027-NLR-NLR-V-02-LETCHIMEN-v.-THERAWAPPA.pdf
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LETCHEMEN ®. THERAWAPPA.
D. C., Kandy, 9,331.
Action by summary procedure on promissory note—Leave to defend—Defence without security or payment of claim into Court—CivilProcedure Code, chapter LUL, and 88. 704 and 706.
Where in an action by summary procedure on a promissory noteunder ohapter LIU. of the Civil Procedure Code the defendantpleaded payment partly in cash and partly in notes since retired—Held, that the defence in itself could not be regarded as onemarked by bad faith or not primA facie sustainable, and the case was• not, therefore, one in which the defendant should under section 704be required, as a condition of his being allowed to appear and defendto pay into Court the sum . mentioned in the summons or to givesecurity therefor'.
r I 1HE facts of the case sufficiently appear in the judgment.
Dornhorst, for appellant.
Cur. adv. wit.
26th August, 1895. Withebs, J.—
This is an action by an indorsee of a promissory note overdueto recover from the makers a sum of Rs. 2,518* 18, and it is broughtunder chapter LIII. of the Civil-Prbcedure Code.
The defendants applied on affidavits for leave to defend, and thet)istrict Judge has given them leave so to do on paying into Court .the said sum of Rs. 2,518* 18. He required this condition becausehe says he felt reasonable doubt as to the good faith of the defence,which, in short, is payment partly in cash and partly in notes sinceretired.
The question for us to decide is, whether the District Judge wasjustified in imposing this restriction. Unfortunately, the DistrictJudge has assigned no reason for his doubt as to the sincerity ofthe defence ; and hence I am much embarrassed in the considera-tion of the question. It seems to me that the defendants haveput forward a case which deserves inquiry, unless it is marked bybad faith. For my part, I cannot regard it in that light, and henceI aih unable to support the judgment appealed from. Nor can Isay that I think the defence not to be primd facie sustainable;and it is only on this or the other ground that a Court can requirepayment of the sum claimed as a condition of defence under chapter'LTJT. of the Code. See section 704 :—
“the defendant shall'not be required, as a condition
“ of his being allowed to appear and defend, to pay into Court the“sum mentioned in the summons or to give security therefor,
1895.
August 19■and 26.
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1895.
August 19and 26.
WiTHKBS, J.
“ unless the Court thinks his defence not to be prime, facie sustain-"able, or feels reasonable doubts as to its good faith.”
On affidavits disclosing a defence, a defendant is entitled tohave permission to defend, subject to certain terms (see section706).
This section is substantially taken from section 20 of the Statute18 and 19 Viet, clause 67, and Act passed to protect holders of bills -of exchange and promissory notes against frivolous and vexatiousdefences to actions on these instruments.
On the English Statute, Baron Bramwell pronounced as follows :—“The intention of the Bills of Exchange Act was that where“ there was no pretence for a defence the party sued should not“ be allowed to defend, and the holder should have judgment as of“ course ; but that if the defendant had a real—I do not say good—“ defence, he should have leave to appear and set it up. As cases,“ however, sometimes occur where- an apparently real defence is“ shown, but its sincerity is doubtful, there the defendant is let“ in to defend only on the terms of his bringing the money into“ Court. Now, I cannot say that there is here no pretence for a“ defence ; on the contrary, I think there is a good pretence. I do“ not say that the defence is well founded, but it raises a fair question“ between the parties.”
This was the case of Agra and Masterman’s Bank v. Leighton,reported in L. R. 2 Ex. p. 56.
On the whole, I come to the conclusion that the defendantsshould, be let in to defend on giving security for putting in theiranswer or answers on a day to be named by the District Judge,attending on that day, or any other day appointed by the Court forthe' fixing and recording of issues and for the trial thereof ; and infailure to comply with those terms they will be declared to be indefault of answering.
Browne, J.—I agree.
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