133-NLR-NLR-V-74-T.-A.-J.-SENANAYAKE-Appellant-and-E.-N.-P.-SENANAYAKE-Respondent.pdf
564
ALLES, J.—Senanayake v. Senanayake
1971Present: AUes, J., and de Kretser, J.T. A. J. SENANAYAKE, Appellant, and E. N. P.SENANAYAKE, RespondentS. G. 477167 (.F)—D. O. Colombo, 2S12S/SInterrogatories—Action on cheque—Plea of no consideration—Right of defendant toadminister interrogatories asking -plaintiff what was the consideration—CivilProcedure Code, a. 93—Bills of Exchange Ordinance, s. 27—“ Valuableconsideration
WTiere, in an action on a chequo instituted by tho payee against the drawo*-by way of summary procoduro, the defendant has stated in his answer andaffidavit that thero was no consideration when he issued tho chequo, ho i3entitled to ascertain from the plaintiff by interrogatories what was thoconsideration for which tho chequo was issued, so os to enable him to preparefor tho case ho has to meet.
Appe AL from a judgment of the District Court, Colombo.J. IF. Subasinghe, for the plaintiff-appellant.
Bala Nadarajah, for the defendant-respondent.
Cur. adv. vull.
August 9, 1971. Alles, J.—
The plaintiff instituted this action by way of summary procedure forthe recovery of the sum of Rs. 7,000 on two cheques dated 1st July, 1965,and 31st July,^1965 (marked PI and P2), each for Rs. 3,500, deliveredto the plaintiff by the defendant and subsequently dishonoured by him.The plaintiff was the wife of the defendant and had sued the defendantfor divorce. According to the defendant these two cheques were issuedto the plaintiff, prior to the commencement of the trial, as his wifewanted some security for the payment of sums of money which wouldbe decreed against him for the payment of alimony and maintenance.The defendant admits that he signed the cheques and revalidated themsubsequently, but he stated in his answer, and his affidavit that thesecheques were issued for the purpose stated above, that there was noconsideration for the amounts stated therein and that the plaintiffwas not entitled to present the cheques for payment after they had beendishonoured in December, 1965. He further stated in his affidavit thathe had no notice of dishonour that the plaintiff has been paid all sumsdue on the decree in the divorce case; and that he has a good and validdefence to the plaintiff’s claim.
ALLES, J.—Senanayake v. Senanayake
505
On 13th June, 1967 the defendant filed a motion requesting that thefollowing interrogatories be answered by the plaintiff :•—
What was the valuable consideration on Cheque PI?
What was the valuable consideration on Cheque P 2 ?
Was Cheque P 1 dated 1st July delivered to the plaintiff on 1stJuly, 1965 ?
Was Cheque P 2 dated 31st July delivered to the plaintiff on31st July ?
6. Was Cheque P 1 delivered to the plaintiff in the precincts of theDistrict Court prior to the commencement of tho trial in DistrictCourt of Colombo case No. G5G5/D ?
6. Was Cheque P 2 delivered to the plaintiff in the precincts of theDistrict Court prior to the commencement of the trial in DistrictCourt of Colombo case No. C565/D ?
Mr. Subasinghe for the plaintiff-appellant does not dispute that liisclient was obliged to answer Interrogatories 3 to 6, since they relateto questions of fact, but he submits that he is entitled under Section98 of the Civil Procedure Code, to refuse to answer interrogatories.1 and 2 since they constitute questions of mixed law and fact. It washis further submission that the defendant should be aware why he issuedthese two cheques and suggests that this is an attempt to shift the burdenof proof to his client when the burden lay on the defendant. In supporthe relied on the decision of the Madras High Court in Mariappan v.Nalla Sevugan Servai1 where the Court held that, in a suit on apromissory note where the defendant pleaded want of consideration,the onus lay entirely on the defendant and he cannot, escape theonus by laying no evidentiary basis for his defence but by seekingto get an admission from the plaintiff by interrogatories. In thatcase it was held that the party on whom the onus of proof resteddid not attempt in the smallest possible degree to attempt to dischargethe onus. The Court therefore held that it was a subtle attempt to shiftthe onus of proof. In the present case the facts are different. Thedefendant has pleaded that there was no consideration for the cheques' and supported his plea with affidavit evidence as to the circumstances inwhich he delivered the cheques to his wife. In framing the interrogatoriesin tho form he did, he was not shifting the burden of proof, but onlyendeavouring to ascertain from the plaintiff what, in her submission,
' was the consideration for which the cheques were issued, so as to enablehim to prepare for the case he had to meet.—Vide Hailsham (SimondsEd.) Vol. 12 Para 87.
