AMEER SHAKUR v. GURVENDER SINGH and SONY INVESTMENTS LTD., 2012 BCPC 204

Citation: Shakur, Singh & Sony Invest. v. Vali Enterprises Date: 20120615 2012 BCPC 0204 File No: 10-21885 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: AMEER SHAKUR and GURVENDER SINGH and SONY INVESTMENTS LTD. CLAIMANTS AND: VALI ENTERPRISES LTD., VALI RANJBAR and ABSOLUTE BALIFFS INC. DEFENDANTS - AND ALSO - File No: 10-21931 Registry: North Vancouver BETWEEN: VALI ENTERPRISES LTD. CLAIMANTS AND: SINGH GURDEV, GURVENDER and SONY INVESTMENT LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE W. J.

RODGERS Appearing for Ameer Shakur : Appeared his own behalf Appearing for Gurvender and Sony Investment Ltd : Gurdev Singh Appearing for Vali Ranjbar : Appeared on his own behalf Appearing for Absolute Baliffs Inc. : Sheldon Stibbs

Appearing for Vali Enterprises Ltd : Vali Ranjbar Appearing for Singh Gurdev : Appeared on his own behalf Place of Hearing: North Vancouver , B.C. Date of Hearing: April 26 and May 2, 2012 Date of Judgment: June 15, 2012 [ 1 ] These two Claims arise from two leases of commercial premises located at 151 and 153 East 3 rd Street, North Vancouver. [ 2 ] In file # 10-21931, the landlord Vali Enterprises Ltd. alleges a failure on the part of the tenant to pay rent due under the two leases and seeks judgment against the tenant Gurvender and Sony Investment Ltd., and its principal Mr.

Singh in his personal capacity as guarantor of the company’s obligations. [ 3 ] In file # 10-21885, Gurvender and Sony Investment Ltd. seeks judgment against Vali Enterprises and Absolute Bailiffs Inc. alleging that Absolute Bailiffs wrongfully entered into the premises pursuant to a distress warrant issued by Vali Enterprises. It is further alleged by Gurvender and Sony Investment Ltd. that Absolute Bailiffs sold the assets found inside the premises for less than fair market value. The co-plaintiff, Mr.

Shakur seeks judgment against Vali Enterprises and Absolute Bailiffs alleging that Absolute Bailiffs wrongfully seized his assets found inside the premises and then sold these assets for less than fair market value. [ 4 ] There is a slight typographical error in the style of cause of file #10-21885 wherein the claimant is described as “Gurvender Singh and Sony Investment Ltd” rather than “Gurvender and Sony Investment Ltd”. I would have permitted an amendment to correct this error although the error does not affect the result of the trial.

TOTAL AMOUNT OF RENT OWING [ 5 ] The total amount of rent owed by Gurvender and Sony Investment Ltd., to Vali Enterprises under the terms of the two leases at 151 and 153 East 3 rd Street, North Vancouver is $22,303.27 as of January 2010 when the Distress Warrant was executed. Gurvender and Sony Investment Ltd. agrees the unpaid rent is this amount. [ 6 ] The critical issue in this trial is whether Vali Enterprises has proven on the balance of probabilities that Mr. Singh is personally liable for the unpaid rent at either of the two premises. Mr.

Singh submits that at all times he signed the leases only on behalf of his company, Gurvender and Sony Investment Ltd. Mr. Singh further submits he did not sign the leases in his personal capacity and that he had not guaranteed payment of the rent. HISTORY OF THE TWO LEASES [ 7 ] It is necessary to review the history of the leases which were entered into by Vali Enterprises and various tenants. [ 8 ] With respect to 151 East 3 rd Street, the initial lease was dated October 8, 2004, between Vali Enterprises and M.A.T. with an expiry date of October 30, 2007. On November 15, 2004, the Lease was assigned to F.H.

