065-NLR-NLR-V-72-G.-A.-PUNCHINONA-Appellant-and-L.-J.-LEELAWATHIE-Respondent.pdf
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Punchinona v. Leelaicathie
.1967 Present: H. N. G. Fernando, C.J., and Abeyesundere, J.
G. A. PUNCHINONA, Appellant, and L. J. LEELAWATHIE,
Respondent
S. G. 107(63 (F)—D. C. jMaiara, 1449(31.
..Promissory note—Designation, of payee—Reasonable certainty—Bills of ExchangeOrdinance {Cap. S3), s. 7 (3).
A promissory noto •which is made payabio to a person or his heirs on demandis valid. In regard to such a promissory noto it cannot bo contended that tliopayoo is not specified with certainty.
Peter v. Suriapperuma (20 N. L. It. 31S) not followed.
y.PPEAL from a jud gment of the District Court, Matara.
O.Ranganalhan, Q.C., with 11'. 5. S. Jai/awardene, for the plaintiff-.nppcllant.
G. T. Samnrcnvichrame, Q.C., with E. St. N. D. Tillekaralne, forthe defendant-respondent.
Cur. adv. vult.
H. N. G. FERNANDO, C-J.—Ptinchinona v. Leclaicalhie
305
March 7, 1967. H. N. G. Fernando, C.J.—
This action for the recovery of a sum of Rs. 4,000, being the amountspecified in an instrument proved to have been signed by the defendant,was dismissed solely on the ground that, although the instrumentpurported to be a promissory note, the payee was not specifiedwith certainty. The promise in the instrument was (according to thetranslation from Sinhala) to pay the plaiyitiff or her heirs on demand. Indismissing the action on this ground, the learned District Judge properlyfelt bound to follow the judgment of 2 Judges of this Court in Peter v.Suriapperuma x, where the designation of the payee was in almostidentical terms.
In that case, the Court relied on an English decision {Yates v. Nash)2,.in which a note had been drawn in favour of the holder of an office forthe time being. That decision ceased to be good law with the enactmentof the Bills of Exchange Act, 1SS2, which expressly declared that a bill-of exchange .may be drawn Jn favour of the holder of an office for thetime being (e.g. S. 7(2) of the Ceylon Ordinance, CapTS2j. With'respect,,it was in my opinion unsafe for this Court in the Ceylon case to rely on astatement in an English decision the effect of which had been expresslyaltered by legislation. The particular statement was that the payeemust be capable of being ascertained with reasonable certainty at thetime the bill is drawn. Soertsz, J. in Silva v. Jayaiceera3, impliedlycriticised the statement by adding after it a mark of exclamation, but itwas not necessary in the case before him to dissent from the decision inPeter v. Suriapperuma.
A common form of promissory note' contains a promise to pay X.Nevertheless, the promise is enforceable at the instance of X*s legalrepresentative, whose identity cannot be ascertained with reasonablecertainty at the time when the promise is made. Nor is there suchreasonable certainty where paj'ee is “X or order”. The uncertainty inboth these common forms of bills is no less than the uncertaintyregarding the identity of heirs when a bill is drawn in favour of "X orhis heirs”. So long as X is alive, there is perfect certainty that X alonecan demand payment; and after the death of X, the difficulty ofascertaining who can demand payment is no different from the difficultywhich can arise upon the death of the sole payee of a bill. The “heirs”of X will be either those named in a last will, whether generally orwith special reference to the bill, or else the heirs upon intestacyascertainable in the course of testamentary proceedings.
I must add that Ennis J. (who participated in the decision of Peter v.Suriapperuma) held subsequently (at the report appended at 37 N. L. R.28) that a note (as translated from the Sinhala) in favour of X or " aperson who comes into possession of the document in the proper manner ”did designate the payee with sufficient certainty. I am satisfied that“heirs” is a designation which is narrower and more certain than that,which Ennis J. found acceptable.
1 20 N. L. R. 313.* (1360) 29 L. J. O. P. 306.
* 39 N. L. It. 239.
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Podimenike v. Inspector of Police, Kiriella
For the reasons stated I must express disagreement with the decisionby which the trial Judgo -was bound. Sitting on a bench of 2 Judges, I-am not bound to follow it.
I would allow the appeal with costs and enter judgment for the.plaintiff as prayed for.
Abeyesundere, J.—I agree.
Appeal allowed.