006-NLR-NLR-V-25-ARUMUGAM-CHETTY-et-al-v.-SILVA.pdf
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Present; De Sampayo A.C.J. and Porter J.ARUMUGAM CHETTY et at. v. SILVA.
46—Z>. C. BaduUa, 3,713.
Proxy sent from India, stamped with Ceylon stamps—Not restampedI bythe Commissioner of Stamps within three months—Objection thatproxy was invalid.
Plaintiffs, who were away in India, sent a proxy from thereto their proctor stamped with Ceylon stamps. The proxy wasnot sent to the Commissioner of Stamps within three monthsfor him to stamp it as required by the Stamp Ordinance (sections17 and 42). Objection was taken to the proxy at the trial, anddefendant moved that the action be dismissed. The SupremeCourt allowed the plaintiffs to give a proper and sufficient proxyratifying, if necessary, what the plaintiffs proctor had so far donein the action.
fJpHE facts appear from the judgment.
F. Perera, for the defendant, appellant.
Bartholomeusz (with him Schokman), for the respondents.
May 31, 1923. De Sampayo A.C.J.—
In this appeal we have to deal with an extremely technicalpoint. The plaintiffs, who are Chetties resident in India, broughtthis action in the District Court of Badulla on a promissory note.Mr. A. P. Bartholomeusz, a proctor of that Court, filed a proxy,and took all the usual steps with regard to the action. Thedefendant is shown to have made attempts to evade service ofsummons, and finally the District Court had to order substitutedservice to be effected. Then the defendant came, and he wasallowed to file answer. In the answer he included this objection.The fourth paragraph of the answer was : “ The plaintiffs cannotmaintain the above action, inasmuch as they have not legallyauthorized their proctor to do so.” This is not only unnecessary,but a wrong allegation in the answer. It has no meaning as itis read, and the paragraph in question might well have beenstruck out. But it appears that the object of the plea, wrappedup in this form, was to raise the question that the proxy givento the piroctor was not properly stamped. It appears that theplaintiffs in India drew up a proxy in favour of Mr. Bartholomeusz,and stamped it with the Ceylon stamps for the value required forthe purpose of this action. The objection is founded ofi' the
1923.
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1923,
De Sampayo
A.C.J.
Arumugam
Chetty v.Silva
provisions of sections 17 and 42 of the Stamp Ordinance, No. 22of 1909, the effeot of which is to require that an instrument suchas this, when executed abroad, should, within three months of theirarriving in Ceylon, be sent to the Commissioner of Stamps, andhe should stamp the instrument with the stamps required. Theobjection, if it is to be dealt with, is a.good one so far as it went.But the defendant wishes to have the whole action dismissed,with costs, because of the imperfection in the stamping of theproxy of the proctor. I thirlk it was possible for the DistrictJudge to have made a proper order to put matters straight. But'the actual order he made was that a certain person, who appearsto hold a power of attorney from the plaintiffs, should sign theproxy and put on a new set of stamps, and thus enable the proctorto continue the action. I think the proper course would havebeen to allow the plaintiffs, through their attorney, to give aproper and sufficient proxy to the proctor, ratifying, if necessary,what the plaintiffs’ proctor had hitherto done in the action. Irefer to this matter of ratification, because up to the date of trialwhen the objection W'as argued, the defendant’s proctor did nothingto prevent the action going on. I think it is unjust now to putthe plaintiffs to the expense of bringing a fresh action.
I would, therefore, modify the order of the District Judge, and-make the order of the kind I have just indicated. Of course, ifthe plaintiffs do not follow that course, the Court will have sufficientauthority to deal with the case, and dispose of it in the best way itcan. Though this modification has been made here, the appeal haspractically failed, because the appellant’s counsel had strenuouslyargued the same objection as was presented to the District Court.In that argument he has failed. Consequently, the appeal astaken should be dismissed, but with the modification of the orderof the District Judge which I have mentioned. The defendantmust pay the costs of this appeal.
■ Porter J.—I agree.
Appeal dismissed.