Inc. and M.G. was named as personal covenantor of the obligations of F.H. Inc. [ 9 ] On May 23, 2006, the lease was assigned again. In this document, the Assignee is described as “Gurvender and Sony Investment Ltd. and Gurdev Singh”. Mr. Singh is not described as being a covenantor similar to M.G. who guaranteed the obligations of F.H. Inc. when the lease was assigned to that company on November 15, 2004. [ 10 ] The signature page of the Assignment dated May 23, 2006, does not describe Mr. Singh as signing in his personal capacity. The signature page only describes the signature of Mr.

Singh as being on behalf of “Gurvender and Sony Investment Ltd by its authorized signatory”. [ 11 ] The lease of 151 East 3 rd Street was extended until October 30, 2010 by an Agreement dated September 20, 2007. The Lessee is described as Gurdev Sing (sic) and Gurvender and Sony Investment. It is signed by Mr. Singh in his personal capacity and as the authorized signatory of Gurvender and Sony Investment. [ 12 ] With respect to 153 East 3 rd Street, the initial lease was dated December 27, 2001 between Vali Enterprises and A.E.S. and was to expire on December 31, 2005.

On October 28, 2004, A.E.S. assigned the lease to F.H. Inc. and M.G. was named as the personal Covenantor of the obligations of F.H. Inc. under the lease. On November 22, 2005, the lease with F.H. Inc. was extended until December 31, 2009. In the Extension Agreement, F.H. Inc. was referred to as N.W. Trading Inc. because of a name change; the two companies are in fact one legal entity. [ 13 ] On May 23, 2006, Vali Enterprises consented to an Assignment of the Lease from N.W. Trading Inc. In the Assignment document Gurvender and Sony Investment Ltd. and Mr. Singh are collectively referred to as the "Assignee".

However, the Assignment was signed by Mr. Singh on behalf of “Gurvender and Sony Investment Ltd by its authorized signatory”. There is no signature by Mr.

Singh in his personal capacity. Further there is no description in the Assignment of Lease of Mr. Singh being a covenantor or having the obligations of the personal covenantor M.G. PERSONAL LIABILITY OF MR. SINGH [ 14 ] Vali Enterprises submits that the Assignment documents show it was the intention of the parties that Mr. Singh would be personally responsible for payment of the rent by his company. [ 15 ] Firstly, Valley Enterprises refers to the wording of the Assignments of Lease for both 151 and 153 East 3 rd Street which define the obligations of the Assignee.

Paragraph 4 states : "...... the Assignee hereby covenants and agrees with the landlord.......to pay the rent and additional rent and to observe and perform all of the covenants, agreements and conditions of the Tenant preserved and contained in the Lease in the same manner as if the Assignee was that Tenant named in the Lease;.........” [ 16 ] Vali Enterprises submits the descriptor of Mr. Singh in the heading of the Assignments as " Assignee" jointly with his company confirms his obligations under paragraph 4. If the parties did not intend to make Mr.

Singh personally responsible for payment of the rent, then he would not have been named as an "Assignee"; only his company would have been named. [ 17 ] Secondly, Vali Enterprises refers to the wording of the Agreement to extend the lease of 151 East 3 rd Street signed by the parties on September 20, 2007. In the extension Agreement, Mr. Singh and Gurvender and Sony Investment Ltd. are collectively referred to as "Lessees". Mr. Singh signed the Extension twice; once in his personal capacity and once on behalf of Gurvender and Sony Investment Ltd. Vali Enterprises submits the signature of Mr.

Singh in his personal capacity shows his intention to be a “Lessee” personally responsible for payment of the rent at 151 East 3 rd Street and confirms the wording of the Assignment. [ 18 ] Mr. Singh testified it was never his intention to be personally liable for the rent. He always signed on behalf of his company and never in his personal capacity.

