HEWAVITARNE v. GOVINDARAM

016-NLR-NLR-V-44-HEWAVITARNE-v.-GOVINDARAM.pdf


HOWARD C.J.—Hewavitame v. Govindaram.
69
1942Present: Howard C.J. and Soertsz J.
HEWAVITARNE v. GOVINDARAM.
239—D. C. Colombo, 3,813.
Sequestration of goods—Wrongful and malicious—Mandate not carried out—•Security by defendant—Claim for damages.'
Where the plaintiff, wrongfully and maliciously applied for andobtained a mandate of sequestration against the. defendant but thesequestration of goods was not effected as the defendant gave adequatesecurity to satisfy the plaintiff’s claim,^
Held, that the defendant was entitled to ■ claim damages if the issue, of the mandate, injured his reputation.
Hadjiar v. Adam Lebbe 143 N. L. R. 145) followed.
^^PPEAL from a judgment of the District Judge of Colombo.,
H. V. Perera, K.C. (with him J. E. A. Alles and M. Ratnam), ioi theplaintiff, appellant.
J. E. M. Obeysekere for the defendant, respondent.
. Cur. adv. vult.
October 27, 1942. Howard C.J.—
The plaintiff appeals from a decree of the . District Court,. Colombo,ordering: him to pay to the respondent a sum of Rs. 1,000 on his claim jinreconvention in respect of the plaintiff wrongfully, applying for aridobtaining a mandate of sequestration . against the . respondent. Indeciding this issue in favour of the respondent the learned Jjidge has;held that the appellant acted wrongfully and maliciously, the term
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HOWARD CJ.—Hewavitame v. Govindaram.
“ maliciously ” being used in the sense as explained in the course of thejudgment in Bosanquet & Co. v. Rahimtulla & Co.1 The followingpassage from the judgment of the learned District Judge throws a lighton the reasoning that guided him in arriving at a verdict in favour of therespondent: —
“ If the plaintiff chose to entrust the litigation to an unscrupulousagent or if he chose to act upon the false statements of Gajanayakewithout making sufficient investigation himself in order to ascertainthe truth of those statements he must be held responsible for theacts of his agent or to have acted recklessly and so liable for theconsequences.”
The appellant brought his action for the recovery of the sum ofRs. 1,356.33 due on a promissory note on September 19, 1939. OnSeptember 20, 1939, he filed a petition and moved the Court to issue amandate of sequestration authorising the Fiscal, Western Province, toseize and sequester the goods, stock-in-trade and the effects of therespondent lying at No. Ill, Chatham street, Colombo, to a -valuesufficient to cover the petitioner’s claim and costs. In view of the alle-gations in the affidavit made by one Gajanayake, filed with the petition,the Judge directed that a mandate of sequestration be issued to seizeand sequester goods belonging to the defendant to the value of Rs. 1,500on the appellant giving security by hypothecating immovable propertyand by deposit of costs. The Fiscal was also directed not to sequesterthe goods of the respondent if the respondent gave adequate security inRs. 1,500. On September 21, 1939, the respondent deposited the sum ofKs. 1,500 in Court. The mandate of sequestration was subsequentlydissolved.
The law with regard to an action to recover damages for wrongfullyobtaining a mandate of sequestration was considered in the recent case ofHadjiar v. Adam Lebbe {supra). In that case it was held that an action willlie even where there has been no actual sequestration of the goods, providedthe issue of the mandate resulted in some damag^ to reputation. In thepresent case there was no actual sequestration of the goods, but there wasevidence that the reputation of the respondent was damaged. The onuswas also on the respondent to prove (a) that the appellant acted maliciouslyand (b) there was want of reasonable and probable cause. This involves aconsideration of the manner in which the appellant obtained his mandateof sequestration. It was obtained on two affidavits, which were madein support of the petition. The first affidavit was made by the appellanthimself. After declaring and affirming as to the respondent’s indebtednessto him, the appellant goes on to say that he is informed and verilybelieves that the respondent is transferring his business to Rama SilkStores of Chatham street and that in doing so he is acting fraudulentlyand with a view to avoid payment of the said debt. The appellant also^declares that the respondent intends as soon as the said transfer isconcluded to go back to his home in India. The second affidavit is madeby Gajanayake, who declares and affirms as follows : —
That he carries on business in Chatham street quite close to thebusiness of the respondent.
1 {1931) 33 N. L. R. 324.
HOWARD C.J.—Hewavitame v. Govindaram.
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That it is common talk among the traders of the said locality that
the respondent is transferring his business to Rama Silk Storesof Chatham street and that as soon as he has effected the saidtransfer he proposed to go back to his home in India.
That he had questioned the respondent and he admitted that he
was transferring his business.
That he requested the respondent to pay the amount due to the
appellant and the respondent was unwilling to do so.
That he informed the appellant of this fact.
In giving evidence, the respondent stated that at no time did he arrangeto sell the stock in his shop in Chatham street either to Rama Silk Storesor anyone else. So far as the alleged sale to Rama Silk Stores is concernedthe evidence of the respondent on this point is corroborated by oneJamandas Gianchand, the proprietor of Rama Silk Stores. The re-spondent further states that in March, 1939, he engaged a shop in Hattonand he was intending to open a branch and take his stock there, which heeventually did. Gianchand also states that he knew of the respondent’sprojected move and approached him so that he could obtain an intro-duction to the respondent’s landlord and secure his shop. The re-spondent also denied that he ever told Gajanayake that he was selling hisstock. Moreover, he gave evidence with regard to the value of his stock.This evidence, if believed, would show that he was solvent. The appellantadmitted that Gajanayake was the man who gave him the information.That, although in addition he got information from the respondent’ssalesman and from a bhai, he acted on Gajanayake’s information. Gaja-nayake in the witness-box maintained, as in his affidavit, that the re-spondent admitted he was going to transfer the stocks' to the Rama Silk*Stores. He also stated in evidence that Gianchand told him he wasgoing to take over the respondent’s stocks.
The learned Judge has accepted the evidence of the respondent andGianchand and rejected that of Gajanayake in regard to the supposedstatement of the respondent that he was selling his stocks to the RamaSilk Stores. This is a finding of fact which it is not for this Court tocanvas. The respondent has, therefore, established that he had not atany time fraudulently alienated'any property. The appellant has not beenable to show that, at the time of swearing the affidavit of September 18,1939, he knew of any fact or facts which justified him in stating thathe believed the respondent was fraudulently alienating any property.If he accepted the information of Gajanayake and acted on it, his conductwas not that of a reasonable man of ordinary prudence. In swearingto this affidavit the appellant was asserting something that he had noreason to believe was true and so something he could not believe to betrue. Consequently, he had no reasonable or probable cause for petition-ing for the mandate of sequestration. His object in applying for such amandate and swearing to the affidavit was in order to obtain morequickly the money owing to him. He was, therefore, attempting toachieve this object by improper means. His action was in bad faithand therefore malicious in the legal sense of the term.
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HOWARD C.J.—Hevoavitame v. Govindaram.
In these circumstances, I am of opinion that the learned Judge wasright in holding that the appellant acted wrongfully and maliciously.The amount of damages, namely Rs. 1,000, is clearly too high and mustbe reduced to Rs. 250. Inasmuch as each side has partly succeeded onthis appeal, I think there should be no order as to costs.
Soertsz—I agree.
Appeal dismissed.