AMPRO LTD v MAURITIUS EAGLE INSURANCE CO. LTD.

2017 SCJ 389

Record No. 94046

THE SUPREME COURT OF MAURITIUS

In the matter of:

Ampro Ltd

Plaintiff

v.

Mauritian Eagle Insurance Co. Ltd.

Defendant

------

INTERLOCUTORY JUDGMENT

The defendant has raised a plea in limine consisting of 3 limbs. The plaintiff which is
a construction company, entered into a sub-contract with M Seven Services Ltd (“MSSL”)
under which the latter provided a performance bond for the benefit of the plaintiff. The
defendant acted as surety under the performance bond for MSSL for the sum of
Rs 2,086,423. This was later increased to Rs 2,586.423.

The plaintiff is claiming the above amount in its first prayer. The second prayer,
which is relevant for the 3rd limb of the plea in limine, is a claim for the “interest of the
prevailing commercial bank rate or alternatively at the legal rate to be capitalized on a yearly
basis as from the date of the mise en demeure dated 11 June 2006”. Finally, the plaintiff is
also claiming 10% attorney’s recovery commission.

The plea in limine raised are:

1. Defendant avers that the present action quoad it is not sustainable in

as much as it has obtained judgment in case bearing Record Number
 2

SCR 100028 – 1/718/07 against M Seven Services Ltd in which the

latter is ordered to take up the defence of Defendant in the present
matter.

2. In the alternative, Defendant moves that the present matter be set

aside, with costs, in as much as an interested party, namely M Seven
Services Ltd, has not been put into cause.

3. The plaintiff is debarred from proceeding with the present claim in as

much as the plaint as styled infringes the principle of “non-cumul”.

The first two limbs of the plea in limine are linked as they both relate to the implication
of MSSL in the present matter. When the present claim was brought against it, the
defendant chose the route of entering a separate claim against MSSL. The defendant in fact
obtained a judgment ordering MSSL “to indemnify the plaintiff in guarantee (the defendant)
against all sums which it may be called upon to pay to the plaintiff in the main case”. The 1st
limb of the plea in limine is therefore incorrect, this was conceded by learned counsel for the
defendant, when it states that MSSL was “ordered to take up the defence of the defendant in
the present matter”. This would have entailed a different procedure. The present plaint with
summons cannot be impeded because of the judgment obtained by the defendant. This
leads therefore to the consideration of the 2nd limb of the plea in limine.

The defendant did not adopt the third party procedure under Rule 38 of the Supreme
Court Rules of 2000 and it cannot now tax the plaintiff for failing to put MSSL into cause,
especially as it has already obtained a judgment against MSSL. If there was such a failure, it
would not necessarily be fatal to the present plaint with summons. However, there is no need
for me consider whether MSSL should be joined in the light of the conclusions under the 3rd
limb.

Arguments were offered by both Counsel on the 3rd limb of the plea in limine that the
principle of “non-cumul” has been infringed. Learned Counsel for both parties had offered
submissions without the benefit of the recent judgment of the Judicial Committee of the Privy
Council – Mediterranean Shipping Co v Sotramon Ltd [2017 UKPC 23]. This judgment
has confirmed the principle that where damages are alleged to result from a breach of
contract, the action should be based on the contract and not in tort. The following extract
states the principle of “non-cumul”:
 3

19. It has been recognised that to describe the principle as “non-cumul” is

potentially misleading, but most legal writers appear to agree about its effect,
although there are exceptions. Prof Legier, the editor of Encyclopédie Dalloz,
Vo Responsabilité Contractuelle (1989), p 2, para 5, described it in this way:

“Principe dit du non-cumul - Ce principe, dont la dénomination

n’est pas suffisamment claire, interdit à la victime, non
seulement de cumuler ou de combiner les deux régimes de
responsabilité, mais encore de choisir l’un ou l’autre. Si les
conditions de mise en jeu de la responsabilité contractuelle
sont réunies, ses règles doivent s’appliquer, sinon il convient
de se référer à celles de la responsabilité délictuelle.”

20. Similarly, Dalloz, Droit Civil: Les Obligations, 11th ed (2013), (edited by
Prof Terré, Prof Simler and Prof Lequette) contains the following passage,
which appeared also in earlier editions (p 884, para 876):

“Jurisprudence. La jurisprudence, après avoir hésité, s’est

prononcée, en principe, contre le ‘cumul’ des responsabilités.
Elle a décidé que les dispositions des articles 1382 et suivants
sont sans application lorsqu’il s’agit d’une faute commise dans
l’exécution d’une obligation résultant d’un contrat.”

Now the present claim clearly arises out of a contract as averred in paragraphs 11
and 13 of the plaint with summons:

11. The sub contract and the Performance Bond shall expressly
provide that the amount of Rs 2,586,423 shall become payable and demandable
in the event of default by M Seven Services Ltd in respect of its obligations
towards the plaintiff under the sub contract.

13. The defendant was asked and requested to fulfil its payment
obligation for the sum of Rs 2,586,423 arising under the Performance Bond.

The plaintiff claim is however relying on “faute” as can be seen from paragraph 17:
 4

“The plaintiff avers that the defendant’s failure to pay to it the said sum
of Rs 2,586,423 amount to a “faute” which has caused prejudice giving rise to
special damages inasmuch as the plaintiff has had to pay interest at the
commercial bank rate on the said sum of Rs 2,586,423.”

(The emphasis is mine).

The plaintiff cannot claim damages in tort from the defendant when there is a claim
based on contract. I find that third limb is therefore well taken and that the plaintiff cannot
proceed in tort. Given the circumstances of this case, I non-suit the plaintiff and make no
order as to costs.

R. Teelock
Judge

13 October 2017

For Plaintiff: Mrs A. Ghose, Attorney at Law

Mr J. Beeharry, of Counsel together with
Mr K. Auchaybar, of Counsel

For Defendant: Mr A. Robert, Attorney at Law

Mr G. Glover SC