094-NLR-NLR-V-19-SOYSA-v.-ANGLO-CEYLON-AND-GENERAL-ESTATES-CO.pdf
( 374 )
1916.
Present: Wood Kenton C.J. and De Sampayo J.
SOYS A v. ANGLO-CEYLON AND GENERAL ESTATES CO.
366—D. C. Kandy, 23,614.
Indian Coolies Ordinance, No. 13 of 1889 (No. 9 of 1909), s. 24—Acceptanceoftunduand paymentbycheque—May acceptor
repudiate contract on the ground that discharge ticket was not sentforthwith1—If contract was repudiated on one ground, may anotherground of repudiation be pleaded as a defence 1
The word“ forthwith ”in section 24(2)of the Indian Coolies
Ordinance should be construed as meaning, not “ within a periodreasonable in the circumstances, ’’ but “ without any delay thatcan possibly be avoided.’1
A strict construction of the requirement of section 24. (2) of theIndian Coolies Ordinance is essential, if effect is to be given to itsletter anditBspirit. Non-compliancewiththis ' requirement on
the part oftheemployeris a ground for arepudiation by the new
employer of bis contract to take them over.
rjlHE facts are set out in the judgment.
jBawa, K.G. (with him SamarawicTcreme), for plaintiff, appellant.Elliott, for defendants, respondents.
Gut. adv. vvlt.
November 21, 1916. Wood Benton C.J.—
The plaintiff, Mr. B. E. S. de Soysa, sues the defendants, theAnglo-Ceylon and General Estates Company, Limited, who arerepresented here by their agent, Mr. Neil Campbell, of NuwaraEliya, for the recovery of a sum of Bs. 6,276.25, in the followingcircumstances. The plaintiff is the proprietor of the Hanguranketei:group of estates, which includes an estate called Wewatenne. InNovember, 1914, his superintendent, Mr. van Schoonbeck, issued fourtundus in respect of four kanganies and forty coolies of Wewatenne,•undertaking to pay them off on payment of the debts dueby them respectively. Those debts amounted to Bs. 6,276.25.-The defendants’ superintendent on Gonavy estate, Mr. Hawkes;accepted the .tundus, and on December 14, 1914, sent his cheque for.1the amount just mentioned by .his kanakapulle, Muniandy, towhom, according to Mr. van Schoonbeck, the four kanganies andforty coolies were handed over on December 20. Tfce cheque waspresented for payment at the bank on December 23, but was-returned to the plaintiff with an endorsement to the effect' thatpayment had been stopped. It was presented again on January 8,1915, and was dishonoured at the instance of the drawer himself.The plaintiff now' sues for the amount of the cheque on the ground'that he had completely fulfilled his part of the contract, by paying
( 375 )
off ?lftnd discharging the four kanganies and forty coolies from his 1916estate* and by delivering them over to the defendants* kanakapulle. Wooda defendant company in their answer pleaded that they had Renton C.J.repudiated the contract because several coolies were not coolies of Soyaa v.the plaintiff on Wewatenne estate, while others did not belong to Anglo-Oeylonf^eJfgangs of the kanganies mentioned in the tundus. At the trial ^Estat^^Cothe^defendants' counsel raised a preliminary issue of law, namely,wi&ther the plaintiff's action could be maintained at all, inasmuchas his superintendent, Mr. van Schoonbeck, had failed to forwardthe discharge ticket “ forthwith, ” as required by section 24 (2)of the Indian Coolies Ordinance, 1909.1 The' learned DistrictJtidge answered this issue in the negative, and dismissed the plain-tiff^ action with costs. There was an appeal to this Court. Thedecree of the District Court dismissing the plaintiff’s action wasse4f aside, and the case sent back for trial on the merits, andalga for the determination of the question whether Mr. Hawkes wasehntled to, and did, rescind the agreement before it was completed.
At’the further hearing two additional issues were accepted on thesuggestion of the defendants’ counsel, namely: —
“ (1) Were the defendants entitled to repudiate the contractbecause of the delay in sending the discharge ticket?
“ (2) Did they, in fact, repudiate the contract because of suchdelay? ”
The 'learned District Judge after hearing evidence on both sidesheld, in effect, that the plaintiff’s superintendent had not carriedput his part of the agreement, that there had been unreasonabledelay in the forwarding of the discharge tickets, and that Mr.
Hawkes was entitled to repudiate, and had repudiated, the contracton that ground. He, therefore, again dismissed the plaintiff'saction with costs; hence this appeal.
Before dealing with the facts, it may be desirable to refer to two-incidental points of law that were raised by the plaintiff’s counsel.
Tbfe • Supreme Court held on the previous appeal that the omissionof. Mr. van Schoonbeck to forward the discharge tickets to Mr.
Hawkes at once did not preclude the plaintiff from maintaining thepresent action, and there ts no need to consider that point furthernow- But we were pressed to define the meaning of the term‘‘'forthwith ” in section 24 (2) of the Indian Coolies Ordinance,
1and also to decide whether failure on the part of anemployer who was discharging coolies to send on the dischargetickets' to their new employer “ forthwith ”—whatever that expres-' ktbn may signify—would or would not be a good ground for the’ repudiation of the contract. In my opinion the word %* * forthwithiiife the enactment in -question should be construed as meaning, notwith in a period reasonable in the circumstances, ” but “ withoutany delay that can possibly be avoided. " Until the new employer
i No. 9 of 1909.
1946.
