101-NLR-NLR-V-59-H.-M.-CAROLIS-APPUHAMY-and-others-Appellants-and-FORD-FOOTWEAR-LTD.-Responden.pdf
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Carolis Appuhamy v. Ford Footwear Ltd.
Present : Basnayake, C.J., and de Silva, J.
H. M. CAROLIS APPUHAMY and others, Appellants, andFOKD FOOTWEAR LTD., Respondent
S. G. 240—D. G. Colombo, 37,383/31
Frescriplion Ordinance {Cap. 55)—Section S—“ After the dcbt.shall have become due ”—Action for goods sold and delivered—Compulation of prescriptive period..
Tn an action to recover money duo as balance on account of goocb, sold anddelivered, tho defendant claimed that the plaintiff's claim nos barred bj'.pre-script ion. The evidence disclosed that tho plaintiff sold goods on credit to the
BASXAYAK.es, C.J.—Carol is Appuhamy v. Ford Footwear Ltd.
451
defendant and that there was no definite limit ns to the period of credit and that,so long 03 tho defendant made payments on account, credit was continued untilpayment was demanded.
Held, that, in such a case, the defendant must, in order to succeed in a plea ofprescription, prove that there was a definite period of credit and that at thoend of that period tho debt became paynblo and that tho date on which thodebt bocamo payable was more than a year prior to the date of institution oftho action.
ApPEAL from a judgment of the District Court, Colombo.
A. L. Jayasuriya, with Colin Jlendis, for Defendants-Appellants.P. Somatilokam, for Plaintiff-Respondent.
Cur. ado. vult.
.February 27, 1958. BaSxayake, C.J.—
This is an action for a sum of Rs. 645 being balance due on account ofgoods sold and delivered by the plaintiff, a limited liabil^ company,to tlie defendants who at the relevant period carried on business inpartnership. The 2nd defendant gave evidence and denied that anymoney was due to the plaintiff and alternatively claimed that theplaintiff’s claim was barred by prescription. The learned District Judgelias disbelieved the 2nd defendant and held that the claim is not pre-scribed. We are not disposed to disturb the learned Judge’s findings'of fact. We propose onl3r to consider the question of prescription.Section S of the Prescription Ordinance provides that “ no action shall bemaintainable for or in respect of an3' goods sold and delivered, or for an3rshop bill or book debt, or for work and labour done, or for the wages ofartisans, labourers, or servants, unless the same shall be brought withinone 3'car after (he debt shall have become due.”.
The onus of establishing that the plaintiff’s action is barred b3r the abovesection is on the defendants. The3' must prove that the debt claimed b3rthe plaintiff became due over a y ear before tho institution of tho action.This they have' failed to do. Thc3‘ have not proved what the terms ofcredit were. The account filed with the plaint shows that the plaintiffsupplied goods to the defendants from time to time and that the lattermade jjayments on account from time to time. The last of such pa3'mentsithe learned Judge finds was made on 19th April 1055, less than eightmonths before the institution of the action. In June 1955 when tho.defendants were sent a letter of demand the3' wrote back asking for a'detailed statement of their account. It was sent in October 1955. , Butas no pa3-ment was made in November 1955 the plaintiff asked for acheque either in part pa3iuent or in full settlement but as there wasno response to this request this action was instituted on Sth December.1955. . The evidence discloses that tho plaintiff sold goods on credit totho defendants and that there was no definite limit as to the period ofcredit and that so long as the defendants made payments on account"■
452' "Sri Lanka Omnibus Co., Ltd. v. Perera
^ .Jit .-1-' i*2;
cre&T was^tmtihu^d until payment "was demanded. In such a case the.defendants must in-order to succeed in their plea prove that there was adefinite period of credit and that at the end of that period the debt becamepayable- and that the date on which the debt became payable is morothan a vear from the date of institution of the action.
There is no such proof in this case. The appeal is therefore dismissedwith costs..
de Silva, J.—I agree.
Appeal dismissed.