005-NLR-NLR-V-34-KADIRESEN-CHETTY-v.-RAYEN-et-al.pdf
DALTON J.—Kadiresen Chetty v. Rayen
17
1932Present: Dalton and Drieberg JJ.
KADIRESEN CHETTY v. RAYEN et al.
87—D. C. Colombo, 39,448.
Promissory note—Failure to insert particulars—District Judge takes objectionex mero motu—Court of appeal will grant relief—Inadvertence—Money Lending Ordinance, No. 2 of 1918, s. 10.
Where in an action on a promissory note, without any objection beingtaken by the defendant, the Court ex mero motu held that the notewas bad as the particulars required by section 10 (1) (b) of the MoneyLending Ordinance had not been entered, and dismissed the action,—
Held, that the Court of appeal will consider whether relief should begranted to the plaintiff under the proviso to section 10 of the MoneyLending Ordinance.
PPEAL from a judgment of the District Judge of Colombo.
N. E. Weerasooria, for plaintiff, appellant.
L. A. Rajapakse, for second defendant, respondent.
May 2, 1932. Dalton J.—
The plaintiff sued the defendants for the recovery of the sum ofRs. 1,250, amount of principal and interest due, on a note, for Rs. 2,500and further interest as set out, made by the – defendants in plaintiff’sfavour. Judgment was entered against the first defendant in default inSeptember, 1930, but the second defendant filed answer denying his
1 (1909) 12 N. L. R. 212.
18
DALTON J.—Kadiresen Chetty v. Rayen.
liability. Whilst holding that that defence was entirely false, the trialJudge held that the action could not be maintained, as the note doesnot comply with the provisions of section 10 of the Money LendingOrdinance.
In so discussing the action the learned Judge acted ex rnero motu, sinceno objection was taken by defendants that the action could not bemaintained. He has, further, unfortunately not stated in what respectsthe note does not comply with the provisions of section 10, but afterhearing counsel we have acted upon the presumption that the defect isthat the note does not state what sum was deducted or paid in advanceas interest, premium, or charges at the time the loan was made.
When the plaintiff’s attorney was giving evidence, he produced hisbooks which showed that on the day the loan for Rs. 2,500 was made,the sum of Rs. 168.75 was deducted for interest. The marginal noteof the promissory note is silent as to this deduction. At no stage, however,was there any issue as to the enforceability of the note on this ground,and it is urged that the plaintiff was taken by surprise when his claimwas dismissed on the ground that it was unenforceable. It is not urgedthat the learned Judge was not entitled to act as he did, but it is urgedthat the plaintiff should have had some intimation that he might so act,in order that he might, if necessary, apply for relief under the Ordinance.Jf this Court holds that the note was not enforceable on the ground thatit fails to comply with the requirements of section 10 (1) (b), he asksthat he be given relief under that section on the ground that his defaultwas due to inadvertence and not to any intention to evade the provisionsof the section.
An application of this kind should as a general rule be made and dealtwith in the trial Court (see Vadivelu v. Velupillai1), but plaintiff seems tohave had no opportunity of applying for relief for the reasons stated.It is conceded that there is on the record all that is necessary for thisapplication to be dealt with. For these two reasons we have dealt with'his application on appeal.
There seems to be no doubt at all that plaintiff acted bona fide. Hisfailure to make the entry on the margin of the note was only seen whenthe entry was discovered in books on their production by his attorney.If he had wished to conceal that entry from the Court, he had ampleopportunity of doing so. The production of the books with the entry isagainst his own interest. There is further the finding of the trial Judgethat the defence is a false one.
In discussing the claim the learned Judge lays stress upon the necessityof strict action on the ground that the provisions of the Ordinance are" being flagrantly flouted. On an application for relief, however, as madenow to this Court under the circumstances set out, the Court hasto consider whether the default was due to inadvertence and not to anyintention to evade the provisions of the law.
That there was no intention to evade the provisions of the law is quiteclear. How he came to omit the entry on the margin of the note whilstmaking it in his books plaintiff has stated. Inadvertence has been
‘ 4 C. L. R. 43.
19
described as the effect of inattention, an oversight, mistake, or faultwhich proceeds from neglect of thought (Ramen Chetty v. RenganathanPillai *). No doubt plaintiff kneyr, as the trial Judge states, the require-ments of the law, but I think the evidence does show in the circumstanceshere forgetfulness or inattention on his part, due to a failure to addresshis mind fully to the necessity of making an entry in the note that hehad been careful enough to enter in his books. I have heard nothingfrom respondent’s counsel to lead me to think that that conclusion iswrong.
The plaintiff is in my opinion entitled to the relief he seeks. He is,therefore, on the other findings of the learned trial Judge entitled tojudgment. The order dismissing the action as against the seconddefendant must therefore be set aside, and a decree must be enteredagainst him for the sum and interest claimed. In the decree of September5, 1930, against the first defendant, the latter was allowed to pay byinstalments, but I presume that has not been done, otherwise the debtwould by now have been liquidated. Plaintiff is entitled to his costs inboth Courts.
Appeal allowed.
Drieberg J.—I agree.
♦