Hasmani v Belge (Civ. App. No. 9/1938.) [1938] EACA 89 (1 January 1938)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and HAYDEN, J. (Kenya).

H. D. HASMANI, Appellant (Original Defendant) $\mathbf{v}$

BANOUE DU CONGO BELGE, Respondent (Original Plaintiff) Civ. App. No. 9/1938.

Appeal from decision of Dalton, C. J. (Tanganyika).

Application for leave to defend—Indian Civil Procedure Rules, 1908. O XXXVII—Leave to defend—Triable issue.

The suit was for the recovery of money alleged to be due on a dishonoured bill of exchange drawn by the attorney of the defendant. The defendant in his affidavit denied that he had received notice of dishonour and protest and averred that the attorney had no authority to draw the bill. Defendant appealed from an order giving him conditional leave to defend.

Held (23-8-38).—That if there is one triable issue disclosed by the affidavit supporting the application for leave to appear and defend then the defendant is entitled to have leave unconditionally to appear and defend. (Appeal allowed.)

Vellani for the appellant.

*Bown* for the respondent.

Sir Joseph Sheridan, C. J.—If there is one triable issue contained in the affidavit supporting the application for leave to appear and defend then the appellant is entitled to have leave to appear and defend unconditionally. In paragraph 4 of his affidavit he says, "I do not admit that I have received the notices of dishonour and protest". Mr. Bown in answer to a question put by the Court asking if a triable issue would have been raised had the appellant instead of saving "I do not admit" in regard to the notice of dishonour had said "I deny" replied very fairly that it might. Whichever expression is used it seems to me that the averment puts the plaintiff to proof as to whether notice of dishonour has been given. It has also been submitted that the appellant in drawing the bill in question in this appeal acted outside the powers contained in the Power of Attorney. The question of the construction to be placed upon the Power was considered by this Court in Civ. App. No. 17/1937, but that case concerned questions whether the Attorney had power to open an account with the respondent bank, to endorse a promissory note to the bank and to overdraw the account or borrow money on account of his principal. Law, C. J., in his judgment said "I have no hesitation whatsoever in agreeing with the learned Chief Justice that Esmail had authority not only to open an account with plaintiffs in first defendant's name but also authority to operate on that account by all necessary means, provided of course he did not exceed the special powers conferred on him under the Power". It seems to me that the

act of the Attorney complained of in this case may possibly be distinguished from the acts which it was held in Civ. App. No. 17/1937, the Attorney had power to do. I cannot say at this stage that the<br>decision in that case concludes the question raised in the present appeal. Accordingly, I am of the opinion that there is a triable issue here which entitles the appellant to obtain leave to defend unconditionally. I would allow the appeal with costs and allow the appellant to defend unconditionally. The costs in the Court below will abide the result of the trial. A written statement of defence, is ordered to be filed within three days of the 25th instant.

Whitley, $C. J.-I$ concur.

Hayden, J.—I concur.