Mohammed Entr. (C) Ltd vs Biashara Consumer Services Ltd (Commercial Case No. 36/2000) [2000] TZHC 327 (8 September 2000)

0 IN fl'IE HGH COURT OF TANZANIA (COM1ERCIAL DIVISION) AU UAR ES SALAAM COMM LRCIAL CASE NO. 36/2000 MOHAMMED ENTR. ('I) LID . PLAINTIFF/RESPONDENT VERSUS BIASHARA CONSUMER SERVICES LTD ....... DEFENDANT/APPLICANT Counsel: IVIs. Sheikli .......... .or the Plaintiff Mr. Kilindu ......... .. or thc Defendant .R U L I N G BWANA, .1. The plaintiff filed this suit pursuant to Order XXXV Surnmaiy Procedure under the Civil Procedure Code, praying for judgement in the sum of Slis.100,000,000/= and interest thereon. On 3 March 1998, the plaintift sold to the de!èndant 33,330 bags of ric.e for an agreed price. In part payment thereof the defendant issued a cheque. The same was dishonourcd with a remark there on; paymcnt stopped by the drawer". That was followed by some correspondencO inter partes until, finally, this suit was filed under Order XXX. in other words, tlie respondent claims that the applicant received advance delivery of rice, however, failed, n morn, to pay back as per agreement. in his application filed pursuant to R. 3 of Order XXXV, the applicant prays for leave to appear and defend the SUil filed against him. In his affidavit in support thereof, the defendant/applicant raises the following reasons - Following the purchase of the said rice, the plaintiff lowered the price of the iice he was selling clsehe.re thus maLing it impossible on the part of the anplicant to sell hs. TiOsrj further correspondence inter partes. 4 All Co

2 I The applicant has since continued paying the respondent as per a new agreement between the parties reached in May, 2000. The amount claimed by the respondent is different from the real sum pending. 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 - The dishonoured cheque was presented by the respondent contrary to earlier agreement between them not to do so. The debt pending is smaller than what is claimed by the respondent; and I 3. The existence of a new agreement inter partes whereby the applicant paysthe respondent the sum of sh.2 million every Saturday. In his counter affidavit, the plaintif/rcspondent 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 olthe same. It is his averment that the issue of the post-dated cheque come up later 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 shs.100,000,000/= and an interest ofshs.38,058,600/= still remains to be paid. The respondent further denies the existnce of an arrangement whereby the applicant is paying shs.2,000,000/= each Saturday. Therefore, a substantial sum of money remains unpaid. In construing this chamber application at this stage of the proceedings, 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 vs Navichandra Patel & Others - 1972 1-lCD 148]: 11 my role in these proceedings is fairly liiniied. it is simply to dec/ne upon the ajjldavits \ .1 : /

3 flied by the applicant, whether there is disclosed any issue fit to go for trial... Triable issues are to my considered view, those issues which are contested and therefore, in the interest ofjustice, 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 case. The aim of proceedings under Order XXXV: Summary Procedure is - as stated in the Stahiunion Export GMBH vs Kibo Wire Industries Ltd, 1973 LRT, 54, - "to enable a plaint ff to obtain a quick and sumniaiy judge ment on a claim for liquidated sum where on the face of it, the defendant has clearly no good defence; wit/iout being unnecessarily kept from what is due to him by the delaying tactics oft/ic defendant...... It means, therefore, that where the Court believes that indeed the defendant has some defence, then it is preferable that leave be granted for him to present the said defence. This principle was laid down in the famous Indian case of M/S Mechalec Engineers and Manufactures vs M/S Basic Equipment Corporation [1 977] AIR 577 SC. The weight of that authority lead me to state that leave to defend should be granted if:- The defendant affidavit satisfies the Court that there are merits and triable issues. The defendant's affidavit indicates that he has a fair or a bonafide or reasonable defence, although not a positively good one. The defendant discloses such facts as may be deemed sufficient to entitle him to defend or that he shows such a state of •tffairs that lead to the inference that at a trial of the action, he may be able to establish a defence to the plaintiffs ci aim. 1 . 4 CLAt. I 6

k in 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 judgement 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. /4 S.J/Bw na JUDGE 8/9/2000 (h