094-NLR-NLR-V-07-SITTRAVELU-v.-SINNETAMBY.pdf
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SITTRAVELU v. SINNETAMBY.
R., Batticaioa, 3,069.
Prescription-Action for damages for breach of an agreement—Ordinance No. 22of 1871, ss. 7. 10.
An action for damages for non-fulfilment of an agreement in writingis not prescribed within two yews, and is not within the scope of section10 of the Ordinance No. 22 of 1871. It comes under section 7.
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N this case the plaintiff sued the defendant for damages forbreach of an agreement in writing. The agreement was that the
defendant should build a house for the plaintiff before th<J end 5ofAugust, 1899, and in default to pay him Rs. 150'as damages. Theplaintiff brought the action on the 24th 0November, 1902. TheCommissioner held .hat the action was prescribed and dismissedthe plaintiff’s action.
5 He appealed.
1903.Jime 9.
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1903.
June 9.
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Wadsworth^ for appellant, submitted that the action was onefor breach of an agreement, and thus falls under section 7 ofOrdinance No. 22 of 1871. The actions for damages mentioned insection 10 of the Ordinance only refer to cases where there is no•contract, express or implied. Williams v. Balter, 8 S. C. G. 166.'Though the plaintiff prays for damages, still the cause of action isthe non-fulfilment of the agreement.
H. A. Jayamardene, for respondent.—Section 10 says thatno action for damages can be maintained unless brought withintwo years. There is no restriction as to the class of actions<5 S. C. C. 29).
Cur. adv. vult.
Oth June, *1903. Grenier, A.J.—
I am of opinion that this action falls under section 7 of OrdinanceNo. 22 of 1871, and that it is therefore not barred. The action isclearly on an agreement in writing, and the plaintiff seeks torecover the sum of Bs. 150 as damages for breach of it.
I find that the plea was not taken in the answer, but wasput forward for the first time on the day of trial. I would setaside the judgment of the Court below and send the case back fortrial. The appellant will have his costs of this appeal.
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