Wood
Renton C.J.
Soysa v.Anglo-Ceylonand GeneralEstates Go.
( 870 )
has received the discharge tickets, he is not in a position to enterinto a contract with the coolies under the Labour Ordinances, hehas no power to prevent .them from dispersing, and if they are“ bolters, ” he may himself run the risk of prosecution if he retainsthem on his estate without having the discharge tickets in hispossession. A strict construction of the requirement of section 24(2) of the Indian Coolies Ordinance, 1900,1 is essential if effectis to be given to its letter and its spirit. Moreover, in view of theperemptory character of that enactment, as well as the importanceto the new employer that it should be complied with, I see nothingunreasonable in treating non:compliance with this requirement onthe part of the employer discharging coolies as a ground for a
repudiation by the new employer of his contract to take themover. Even if it were the fact that Mr. Hawkes repudiated thecontract on another ground, he would still be* entitled to rely onthe default of Mr. van Schoonbeck in regard to the forwarding of -the discharge tickets, if that default were in existence, as it in faet .was, at the date of the repudiation. Mr. Hawkes’s letter of repudia-tion (P 5) was dated December 23, 1914; he had stopped paymentof his cheque on the 20th; the coolies were handed over to Muniandy .on the 20th; and Mr. van Schoonbeck was able on that day towrite a letter (P 4) to Mr. Hawkes acknowledging the receipt ofhis cheque, and stating that he would forward the discharge tickets“ shortly ”, Whatever may have been the state of Mr. van Schoon-beck’s health at the lime, there is nothing in the evidence toshow that he. was physically unable to send them on that or thefollowing day.
Two conflicting versions of the facts as to the coolies actuallydischarged were placed before the learned District Judge. The casefor the plaintiff was briefly this. Mr. van Schoonbeck on December 20paid off and discharged the kanganies and the coolies whom he hadecontracted to hand over to Mr. Hawkes. The money due to the coolieswas paid by him into their own hands. Mr. Hawkes’s kanakapulle,Muniandy, not only took over the coolies in question, but signed aformal receipt showing that he had done so. The delivery over of thekanganies and the coolies to Muniandy completed Mr. van Schoombeck’s obligations under the contract. If they bolted and dis-‘appeared before they reached Gonavy estate, the matter was one that-'concerned Mr. Hawkes alone. From the time that they were handedover to Muniandy, they were held by Muniandy at his employer’s risk.The case for the defendant, on the other hand, rested upon evidencethat the full quota of kanganies and, coolies was never delivered-over by Mr. van Schoonbeck to the kanakapulle, that through thefraud of the plaintiff’s head kangany Annavi—a fraud to thesuccessful perpetration of which Mr. van Schoonbeck had negligentlycontributed—the places of absent coolies really belonging to the'
i No. 9 of 1909.
( 377 )
„ *
gaiffs in question had been taken by other coolies who had no 1916.connection with these gangs, and that even the number of coolies who WooD■Ritually came to Gonavy estate on December 21 fell far short .of Renton 0.jthose whom Mr. van Schoonbeck had contracted to supply.Soysav.
i The points that may be put in favour of the plaintiff’s presentation Anglo-Ceylonf^f 4be case are these:—No charge of fraud was made against Mr. %8tate3tapj Schoonbeck. He gives positive evidence as to the coolies beingp&d off, and his story is corroborated by the receipt granted byAfuniandy, by the evidence of Solamally, the kanakapulle underAnnavi, and bv entries in the estate books. But, on the otherhand, Mr. van Schoonbeck admitted in cross-examination hisignorance of the contents of the books—an admission the effect of.which is not, to my mind, done away with by his explanation, ‘inre-examination at a later date, of the irregularities to which hisattention had been called. No person responsible for the bookswas, in fact, examined as a witness. Weerasoria, the teamaker,demined to stand sponsor for them. Solamally’s check roll wasnor the check roll from which the books were made up—that was' wiflh the conductor, who was not put in the witness box—but merelya private record of the accounts as between Annavi and the coolies.
A .medical certificate was put in at the commencement of the trialstating that the conductor was unable to attend. But the triallasted for some time, and there is nothing to show that his ailmentwas of such a character as to prevent his appearance at a later stage■ in the proceedings. Thangapalam, the clerk who was said byWeerasoria to have been in the immediate charge of the books, also#did not give evidence. But what was still more remarkable wasthe disappearance of Annavi in the course of the trial after hisidentity with the kangany Chiamboo, who was alleged' to havecarried out a similar fraud on another estate, had been proved bythe ' defendants’ witness Govinden. The explanation offered ofAnuavi’s absence, namely, that he had been summoned to Indiabj| a telegram with reference to the illness of some near relative, is' by ho means convincing. The accuracy of Mr. van Schoonbeck’sevidence that he had personally paid off each of the coolies hassbme doubt thrown upon it by the evidence of Weerasoria that,when the coolies were paid off to Gonavy, four or five of them wereabsent, having gone to the neighbouring boutiques. Finally, themeasurements taken by Mr. Hawkes of the coolies actually deliveredto him on their arrival proved that some of them at least were entirelydifferent persons from those to whom the discharge tickets related.
_Tti the face of such considerations as these, and there are manyothers with which I might have dealt, it is impossible for us to say thattSje District Judge has come to a wrong conclusion in the present case.
*1 would dismiss the appeal with costs.
Dfe "Sampayo J.—I agree.
Appeal dismissed.