082-NLR-NLR-V-34-DEWASURENDRA-v.-DE-SILVA.pdf

3 (1908) 25 Times^Law Repo rtf: 12. see extractin 35 Empire Digest, p. 202, s. 282.
' 105 Law Times 583.^28 N.' L. .R. 339.
314
MACDONELL C.J.—Dewasurendra v. De Silva.
Plaintiff in any case can come under provisos in section 8. Re proviso(a) plaintiff was not aware of the law and did not keep books ; that isinadvertence.
Rajapakse, in reply, cited Edgelow v. MacElwee
March 8,1933. Macdonell C.J.—
This case was before the Court on a previous occasion but was sentback to the learned Commissioner to ask him to take certain additionalevidence so that it might be decided whether the plaintiff was or wasnot carrying on the business of a money lender at the time of bringingthis action.
At the first hearing before the learned Commissioner he was satisfiedon the facts that the amount claimed by the plaintiff was really owingby the defendant. That is a finding on fact from evidence before himupon which I do not propose to comment, because I think the case canbe decided independently of that finding of fact.
The point taken both at the trial, since it is specially mentioned inthe issues, and also in this appeal, is that the plaintiff carries on thebusiness of a money lender within section 8 of Ordinance No. 2 of 1918,but that he has not kept a regular account of his loans entered up in ahook such as that section requires. If the plaintiff is carrying on thebusiness of. a money lender and has not kept a proper book as requiredhy the section, then under that section he cannot recover unless hecan bring himself within the proviso to that section. The case wassent back to obtain evidence on these points.
We noy have the evidence of the plaintiff taken in accordance withth&t direction and it shows that since the beginning of 1929—this casewas instituted on September 1, 1933—he has himself instituted twenty-two money cases in the local Courts. He admits himself that he haslent money to teachers, clerks, pensioners, proctors, and others. I donot take into account the case which was sought to be put in evidence(C. R., 11,923), because I am doubtful how far it can be used against theplaintiff. If it was sought to use it against the plaintiff, specific portionsof the evidence in that case ought to have been put to him and he oughtto have been asked to deny or admit the same. But taking his ownevidence and the number of promissory note cases that he instituted inthe 2£ years between the beginning of 1929 and. September, 1931, I thinkone is justified in saying that there is evidence of system and continuitywhich seems to be the test, or at any rate a test, whether a particularbusiness is being carried on or not.
I must respectfully disagree with what the learned Commissionersays that because the plaintiff is one of those well-to-do men whosupplement their income by investing in loans, therefore he cannot bea money lender. I doubt the logical cogency of such a position fcinceit is clearly quite possible for a man to be well-to-do in other respects,any yet to supplement his income by very definite money lending.
i (1918) 1 K. B. 205.
MACDONELL C.J,—Dewasurendra v. De Silva.
315
Then there is the question of his not having kept books. His evidenceon that is that he began to keep books about a month before the insti-tution of this action as he came then to know that the law requiredthe keeping of regular books. He says that he now does keep regularbooks but he did not produce any in Court. He seeks to come underthe proviso to section 8. Sub-section (b) in that proviso may be heldto be covered by the learned Commissioner’s finding on the facts, butto win his case the plaintiff must also bring himself within the (a) partof that proviso, namely, that his failure to keep books was due to-inadvertence and not to any intention to evade the law. He says thathe at first did not know that the law required the keeping of regularbooks. I do not think such a plea can be accepted. Everybody isexpected to know the law, and it is not a very unreasonable or unprece-dented provision that a person should keep proper books of his businesswhatever that business may be. If a person carries on the business ofmoney lending, it is his clear duty to find out what the law says as tothat business. Two cases have been cited to me on the question ofinadvertence—28 N. L. R. 339 and an unreported case * 218—D. C.Colombo, 29,912 of December 18, 1929. I would refer particularly tothe latter of those two cases which speaks of a deliberate election notto keep books. I would almost be prepared to say that this seems tobe a similar case. But I would also point out that there is such a thingas a deliberate omission as well as a deliberate act of commission, andwhen you find a person carrying on such a business as is evidenced bythe number of cases that he brought and that he yet fails to keep anybooks, I think it is impossible to plead that there was in his caseinadvertence. Anyway, the balance of probability is that the omissionwas rather of the deliberate nature. If that is so, then I cannot holdthat he was covered by the provisions in section 8 and if that is so, thenby the provisions of that section he cannot recover.
The appeal must be allowed with costs, and judgment entered for the-defendant with costs in the Court below.
Appeal allowed.
* SAMINATHAN CHETTY v. WIDIYARATNAIS. C. 218—D. C. (Inty.) Colombo, 29,912.'