However, he could not explain why his signature appeared twice on the Agreement for Extension of Lease dated September 20, 2007 with respect to 151 East 3 rd Street wherein he is described as “Lessee”. [ 19 ] The burden of proof is upon Vali Enterprises to prove on a balance of probabilities that Mr. Singh was personally liable for payment of rent on the two premises. With respect to the lease of 153 East 3 rd Street, I find that Vali Enterprises has failed to prove that Mr. Singh agreed to be personally liable for payment of the rent. The omission of Mr.

Singh’s signature in his personal capacity is fatal to the position of Valley Enterprises. I also take into account that Mr. Singh was not described as a Covenantor similar to M.G. Accordingly, I dismiss that portion of the claim of Vali Enterprises against Mr. Singh as it pertains to the lease of 153 East 3 rd Street. [ 20 ] With respect to the lease of 151 East 3 rd Street, I find Vali Enterprises has proven that Mr. Singh intended to be personally liable for the rent due under in the Lease. The extension of Lease dated September 20, 2007 describes Mr.

Singh as Lessee and his signature in his personal capacity appears on the bottom of the document. This document together with the wording of the Assignment is sufficient evidence of Mr. Singh's intention to be personally liable for the payment of the rent. [ 21 ] The amount of rent due under the lease for the premises at 151 East 3 rd Street from the start of the lease until January 2010 when the Distress Warrant was executed is ($1,698 x 13 months) $22,074. However, rent was paid on both 151 and 153 East 3 rd Street in the amount of $25,000 by Gurvender and Sony Investment.

Neither Vali Enterprises nor Gurvender and Sony Investment apportioned the rent payments between the two properties. I will allocate one half of the total rent paid towards the rent due on 151 East 3 rd Street in the amount of ( $25,000 X ½) $12,500. Accordingly, I find that the amount of unpaid rent due on the property at 151 East 3 rd Street is ( $22,074 - $12,500) $9574. Vali Enterprises will have judgment against Mr. Singh in his personal capacity in the amount of $9574 together with interest calculated pursuant to the Court Order Interest Act from September 28, 2010.

DUTY TO GIVE NOTICE OF DISTRESS [ 22 ] In the spring of 2009, Mr. Singh met with Mr. Vali, the principal of Vali Enterprises, to discuss the unpaid rent which had accrued at the two premises. Mr. Vali agreed that Mr. Singh could pay $2,500 per month and when the business was sold any unpaid rent which had accrued under the terms of the lease would be paid from the sale proceeds. However, in November of 2009, Gurvender and Sony Investment Ltd. stopped paying any rent and by January 1, 2010, the total amount of unpaid rent for the two premises was $22,303.37.

On January 19, 2010, Vali Enterprises retained Absolute Bailiffs to execute a Distress Warrant at 151 and 153 East 3 rd Street. [ 23 ] Gurvender and Sony Investment Ltd., and Mr. Shakur submit that Vali Enterprises should have given notice of its intention to execute a Distress Warrant. There is no legal support for this submission. Firstly, the terms of the leases are clear; the landlord can take possession of the premises if rent is not paid. Secondly, there is no common law or statutory requirement that a landlord must give such notice to the tenant.

I find that it was lawful for Vali Enterprises to take possession of the premises pursuant to the Distress Warrant and I dismiss the portions of the claims of Gurvender and Sony Investment Ltd., and Mr. Shakur which alleged that Vali Enterprises and Absolute Bailiffs had unlawfully taken possession of the premises. MR. SHAKUR’S OWNERSHIP OF ITEMS IN THE PREMISES [ 24 ] Sheldon Stibbs is employed by Absolute Bailiffs and attended at the premises to execute the Distress Warrant and found Mr.

Shakur operating a butcher shop. Mr. Shakur said he was the manager and the operator of the business. Mr. Stibbs testified that Mr. Shakur said the assets in the store did not belong to him. Mr. Stibbs allowed Mr. Shakur to take some personal knives and other items from the business. Mr. Stibbs told Mr. Shakur if any of the goods in the business belonged to him, then he should sign a statutory declaration and deliver it to Absolute Bailiffs. When Mr. Stibbs attended at the business a few days later, Mr. Shakur claimed that some of the meat in the store belonged to him. Mr. Stibbs again told Mr.

