Rigby J:

This was an appeal from a decision of the learned Registrar refusing leave to the appellant to defend proceedings brought against him under O. 14 of the Rules of the Supreme Court and giving the respondent leave to sign final judgment against him on the claim.

At the commencement of the appeal Mr. Chandler, for the respondent, raised, but did not seriously press, the preliminary point that the appellant was out of time with his appeal. Order 54 r. 21, which follows almost identically O. 54 r. 21 of the English Rules of the Supreme Court, provides that in the case of an appeal from a Registrar to a Judge in Chambers not only must the appeal summons be taken out within five days from the Registrar's decision, but it must also be made returnable for hearing before the Judge within the five days. (See the cases of Bell v. The North Staffordshire Railway Co. [1878-79] 4 QBD 205 and Gibbons v. The London Financial Association [1879-79] 4 CPD 263).

The normal practice in the Penang Supreme Court Registry is for the Registrar himself to fix a date for the return for hearing of the summons. In this instance the Registrar's decision was given on 14 October 1958, and the notice of appeal lodged on the 17 October. It was, therefore, lodged well within time. I was informed by the Registrar during the hearing of this appeal, and in the presence of Counsel for both sides, that at the time he received the notice of appeal he had already closed the List for the next ensuing date for work in Chambers, namely, 20 Monday October. He, therefore, fixed the date for hearing in the List on the next date for the hearing of Chamber matters, namely, Friday, 24 October - the date on which the appeal was, in fact, heard. I was, therefore, fully satisfied that I ought to enlarge the time for hearing up to and including Friday, 24 October 1958.

As a matter of practice, however, it is as well that advocates and solicitors should note that the primary responsibility rests with them to ensure that the notice of appeal in such matters should not only be taken out but also be made returnable within the period of five days. I think the most suitable course for Counsel to ensure that the notice of appeal is returnable within the period of five days would be to request the Registrar to include it in the List (if need be, only for mention) for one or other of the days for the hearing of Chamber matters, namely, Mondays or Fridays.

Turning now to the appeal itself. It does, to my mind, involve a point of law of considerable interest and practical importance as to the circumstances, if any, in which the payment by a debtor of a smaller sum in satisfaction of a larger amount may constitute a valid discharge of the whole debt and thereby afford a good defence to a claim for the balance of the full amount of the original debt due.

The plaintiff claims by way of Specially Endorsed Writ for the sum of $12,000, being the balance due and owing to the plaintiff in respect of the sum of $50,000 paid by the plaintiff to the Bank of China as guarantor for the defendants under a contract of guarantee dated the 9 December 1955.

Under O. 14 r. 2 the plaintiff applied for leave to enter final judgment on the ground that there was no defence to the action. The first defendant, on behalf of both defendants, filed an affidavit showing cause. By his affidavit he admitted that the payment of the sum of $50,000 by the plaintiff to the Bank of China as guarantor for the defendants' firm had been made, but he averred that the claim had been settled "through arbitrators in the following circumstances." The affidavit continues:-

(a) The plaintiff herein is the Chairman-Director of Messrs. Hock Bee Trading Co. Ltd., of No. 67, Beach Street, Penang, in which my father, Mr. Tan Shao Hwaand my brother Mr. Tan Seow Loon previously held shares worth $42,000.

(b) My firm was not doing well and I and the co-defendant feared that if the plaintiff took action against my firm,