissibility that I ruled them admissible only for the purpose of having been received by the bank. Further, the Defendant has not adduced any evidence of having visited the place where the vehicle was kept after seizure in order to inform the Court of the conditions under which it was kept. There were no complaints to the bank by the Defendant prior to this action of the car stereo being Page 16 of 17
stolen or tyres being replaced with inferior ones. The Defendant has therefore failed to prove that the vehicle was sold in a poor condition as a result of the circumstances under which it was stored. 44. Finally, as to the Defendant s claim that the vehicle was sold at an under value, one only has to look at the bids received by the bank which ranged between $15,000.00 and $30,000.00 in order to dispel this allegation. 45. My order is that there be judgment for the Plaintiff on its claim with costs certified fit for advocate attorney to be taxed in default of agreement; the Defendant s counterclaim is dismissed with costs to be paid by the Defendant to the Plaintiff to be taxed in default of agreement. Dated this 7 th day of November, 2008. David Alexander Judge (Ag.) Page 17 of 17