December 18, 1929. Dalton J.—
The plaintiff who was successful in the lower Court sued the defendant on apromissory note which was alleged to have been made by the defendant dated May12, 1928. ' The defence to the claim was that there was no consideration on the notealthough it had been signed by the defendant. There was a further!defence underthe provisions of section 8 of the Money Lending Ordinance of 1918,1 the defendantpleading that the plaintiff was a money lender and kept no books jas required bythe provisions of that section and that therefore the plaintiff’s claim was notenforceable. The learned District Judge has given judgment for the plaintiff"under the latter part of the section.I
The plaintiff admits that he did not keep books of account from 1926 until theend of 1928. In the course of his evidence he says he is a registered money lenderhaving registered his business in 1918, and that that- registration has continueduntil the action was brought. He also says he has been carrying on business con-tinously from .1918, that he kept books up to 1926, that these bopks were lost inIndia, and that during the interval from 1926 to December, 1928, he kept no books:as he did not carry on business, after he lost his books in India, I on a large scale.
■ 316MACDONELL C.J.—Dewasurendra v. De Silva.
In another place in his evidence he says he did not do much business after he losthis books in India. It is therefore conceded by the plaintiff that at the time thisnote was given he kept no books of account at all. The Advocate appearing forhim therefore sought relief for him under the provisions of section 8 of the MoneyLending Ordinance. That section provides that any person who carries on. thebusiness of money lending shall keep or cause to be kept—and in this case theplaintiff admits he had a kanakapulle in his employment—a regular account ofeach loan, clearly stating in plain words the transaction and enter it in a properbook as dscribed in the section. If he fails to do that he shall not be entitled toenforce any claim in respect of any transaction in respect of which default shallhave been made. It is admitted in respect of this transaction that default hasbeen made. The section, however, goes on to provide that the Court may giverelief against any such default (a) if the default was due to inadvertence and notany intention to evade the provisions of the section, and (b) that other materialbe produced whence the transaction may be satisfactorily proved. In this casethe learned District Judge in the lower Court has apparently read these two sub-sections as alternative. He has found that a certain document produced by theplaintiff, document P3, entitled the plaintiff to the relief he claims inasmuch asthat document, he says, sets out the transaction of this particular loan. The learnedDistrict Judge, however, has not dealt with the question of any default being dueto inadvertence as provided by sub-section (a).
Mr. Rajapakse, for the plaintiff-respondent, has urged that although the learnedDistrict Judge has not dealt with any question of the default being due to inadvert-ence the evidence does disclose that the act of the plaintiff in failing to keepbooks was due to inadvertence. He has failed to convince me that there is anyevidence whence one might conclude that the failure of the plaintiff to keep bookswas due to anything that could possibly come under the term “ inadvertence ”.He says that there has been no deliberate choice not to keep books but that duringthis interval of time during 1926 and December, 1928, a triend came to the plaintiff,that friend being the defendant, and asked him for a loan. In other words, heargues that he was not at that time carrying on the business of money lendingat all but that this is an isolated loan by a friend to friend which could not possiblycome within the words “ carrying on the business of money lending ”. The evidenceof the plaintiff himself clearly shows that this is not an isolated transaction duringthis interval of time. He says he was not carrying on business during this intervalon a large scale and that he was not doing a large business. He admits he wascarrying on the business of money lending.
The meaning of the word “ inadvertence ” has already been dealt with by thisCourt in the case of Ramen Chetty v. Renganathan Pillai1 when a question aroseunder section 10 of the same Ordinance. I do not propose to set out what the Courtheld to be inadvertence; but taking the words used in the judgment and taking theword “inadvertence” to mean exactly the opposite of deliberate election, it seemsto me the evidence in this case discloses that the plaintiff so far from inadvertentlynot keeping books deliberately elected not to keep books because he was not carry-ing on a large business. He is therefore not entitled to the relief which the lawsays people who fail to comply with the provisions of this, section are entitled to.Whether or not the defendant is an honest man or a dishonest man does not enterinto the matter at all. The Legislature has provided that in certain cases certainthings shall be done by persons carrying on the business of money lending. Ifthey do not do those things, they can get relief on certain conditions. If theycannot show to the Court that they are entitled to that relief—and here it seemsto me the plaintiff has not shown to the Court that he is entitled to that relief—then the law that we have to administer says he shall not be entitled to enforcehis claim in respect of the transaction in* which default shall have been made.Under the circumstances here I think the defence must succeed, having regard tothe plain admissions of the plaintiff.
Under those circumstances the appeal must be allowed and the plaintiff’s actiondismissed with costs in this Court and in the Court below.
Lyall Grant J.—I agree.
• 28 N. L: R. 339.