Mohamed Enterprises (T) Ltd v Biashara Consumer Services Ltd (Commercial Case No. 36 of 2000) [2000] TZHC 679 (8 September 2000)

MOHAMED ENTERPRISES (T)LTD v. BIASHARA CONSUMER SERVICES LTD Code , 1966 that this application meets the required test. Accordingly I grant the application with costs. I give the applicant 21 days effective from to-day ’ s date within which to file his Written Statement of Defence. I order accordingly. Application granted. MOHAMED ENTERPRISES (T) LTD v. BIASHARA CONSUMER SERVICES LTD HIGH COURT OF TANZANIA AT DARES SALAAM (Bwana, J.) COMMERCIAL CASE No. 36 OF 2000 Civil Practice and Procedure - Summary suit - Application for leave to appear and defend - Order XXXV, rule 3 of the Civil Procedure Code 1966. Civil Practice and Procedure - Summary suit - Leave to appear and defend in a summary suit - Circumstances under which leave to defend may be granted. The plaintiff sold 33,330 bags of rice at an agreed price of TZS. 100 000 000 on 3 March 1998 but the cheque issued in part payment was returned unpaid with the remark “ payment stopped by drawer. ” The plaintiff then filed a summary suit under Order XXXV of the Civil Procedure Code. The defendant filed an application for leave to appear and defend the suit, stating in the accompanying affidavit that the plaintiff lowered the price of the rice the plaintiff was selling elsewhere and thus making it impossible for the defendant to sell its rice, and further that the amount being claimed was different from what was really due. The defendant argued that there were triable issues which were: that the plaintiff deposited the dishonoured cheque contrary to an earlier agreement not to do so; that the amount outstanding was less than what was being claimed and the existence of a new agreement whereby the defendant was paying TZS. 2 000 000 every Saturday. The plaintiff, in a counter

160 TANZANIA LAW REPORTS [2002]T.L.R. A affidavit, denied lowering the price of the rice or being aware that the cheque was postdated and said that the issue came up in a subsequent conversation. The plaintiff stated that only interest on the principal sum had been paid and that the principal sum of TZS. 100 000 000 remained unpaid together with subsequent interest of TZS. 38 B 058 600. The plaintiff further denied that there was an agreement to pay TZS. 2 000 000 every Saturday. Held: (i) In deciding whether a defendant should be granted leave to appear and defend a summary suit the role of the court is limited to looking at the affidavits filed by the defendant in order to decide whether there is any triable issue fit to go to trial; (ii) The defendant has disclosed a state of affairs which leads to the inference that at the trial of the action a defence to the suit filed by the plaintiff may be established by the defendant. D Leave to defend granted Cases referred to: (I) David Sassoon and Coy. Ltd v. Navichandra Patel and others [1972] E HCD n. 148 (2) Stahlunion Export GMBH v. Kibo Wire Industries Ltd 1973 LRT n. 54 (3) M/s Mechales Engineers and Manufacturers v. M/s Basic Equipment F Corporation [1977] AIR 577 SC Statutory provisions referred to:

1. Civil Procedure Code 1966, Order XXXV, rule 3 and Order XXXV G Ms Sheikh, for the Plaintiff Mr Kilindu, for the Defendant RULING H (Date 8 September 2000) Bwana, J.: The plaintiff filed this suit pursuant to Order XXXV I Summary Procedure under the Civil Procedure Code, praying for judgment in the sum of TZS. 100 000 000. and interest thereon.

