Shivji v. Mohamed Dewshi and Sons Ltd. Civ. App. 4-D-71; Patel Ag. J.

Shivji v. Mohamed Dewshi and Sons Ltd. Civ. App. 4-D-71; Patel Ag. J.

This is an appeal against the decision of a Resident Magistrate dismissing the appellant’s application for leave to defend and entering a summary judgment under O. 35 r. 2 of the Civil Procedure Code in favour of the respondent. The respondent had filed a suit on three promissory notes drawn by the appellant in favour of the respondent. In his affidavit before the trial court, the appellant stated that he executed three promissory notes which he gave to the respondent towards the purchase price of a flat which the respondent agreed to sell to the appellant or his nominee. He also stated that he respondent failed to sell and/or transfer the said flat and hence consideration or the promissory notes failed. The respondent in his counter affidavit stated that they agreed to sell a flat to Mrs. Shivji who paid Shs. 29, 240/- out of the price of Shs. 36,850/- and failed to pay the balance. As a result the informed her of their intention to rescind the agreement, whereupon the respondent requested them not to rescind, undertook to pay the balance, and in consideration of the respondent’s agreeing not to rescind, the appellant drew the promissory notes. It was argued that since according to the appellant, the consideration for the notes was the sale of the flat and according to the respondent it was the agreement not to rescind, the parties were talking about different consideration. There was therefore a triable issue and unconditional leave to defend should be granted.

Held: (1) “Now going through the affidavits of both the appellant and respondent it is quite clear that they think of different considerations all the time. And this was not considered by the learned resident magistrate at all. Going through his ruling it can be seen that just because the Appellant did not file a reply to the counter affidavit of the respondent he concluded there was consideration. Failure of the appellant to file a reply to the respondent’s counter- affidavit unduly influenced him. His duty was to see if friable issue is raised or not by the affidavits.” (2) “With due respect to him I find triable issues have been raised. It is not a question at that stage whether the statement of the applicant/appellant is true or false. The truth or falsity is a matter for trial ……..this is so clearly stated in Kara Georgiadis v. Mavroudis as per Sir Joseph Sheridan as reported in (1952) E. A. C. A. 479. The fundamental principle of justice is that a defendant who has a state able and arguable defence must be given an opportunity to state it and argue it before the court.” (3) Unconditional leave to defend granted; Appeal allowed.