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WHITHAM v. PITCHA MUTTU.
D. C., Kandy, 13,172.
Action on promissory note—Counter claim for unliquidated damages—CivilProcedure Code, chapter L1IIss. 704, 706.
Under chapter LIII. of the Civil Procedure Code a claim forunliquidated damages is a defence to an action on a promissory note.
Mokamadu v. Lewis (5 8. C. C. 148) considered and held inapplicableto existing procedure.
CTION on a promissory note under Chapter LIII. of the Civil
The defendant applied for leave to appear and defend theaction. He did not offer to pay into Court the-sum mentioned inthe summons, but in his affidavit, tendered in support of hisprayer for leave to appear and defend the action, he showed thathe had a counter claim, which when deducted from the amountsued for would leave a large balance in his favour. He averred,“ I am advised that, instead of bringing a separate suit for the“ recovery of these sums of money, my proper course is to claim“ them in this case.”
■June 27 and . .July 4.
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The substance of the affidavit was as follows:—that he madethe note; that at the time of making it he was employed as headkankani of Kadawela estate, and had under him a gang of 148coolies and 13 sub-kankanis; that in October, 1897, his sub-kan-kanis were indebted to the estate on account of advances in thesum of Bs. 4,641; that he made the note sued upon for thatamount by way of security for their debt in favour of the plaintiff,who was the superintendent of Kadawela estate; that the superin-tendent withdrew from the deponent’s command 8 sub-kankanisand 123 coolies and placed them under Murugen, head kankani,though the debt of such coolies and sub-kankanis due to thedeponent amounted to Bs. 7,103, which from plaintiff’s wrongfulconduct were now lost to him; that in addition to the specificdebts thus lost, other damages amounting to Bs. 2,500 had accruedto the defendants; and that such being the nature of the trans-actions between the plaintiff and the deponent in respect of thepromissory note sued upon he was advised that his proper coursewas to claim the aggregate sum of Bs. 9,603 in reconvention in thepresent case.
The District Judge refused the application for leave to appearand defend the action in these terms:—
" Assume to be true all that defendant says in his affidavit, I do“ not think he has any defence to the claim on the promissory note.” He has his remedy against the sub-kankanis on the promissory“ notes he holds from them. If the defendant applying for leave“ to appear and defend pays into Court the sum mentioned in the“ summons, he is of right entitled under section 706 to the relief“ he asks for. A bare claim in reconvention may sometimes afford“ a satisfactory defence within the meaning of chapter LIII., as, for“ instance, a liquid claim due to the defendant by plaintiff upon a“ promissory note, cheque, or guarantee. Such a claim being of a“ liquid and definite character falls within the purview and“ meaning of the term ‘ defence ’ as used in chapter LIII. It was“ held by the Supreme Court in D. C., Kandy, 97,222 (8 S. C. C. 148)“ that, in an action of regular procedure, a partial failure of con-“ sideration does not constitute a defence to a claim on a promis-“ sory note, if the quantum to be deducted on that account is matter“ not of definite computation, but of unliquidated damages. Biles“ says, at page 150 (15th edition): ‘Formerly the money as-to“ ‘ which the consideration fails must have been a specific ascer-“ ‘ tained amount, for the jury could not in an action on a bill or‘ ‘ ‘ note assess by way of set-oS the damages arising’ from a breach“ ‘ of contract, and the defendant was left to his cross action; but“ ‘ now unliquidated damages may be set up in a counter claim:
June S7 andJuly 4.
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June St andJuly 4.
“ ’ as such a claim can be made, is a defendant entitled to make it' ‘ ' under chapter LIII. ’ ? It seems to me that he is, under section" 706. Are then the facts sufficient to support the application?“ I must confess I fail to see in the affidavit any facts entitling“ defendant to damages. The claim is not even a plausible one.“ Let a decree be entered in favour of plaintiff.”
The Defendant appealed.
Browne, for appellant.
Morgan, for respondent.
In my opinion the District Judge was quite right in holding theclaim for unliquidated damages was a defence to an action underchapter LIII. of the Code. The case in 8 S. C. C. 148 was decidedbefore the new Code came into operation, and is therefore noauthority as to the present procedure. At the same time I thinkthat the judge ought to have allowed the defendant to defend theaction. The affidavit discloses facts which render it reasonablethat the defendant should be allowed to come in and defend.
Moncreiff, J.—I agree.
WHITHAM v. PITCHA MUTTU