MOHAMED ENTERPRISES (T) LTD v. BIASHARA CONSUMER SERVICES LTD 161 On 3 March 1998, the plaintiff sold to the defendant 33,330 A bags of rice for an agreed price. In part payment thereof the defendant issued a cheque. The same was dishonoured with a remark thereon, “ payment stopped by the drawer ” . That was followed by some correspondence inter partes until, finally, this suit was filed under s Order XXXV. In other words, the respondent claims that the applicant received advance delivery of rice, however, failed to pay back as per agreement. In his application filed pursuant to rule 3 of Order XXXV, the c applicant prays for leave to appear and defend the suit filed against him. In his affidavit in support thereof, the defendant applicant raises the following reasons: o

1. Following the purchase of the said rice, the plaintiff lowered the price of the rice he was selling elsewhere thus making it impossible on the part of the applicant to selling this led to further correspondence inter partes.
2. The applicant has since continued paying the respondent as per a new agreement between the parties reached in May, 2000.
3. The amount claimed by the respondent is different from the real sum pending. f On the strength of the above reasons, fortified by a number of supporting documents, it is the applicant ’ s averment that there are triable issues, entitling him leave to defend this suit against him. Some of the triable issues mentioned include: G
4. The dishonoured cheque was presented by the respondent contrary to earlier agreement between them not to do so.
5. The debt pending is smaller than what is claimed by the respondent; H and
6. The existence of a new agreement inter partes whereby the applicant pays the respondent the sum of TZS. 2 million every Saturday.

162 TANZANIA LAW REPORTS [2002] TLR. A In his counter affidavit, the plaintiff respondent denies any lowering of the price of his rice. He also denies the version that the material cheque was post-dated and that he was made aware of the same. It is his averment that the issue of the post-dated cheque came up later B in a telephone conversation. The respondent states further that the applicant has only paid the interest on the principal amount owed to the plaintiff, that the principal sum of TZS. 100 000 000 and an interest of TZS. 38 058 600 still remains to be paid. The respondent c further denies the existence of an arrangement whereby the applicant is paying TZS. 2 000 000 each Saturday. Therefore, a substantial sum of money remains unpaid. In construing this chamber application at this stage of the proceedings, D like similar ones filed before this Court in the near past, the court has always followed the settled province of law namely that it has to determine whether there are triable issues or not. As Mwakasendo, J. (as he then was) stated in David Sassoon and Coy Ltd v. Navichandra E Patel and others (1). My role in these proceedings is fairly limited. It is simply to declare upon the affidavits filed by the applicant, whether there is disclosed any issue fit to go for trial. p Triable issues are to my considered view, those issues which are contested and therefore, in the interest of justice, ought to be canvassed further through evidence. The court avoids - as far as necessary - dealing with the issues that have far reaching effects to the main G case. The aim of proceedings under Order XXXV: Summary Procedure is - as stated in the Stahlunion Export GMBIIv. Kibo Wire Industries Ltd (2): to enable a plaintiff to obtain a quick and summary Judgment on a claim 11 for liquidated sum where on the face of it, the defendant has clearly no good defence, without being unnecessarily kept from what is due to him by the delaying tactics of the defendant. j It means, therefore, that where the court believes that, indeed, the defendant has some defence, then it is preferable that leave be granted

MOHAMED ENTERPRISES (T) LTD v. BIASHARA CONSUMER SERVICES LTD 163 for him to present the said defence. This principle was laid down in the famous Indian case of M/s Mechalee Engineers and Manufactures v. M/s Basic Equipment Corporation (3). The weight of that authority leads me to state that leave to defend should be granted if:

1. The defendant affidavit satisfies the court that there are merits and triable issues.
2. The defendant ’ s affidavit indicates that he has a fair or a bona fide or reasonable defence, although not a positively good one.
3. The defendant discloses such facts as may be deemed sufficient to entitle him to defend or that he shows such a state of affairs that lead to the inference that at a trial of the action, he may be able to establish a defence to the plaintiff ’ s claim. In the instant case, the applicant has raised a number of issues (supra) he considers to be triable, I have examined the respondent ’ s replies thereto as well. Although the latter ’ s intention in filing this suit pursuant to Order XXXV: Summary Procedure, was to obtain judgment expeditiously, I am, however, of the considered view that the “ audi alteram partem" rule has its proprio vigore here. The defendant/ applicant should therefore be given unconditional leave to defend. It is accordingly ordered.