(COURT OF APPEAL)*

ALEX SARANDIS v. ABDO TADROS

AC-REV-299-1966

 Principles

·  Negotiable Instruments—Promissory notes accepted instead of debt—There is a presumption that such promissory notes are only conditional payment

Acceptance of negotiable bills, e.g., promissory notes, for a liquidated debt arouses a strong presumption of conditional payment of the debt. Therefore if the bills are dishonoured, then the creditor is entitled to recover payment of the debt unless the contrary is proved, i.e., parties intended that the debt be discharged by acceptance of the bills. Such intention must be specifically pleaded

Judgment

Advocate: Elias Kesses for applicant

Osman El Tayeb J. September 11, 1966: - Plaintiff claimed the recovery of a liquidated sum of money being the price of goods sold and delivered. Defendant set up the defence that this debt was dis charged by the acceptance by plaintiff of a number of promissory notes, and plaintiff, therefore, has no cause of action, and applied for dismissal of the suit. Defendant’s advocate was given a chance to amend his statement of defence, but he insisted ott this same defence without more.

The learned District Judge rejected this defence and passed a decree in favour of plaintiff. The reasoning was that the promissory notes were only conditional payment, and since defendant did not contend that any of them were settled, the plaintiff can sue ott the original debt.

The learned Province Judge by a note on the law on the subject, with which I substantially agree, dismissed the application for revision made to him.

The learned advocate for defendant is still arguing that the debt was discharged by the acceptance of the promissory notes, and the remedy of plaintiff only lies on suing on those notes. He quoted in support of his argument two Sudanese cases that actually do not give him support. The first one is Sudan Commercial Bank v. Mohamed Ahmed Mullah (1963) S.L.J.R. This is a case of breach of contract in which the defendant pleaded that there was discharge of liability by an apology that was accepted by the other party. It was decided that there was no discharge. The second case is Heirs of Kisha Abdel Salain V. Molrcxned Ahmed Bandi and Others (1960) S.L.J.R. 62; it is on similar to the present.

For price of goods sold by plaintiff to defendants, plaintiff was given post-dated cheques drawn by a third party. It was decided that plaintiff was entitled to sue on the price, that his right to that was not discharged by the cheques.

I think all the authorities show that the acceptance of negotiable bills for a liquidated debt is considered as conditional payment. It is payment of the debt when the bills are honoured at the time of their maturity. There is a strong presumption of fact in favour of this proposition. But the contrary muy be’ proved, by shoWing that by the acceptance of the kills, the parties intended that the debt was discharged, and the 1iahilit or it as wholl> extinguished The Lacts rom which such an intention’ can’ be inferred have to be specifically pleaded, ‘without that the defence of discharge tu su c is not ac

The case of Hassab El Rasoul Hamad v. Mohamèd El Amin Ibn Oaf  (1965) S.L.J.R. 67 was rightly referred to by the learned Province Judge, and it is applicable.

For these reasons this application is summarily dismissed.