027-NLR-NLR-V-48-MEERA-PULLE-Appellant-and-GOONERATNE-Respondent.pdf
Me era Pulle v. Gooneratne.
77
1947Present: Wijeyewardene and Canekeratne JJ.
MEERA PULLE, Appellant, and GOONERATNE, Respondent.
81—D. C. (fnty.) Kandy, 1,469.
Mortgage of movables—Consent order that hypothecation should be madewithin a certain time with Secretary of Court—Failure of due delivery ofbond—Facts for consideration.
On January 21, 1946, consent order was entered that plaintiff shouldhypothecate certain movable property with the Secretary of the Court“ within 7 days from today
The plaintiff executed, a notarial bond on January 28, 1946, hypotheceating the property with the Secretary of the Court and filed it in Courton January 29, 1946: The bond, however, was not registered.
Held, that there was no delivery of the bond within the stipulated time.
y^PPEAL from an order of the District Judge of Kandy.
V. Perera, K.C. (with him H. W. Jayewardene and G. T. Samara-wickreme), for the plaintiff, appellant.—The consent motion does notcontain any covenant that the bond should be filed in Court. The bondwas executed on the 28th and was therefore in time. In interpreting thewords “ within seven days from today ”, one of the terminal days mustbe excluded from the computation. See for. instance section 11 (a) of theInterpretation Ordinance ; Encyclopaedia of the Laws of England VoL 14,page 84. Delivery of the bond to the mortgagee is not necessary tocreate the obligation. The Secretary had approved the draft on the 28th.As the bond must be regarded as one in favour of the Crown, registrationwas not necessary. Unless a statute expressly so states, it does notbind the Crown. The mortgagee could have registered the bond if he
78
WUEYEWARDENS J.—Meera Pullc v. Gooneratne.
had so desired-—Section 26 (1) Registration of Documents Ordinance.The Secretary was the nominee of the defendant, and the possession ofthe defendant was possession by the Secretary. The bond was binding,in spite of non-registration, as between the parties. See Mitchell v.Fernando'.
Thiagalingam (with him S. Canagarayar), for the defendant, res-pondent.—It was the intention of the parties to create a valid and bindinghypothecation. The Court will imply that in order to give the agreement“ business efficacy ”. See Cheshire and Fifoot on Contracts p. 102.Section 18 of the Registration of Documents Ordinance requires regis-tration of the instrument where the mortgagee does not have possessionof the movables, in order to create a valid and effectual mortgage. Seealso Mohamad v. Eastern Bank3; Gunatileke v. Ramasamy Pulle*;Appuhamy v. Appuhamy *. The bond given to the Secretary cannot beconsidered a bond in favour of the Crown—Fernando v. Fernando*.
In the expression “ within seven days from today ” effect shouldbe given to both “ within ” and “ from ”. Both terminal days shouldbe included—-Norton on Deeds p. 182. The Bond though executed onthe 28th was delivered to the Secretary only on the 29th. The plaintiffwas therefore clearly out of time. Party undertaking to do a thingshould do all ancillary acts that are necessary for its proper execution.The plaintiff should have sent the deed for registration within time.
V. Perera, K.C., in reply.
Cur. adv. vult.
January 24, 1947. Wijeyewardene J.—
The plaintiff filed this action for the recovery of a boiler and enginegiven on hire to the defendant and for damages and arrears of rent dueto him. The defendant filed answer praying for a dismissal of theplaintiff’s action and claiming in reconvention a sum of money on accountof repairs effected by him.
On November 30, 1944, a consent decree was entered. It provided,inter alia: (a) that the defendant should be permitted to use the boilerand engine for a period of one year from that date ; (b) that, on theexpiry of that period, the defendant should at his expense deliver theboiler and engine in working order to the plaintiff at Colombo and (c)that, on defendant failing to give such delivery, the plaintiff should beentitled to issue writ for obtaining possession of them or for recovery ofRs. 10,000 as their value.
On November 27, 1945, the defendant filed papers in Court allegingthat the plaintiff failed wrongfully to take delivery of the boiler andengine though they were duly tendered to him in terms of the decree.He said he incurred an expenditure of Rs. 1,120 by reason of plaintiffsfailure to take delivery and was incurring expenses at Rs. 150 a monthfor storing the boiler and engine in Colombo. He moved that satisfactionof the decree be entered and that an order be made in his favour for thesums claimed in the application. The plaintiff filed a counter affidavit
* (1945'T46 N. L R 265.* (1931) 33 H. h. R. 73 at 82.
» (7.9/9) 6 C. W. B. 125.* (7932) 35 N. L. R. 329.
« (7927) 23 N. L. B. 453.
WUEYEWARDENE . J.—Meera Pulle o. Gooneratne.
79
stating that the defendant failed wrongfully to give him an opportunityfor ascertaining the condition ot the boiler find engine, before he accepteddelivery, and that he spent Rs. 450 in arranging to take delivery. Heprayed for the dismissal of the defendant’s application and for an orderagainst the defendant for Rs. 450. He asked further, that, if the boilerand engine were not found t,o he in working order, he should be given awrit for the sum of Rs. 10,0OQ nientioned in- the decree.
The defendant’s application of November 27, 1945, came up for inquiryon January 21, 1946, when the District Judge made the following consentorder:—
The inquiry is adjourned on the following terms which are agreedbetween the parties—
The plaintiff will hypothecate the boiler and engine with the
Secretary of this Court within 7 days from today to securepayment of any money that may be awarded to the defendanteither by way of damages or on any other count in theproceedings.
The plaintiff will and shall at all events take delivery of and
remove at his expense the engine and boileron 30th
January, 1946-.
In the event of plaintiff failing to give security as provided for
in paragraph 1 hereof or failing to take delivery of the engineand boiler for any reason whatsoever, it is agreed that thepresent application of defendant will stand allowed and decreedas prayed for therein with costs in either eventuality.
.
..
(6)-.
The plaintiff executed a notarial bond P 1 on January 28, 1946, hypothe-cating the boiler and engine with the Secretary of the District Court andfiled it in Court on January 29, 1946. The bond, however, is notregistered. The plaintiff also took delivery of the boiler and engine on thedue date.
When the defendant's application of November 27, 1945, came up forinquiry on March 18, 1946, the District Judge held that the plaintiffhad failed to give security in terms of paragraph 1 of the consent order ofJanuary 21, 1926, and entered judgment for plaintiff for Rs. 1,120 andRs. 300 as damages—both being items referred to in the defendant’sapplication—and also for a further sum of Rs. 250 “ being expensesincurred in connection with the delivery of the boiler and engine onJanuary 31, 1946 The plaintiff’s appeal is from that order.
It was clearly the intention of the parties that the plaintiff shouldtender a duly executed bond to the Secretary. The plaintiff got a Notaryto prepare the bond and executed it on January 28th. The bond wasfiled by the plaintiff in Court on January 29th at 4 p.m. There has beentherefore no delivery of the bond within the stipulated time and the48/12
SOERTSZ SJ*J.—Perera v. Wijesinghe.
defendant is entitled to an order under paragraph 3 of the consent order.Under paragraph 3 the defendant is entitled to claim only the sums referredto in the application of November 27, 1945. That application does notrefer to the sum of Rs. 250 allowed to him by the District Judge as“ expenses incurred in connection with the delivery of the boiler andengine on January 31, 1946.” I would affirm the order, appealed against,deducting Rs. 250 from the amount mentioned therein.
The defendant is entitled to the Costs of appeal.
Canekeratne J.—I agree.
Order affirmed.