Shakur that he had to complete a statutory declaration and provide some proof of ownership for any items which he claimed to own. [ 25 ] Mr. Shakur testified that many of the items in the store belonged to him. Mr. Shakur had provided a statutory declaration concerning these items on March 4, 2010, to Absolute Bailiffs. His testimony at trial conformed to his statutory declaration. However, Mr. Shakur was not able to provide any written proof that he had purchased the items he claimed to own. He was unable to provide any evidence as to the value of the items at the time of the seizure. Mr.

Singh also testified that his company owned some of the items in the store and this testimony somewhat conflicted with the testimony of Mr. Shakur. Mr. Singh, like Mr. Shakur, was unable to provide any written proof concerning the ownership of the items or the value of these items. [ 26 ] I find that Mr. Shakur has failed to prove on the balance of probabilities that he owned any of the items seized and then sold by Absolute Bailiffs. I dismiss his claim against both Vali Investments and Absolute Bailiffs.

SALE AT FAIR MARKET VALUE [ 27 ] I turn now to consider the allegation of Gurvender and Sony Investment Ltd., and Mr. Singh that Absolute Bailiffs sold the assets found in the store for less than fair market value. Upon entering the premises, Absolute Bailiffs commenced to take an inventory of the items in the business. Two appraisers were requested to provide estimates as to the value of the items in the store if they were to be sold at auction. The first appraisal was prepared by Don Ozmak who valued the items in the store at $3,700. A second appraisal was carried out by J.

Schwartz who valued the goods at $4,725. After receiving these two estimates, Absolute Bailiffs sold the items in the store to Direct Liquidation for the sum of $4,200. [ 28 ] Mr. Swartz was called as a witness by Absolute Bailiffs. He has been an appraiser for more than 20 years and has conducted over 4000 appraisals. During the cross examination by Mr. Shakur, Mr. Swartz demonstrated his knowledge of the appraisal business and the items which were found in the store. I accept the evidence of Mr.

Swartz concerning the fair market value of the items which were found in the store. [ 29 ] I find Absolute Bailiffs took all necessary steps to determine the value of the inventory and find that the inventory was sold at fair market value. In coming to this conclusion, I also take into consideration that the proceeds of the sale of the inventory were not sufficient to pay in full the account rendered by Absolute Bailiffs to Vali Enterprises.

It was necessary for Absolute Bailiffs to reduce the account rendered to Vali Enterprises; clearly it was in the best interests of Absolute Bailiffs to maximize the sale proceeds from the inventory at the store. [ 30 ] Accordingly, I dismiss the portions of the claims of Gurvender and Sony Investment Ltd., and Mr. Singh against Vali Enterprises and Absolute Bailiffs which allege those two defendants disposed of the items found in the store at less than fair market value.

DECISION [ 31 ] In file number 10-21885, the claims of Ameer Shakur and Gurvender and Sony Investment against Vali Enterprises, Vali Ranjbar and Absolute Bailiffs are dismissed. [ 32 ] I award Costs in the amount of $500.00 against Gurvender and Sony Investment payable to each of Vali Enterprises, Vali Ranjbar and Absolute Bailiffs. In the circumstances, there is no award of Costs against Mr.

Shakur. [ 33 ] In file number 10-21931, Vali Enterprises is awarded Judgment against Gurvender and Sony Investment in the amount of $22,307 together with interest from September 28, 2010 pursuant to the Court Order Interest Act plus Costs in the amount of $500.00. [ 34 ] Vali Enterprises is awarded judgement against Gurdev Singh in his personal capacity in the amount of $9,574.00 together with interest from September 28, 2010 pursuant to the Court Order Interest Act plus Costs in the amount of $500.00. ________________________________ The Honourable Judge W. J. Rodgers Provincial Court of British Columbia