064-NLR-NLR-V-10-KUMARAPPA-CHETTY-v.-KRISTNASAMY-CHETTY.pdf
( 330 1
1907.October 2.
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice, andMr. Justice Middleton.
KUMARAPPA CHETTY v. KRISTNASAMY CHETTY.
D. C.} Jaffna, 5,226.
Civil Procedure Code, ch. LIII.—Action on promissory note—Bona ftdesof defence—Materialsinsupport• of defence—“ Reasonable doubtos
to good frith."
Where inanaction ona promissorynote undersummarypro-
cedure the defendant applied for leave . to defend the action, filingan affidavitinwhich headmitted themaking ofthenote,but
denied thatthere wasanyconsideration, <alleging thatthenotewas
given a$ security foranybalance thab mightbe found due tothe
plaintiff upon an account which the plaintiff agreed to open in theplaintiff's name, and thabafter the making ofthe nott the plaintiff
went awaytoIndiawithout opening such account,sothatthere
was no money due on the note,—
Held, that the circumstances were such as to create reasonabledoubt as to the good faith of the defence, and that the defendantwas not entitled to leave' to defend the action unconditionally.
A Judge should give reasons for his decisions.
T
HE plaintiff suedthedefendant on apromissory notefor
Rs. 1,100 dated March 25,1906. The defendant moved for
leave to* defend the action, filing the following affidavit: —
"1. That I am the defendant in this case.
“2. That I admit having granted the promissory note in question,but deny that any consideration passed at the time of imp makingtj>e*said note.
••
" 3. That I further affirm and declare that, as usual and custom-ary with the *Natukottai Chetties. in Jaffna, the note in questionwas granted by me and accepted by the plaintiff only as a meresecurity for any balance that may ultimately be found due and
( 881 )
owing to the plaintiff from me upon an account which the plaintiffagreed and undertook to open in my name.
“ 4. That subsequent to the granting of the said note the plaintiffwent away to India without opening the said account, and so thereis no money due from me to the plaintiff upon the said note.
" 5. That I further affirm and declare that the above are truefacts of the case, and I did not borrow or receive any money upon thepromissory note in question, azid I owe plaintiff no money on it.*'
The District Judge (W. R. B. Sanders, Esq.) gave the defendantleave to defend only on his paying into Court the amount of theolaim, or giving security therefor.
The defendant appealed.
H. A. Jayewardene, for the defendant, appellant.
Van Langenberg, for the plaintiff, respondent.
1907.
October 2.
Cur. adv. vult-
October 2, 1907. Hutchinson C.J.—
The plaintiff sues on a promissory note given by the defendantdated March 25, 1906, for Rs. 1,100 and interest. The plaint wasfiled on April 16, 1907, and the plaintiff proceeded under chapterLEU. of the Civil Procedure Code. On May 28 the defendant appliedfor leave to defend, filing an affidavit in which he admitted having"given the note, but denied that there was any consideration, andsaid that the note was given as security for any balance that mightbe found due from him upon an account which the plaintiff agreed toopen in the plaintiff's name, and that after the granting of the notethe plaintiff went tb India without opening the account, and sothere was no money due on the note.
On this the Judge, without giving any reasons, allowed the-defendant to defend on giving security for the amount claimed.The defendant appeals against that order, and says that on hisaffidavit he is entitled to unconditional leave to defend.
We have just given judgment in a similar c$se in which the samedefendant was sued in the same Court by another plaintiff on a.promissory note, and, as I said in that case, the sole question is-whether the defendant's affidavit is “ satisfactory to the Court ”(section 706), or, as it is put in section 704, whether there is any“ reasonable doubt as to the good faith of the defence.”
In my opinion, when the defendant has given a formal acknow-ledgment in a promissory note that he owes a certain sum, it is notenough for him to say he did not owe anything. He must satisfythe’Judge that he has reasonable ground for saying so.. The Judgeought to have given his reasons for the decision, bat, though hisomission to do so is an irregularity, it does not invalidate his decision.In a case where we thought. it necessary we might call upon theJudge to give his reasoil, but I do not think it is necessary here. I think
{ 332 )
1£07
October'2,
Hutchinson
C.J.
that the affidavit is not satisfactory, and I would dismiss the appealwith costs, giving the defendant a fortnight from to-day to pay intoCourt or give security.
Middleton J.—
The appeal in this case is the same as in 68, D. C. (Interlocutory),Jaffna, 5,236,. and the. points raised are the same.
I have already expressed my opinion in that case on questionssubmitted to us, and I do not propose to repeat them. I wouldonly say here that I think, although the Judge’s reasons are notexpressed as they ought to have been, that the defendant's affidaviton the face of it, (1) from the fact that he has got no goods onaccount; (2) that the plaintiff went to India without protestfrom the defendant; (3) his delay in getting back the note, showthat there are reasons patent to this Court for the Judge's refusalto give unconditional leave to defend.
1 would dismiss this appeal with costs.
Appeal dismissed.