Although there is a presumption in respect of bills of exchange andcheques in-regard to valuable consideration, it is not conclusive proofbut only a rebuttable resumption. Therefore, when the drawer denies
1 (1033) A. I. n. Madras 293.
566
ALLES. J.—Senanayakc v. Scnanayake
that there waa any consideration, he can only rebut the presumptionif he knows what the other party alleges is the valuable consideration.The defendant in such a case can show that there was no considerationwhatsoever or explain the circumstances how the valuablo considerationcame to be constituted and may be entitled to take certain defencesunder the law. Merely making a bald statement that there was valuableconsideration is insufficient, as the defendant may be unable to meetthe allegation that has been made or to test whether the considerationalleged is valuable consideration recognised by law or to ascertainwhether it is sufficient consideration. Section 27 of the Bills of ExchangeOrdinance defines " valuable consideration ” as—
(а)any consideration which by the law of England is sufficient tosupport a simple contract;
(б)an antecedent debt or liability. Such a debt or liability is deemedto be valuable consideration whether the bill is payable on demandor at a future time.
The defendant is therefore entitled to know under which limb of theSection the plaintiff seeks to claim the payment as valuable considerationso that he may endeavour to disprove it. He can even maintain thatit was an illegal consideration in which case no burden shifts to him.In the present case the plaintiff was aware of the defendant’s positionas to why he dishonoured the cheques. If her'position was that therewas valuable consideration for the cheques there should be no difficultywhy she should not state what that consideration was.
Reference has been made in the course of the argument to the generalobservation of A. L, Smith, J. in the leading case of Kennedy v. Dodson1where the following observation appears :—
“ In ray opinion the legitimate use and the only legitimate use ofinterrogatories is to obtain from the party interrogated admissions offact which it is necessary for the party interrogating to prove in orderto establish his case.”
but as Nagalingam S. P. J. remarked in Ghatoor v. General AssuranceSociety Ltd?, the language used by Smith J. was not intended to havesuch a' general import and the learned Judge in that judgment hasreferred to several English cases which illustrate that a proper functionwhich interrogatories can and do perform is to enable the partyinterrogating to ascertain what the case he has to meet and whatreally are the matters at issue.
For the above reasons I hold that the defendant was entitled toadminister the Interrogatories 1 and 2 and I would dismiss this appealwith costs.
(1S95) J Ch. 334 at 341.
(1951) 56 N. L. It. 56S at 570.
DE KRETSER, J.—Scnonayake. v. Senanayake
507
DE KRETSER, J.—-
The facts are set out in the judgment of my brother Allcs, J. In myview once the defendant had set out in his affidavit filed for the purposeof obtaining leave to appear and defend the facts which lie relied onto show there was no consideration when he issued the cheques suedon he was entitled before the trial to ask the plaintiff “ Please tell mewhat you say is the good and valuable consideration for which yousay I issued the cheques
The answer to that query would enable him to get ready' to meetthat position and would prevent him from being taken by surprise andbeing prejudiced at the trial. That is one of the objects for which aninterrogatory can be legitimately issued—Vide the case of Chaloorv. General Assurance Society Lid.1
It appears to me that the learned District Judge was right in orderingplaintiff to answer the interrogatories 1 and 2 by which the defendantsought to ascertain what was the valuable consideration for which thecheques sued on were issued.
Counsel for the plaintiff did not at his appeal canvass the correctnessof the District Judge’s order in respect of interrogatories 3, 4, 5 and 6.
I agree with my' brother’s order that the appeal should be dismissedwith costs.
Appeal dismissed.