063-NLR-NLR-V-10-SUPRAMANIAN-CHETTY-v.-KRISTNASAMY-CHETTY.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, and
Mr. Justice Middleton.
SUPRAMANIAN CHETTY u. KRISTNASAMY CHETTY.
D. G.% Jaffna, 5,236
Civil Procedure Codet eh. LIII.—Summary procedure on liquid claim—Promissorynote—Defence of partial failure of consideration and payment—Failureto give particulars—Reasonable doubt as to the good faith of defence.
Where in an action on a promissory note for Bs. 2,000 undersummary procedure, the defendant applied for leave to defendupon an affidavit admitting the making of the note, but allegingthat the plaintiff paidhimonlyBs.1,600, out of which sum he had
paid Bs. 1,800, leaving only a balance stun of Bs. 200 due, andwhere the defendant filed no particulars with his affidavit in supportof his defence,—
Held (affirming theorder oftheDistrictJudge), that there were
reasonable grounds for doubting the good faith of the defence, andthat the defendant shouldonlybeallowedto defend the action, if
be deposits in Courttheamountof theclaim or gives security
for it.
T
HE plaintiff sued the defendant on a promissory note datedSeptember 26* 190i, for Rs. 2,000 under chapter LULL of the
Civil Procedure Code. The defendant moved for leave to defendthe action, ^and in support of his motion filed the followingaffidavit: —
'■ 1. I am the defendant in this case.
** 2. I admit that I and my brother K. K. Thuraiappa grantedthe promissory note sued upon in this case for Rs. 2,000, but denythat we received the full amount mentioned in the said promissorynote.
“ 3. The plaintiff paid only Rs. 1,500, out of which sum I havepaid to the plaintiff the sum of Rs. 1,300, as will appear more fullyon reference to the account of dealings had between me and theplaintiff, which account ought to be produced and filed in Court bythe plaintiff. I undertake to. file my account with my answer. ,
'* 4. They© is now due and owing to the plaintiff upon the saiefnote * the sum of Rs. 200 and some interest, which pmount I amready and willing to pay.
“5. I further affirm and declare that the above are the true fagtsof the case. ”
1007.October 2.
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1907. The District Judge (W. B. B. Sanders, Esq.-) gave him leave toOctober 2. defend the action only on condition that he deposited the amountof the claim or gave security for it.
The defendant appealed.
H. A, Jayewardene, for the defendant, appellant.
Van Langenberg, for the plaintiff, respondent.
Gur. adv. milt.
October 2, 1907. Hutchinson C.J.—
This action was commenced on April 19, 1907, the claim beingfor Hs. 1,812 due on a promissory note dated September 26, 1904,for Rs. 2,000 and interest. The plaintiff proceeded under chapterLHL. of the Civil procedure Code with summons and affidavit as.required by section 705. The defendant applied for leave to defendupon an affidavit admitting the granting of the note, but allegingthat " the plaintiff paid only Rs. 1,500, out of which sum I havepaid Rs. 1,300, as will appear more fully on reference to the accountof dealings h’ad between me and the plaintiff, which account ought tobe produced and filed in Court by the plaintiff. 1 undertake to filemy account with my answer/1 On these materials the District Judgesaid: "I have reasonable doubts as to the bona fides of the defence.He signs a promissory note for Rs. 2,000. He states in hi*affidavit that he received only Rs. 1,500. He states in his affidavitthat he has paid only Rs. 1,300, and that only a balance of Rs. 200is due by him. Before I allow him to answer he must either depositthe sum for which he is sued, or give security therefor. ” Thedefendant appeals against that order, and claims that he is entitledto unconditional leave to defend.
There are several reported decisions on cases more or less similarunder sections 704 and 706. But the law is quite clear; the questionin each case is whether, in the words of section 704, there is anyreasonable doubt as to the good faith of the defence,” or, as it isexpressed in section 706, whether the defendant’s affidavit "issatisfactory to the Court.” The defendant gives a formal acknow-ledgment in September, 1904, that he owes Rs. 2,000; when he issued on that in April, 1907, he swears that the acknowledgment isnot true, and that be only owed'Rs. .1,500; and he also swears thathe has paid Rs. 1,300. He produces no receipts and no accounts.In the case of Wallingford v. The Mutual Society1 under order 14of $he English rules—similar to but not identical with chapter LID.6f our Code—Lord Blackburn said that a defendant %ho sets upsuch a defehce must give particulars: that it is not enough to say"I owe nothing;” be must satisfy the Judge that there is reason-able ground for saying so. In this , case I think there were reasonablegrounds for the Judge doubting the good faith of the defence.
1 (1880) 5 App. Cnx. 704.
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I think, therefore, that the appeal should be dismissed with costs,and that defendant should only be allowed to answer if he deposits,in Court the sum for which he is sued, or givers security for it withina fortnight from this date.'
. Middleton J.—
In this case it was objected that upon the face of the affidavitfurnished by the defendant .the District Judge ought to have allowedunconditional leave.to defend the action, which was on summaryprocedure on a promissory note.
The cases reported in 2* Browne 267 and 395 were relied on, and itwas argued (1) that there were no reasonable grounds for the doubtexpressed by the Judge; and (2) that if the Judge felt reasonabledoubt as to the good faith of the defence under section 704 of theCivil Procedure Code, he should have expressed his reasons on therecord. This he is not specifically ordered to do in section 704, butunder section 187 a judgment must contain the reasons for a Judge’sdecision. Under the interpretation clause of the Code (section 5)a judgment means the statement given by the Judge of the groundsof a decree or order. In the present case the appeal is from aninterlocutory order of the Court, which is admittedly appealable.Here no formal order was drawn up, but a short note made by theJudge, which in effect is a judgment, and which therefore shouldcontain the reasons for the Judge’s decision.1 In most instancesthe reason in cases of thitf kind can be ascertained by any one whoreads the plaint and the plaintiff's and defendant’s affidavits.
In my opipion, therefore, the -Judge should state the grounds forthe reasonable doubt he feels, in order that the Supreme Court maybe in a position to judge of their adequacy at once. If he does notdo so, unless they are apparent to the Appeal Court, his order willhave to be reversed.
On the other ppints I entirely subscribe to the ruling of BonserC.J. in Annamalay v. AUicn1 and Meyappa Ghetty v. Ghiitambalam2that there are only two cases in which the Court can order thedefendant as a condition of being allowed to defend to bring themoney into Court: (1) when the defence set up is bad in law, (2)> when the defence set up is good in law, but the Court has reasonabledoubt, i.e.t doubt for which reasons can be given, as to the bonafides of the defence. In Meyappa Ghetty v. Ghittambalam2 BonserC.J- laid»it down “ that the rule would appear to be that when,thedefendant does swear to facts which, if true, constitute a godttdefence, he should be allowed to defend unconditionally, unless. there is something on the face of the proceedings which leads theCourt to doubt the bona fides of the defence/’
1 UfiOS) 2 iV. L. R. 251.* (1902) 2 Browne 3%.
1907.
October 2.
Hutchinson
C.J.
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1907
October 2.MlDDJiBTON
J.
The Judge has not given his reasons here, but I think on the faceof the affidavit of the defendant there is reason to doubt its bonafidest (1) because the defendant therein admits his acquiescence in amistaken claim under a promissory note for some three years; (2)there is no allusion to receipts for the alleged payments on account;(3) the offer to hie an account with the answer, which it is suggestedis only obligatory on the plaintiff doing the same thing, does notbear the impress of good faith.
I would therefore dismiss this appeal with costs.
Appeal dismissed.