U. B. SENANAYAKE, Appellant, and M. ABDUL CADER, Respondent

074-NLR-NLR-V-74-U.-B.-SENANAYAKE-Appellant-and-M.-ABDUL-CADER-Respondent.pdf


WEERAMAKERY, <T.—Scnanayake v. Abdul Coder
255
Present: Weeramantry, J., and Wiiayatilake, J.
U.B. SENANAYAKE, Appellant, and M. ABDUL CRUDER,Respondent
S. C. 22167 (F)—D. C. Matale, 842{MS
Cheque—Action instituted by payee against drawer for recovery of sum due thereon—Averments of presentment for payment and notice of dishonour—Imperativerequirements—Bills of Exchange Ordinance (Cap. $2), ss. 45, 46 (J), 16 (2),46 (2) (e), 46 (3), 4S, 49, 50, 50 (2) (b), 9S (2).
AVhere, in an action upon a cheque, the plaint contains no averment ofpresentment for payment, nr of notico of dishonour, or of any circumstancesshowing that these essential requirements wero dispensed with, and no issuesarc raised at tho trial on any of these matters, the action must fail in limine.
Appeal from a judgment of the District Court-, Matale.
Vernon Jonklaas, Q.C., with P. Edussuriya, for tho plaintiff-appellant.
N. R. M. Daluwatte, with Kosala IVijayatilake, for the defend ant-respondent.
Cur. adv. milt.
November 13,1969. Weeramantry, J.—
The plaintiff-appellant sues tho defendant-respondent in this case fortho recovery of a sum of Rs. 12,000/- and interest thereon on tho basisthat Tho sum of Rs. 12,000/- was borrowed and received by the defendantfrom him upon a cheque for Rs. 12,000/- drawn by the defendant in hisfavour.
256
WEERAMANTRY, J.—SenanayaHe v. Abdul Coder
Thcro appeared to mo to bo somo room for argument in this caso, .haring regard to the averments in the plaint, that the action instituted'may perhaps bo construed as an action for money lent and advancedrather than one upon a bill of exchange. However, both parties seem tohave proceeded at all stages on the footing that the action was one uponthe cheque and summary procedure was accordingly followed. Further,learned Queen’s Counsel appearing for the plaintiff-appellant has alsoconceded that this action is an action upon the cheque, and it is thereforeupon this basis that I proceed to consider the legal questions involved.
The plaint contains no averment of presentment or of notice ofdishonour, or of any circumstances showing that these essentialrequirements had been dispensed with, nor were any issues raised atthe trial on any of these matters.
On the question of presentment it would appear however to bo theposition of the plaintiff that ho was in the circumstances of this caseexcused from this requirement. He has stated in Ids evidence that hedid not present the cheque to the bank for the reason, inter alia, that thedefendant had askecl him not to present it as ho was pressed for money.The learned District Judge, though not obliged to do so in view of theabsence of an issue on the question, has given his mind to the plaintiff'ssuggestion that presentment had been waived. Upon an examination ofthe plaintiff’s evidence the learned District Judge has quite rightlyconcluded that a request by the defendant not to present his chequesfor payment as he was short of funds clid not justify the non-presentmentof the cheque, for such a statement is quite different from a statementthat the legal requirement of presentment for payment as a pre-requisiteto actionability is being waived.
Again, on the question of notice of dishonour, thero is an averment inthe plaint that by a notice the plaintiff demanded the sum clue from thedefendant. This of course, is not a notice of dishonour, and is nosubstitute for the averment there ought to have been, that tlie chequewas dishonoured and that notice thereof was duly given to thedefendant.
The law on the necessity for proving presentment or any excusestherefor as well as dishonour or any excuses thcrofor is clear and wellsettled. It is somewhat- remarkable that although the importance ofthese matters as pre-requisites to the success of a claim, in such instancesas they are required, has been stressed timo ancl again by our Courts for acentury and a half, ancl although the importance of pleading such facts haslikewise been stressed, we all too often come upon pleadings ignoringthese requisites and trials conducted as (hough they did not exist. Thesedecisions, as will be observed, reach back to a time prior to the codificationin ISS2 of the English law relating to Eills of Exchange, for under theEnglish Common law as well this was tho accepted posit ion. Indeed
WEERAMAXTRY, J.—Senanayalc v. Abdul Coder
2o7
they reach back to a time even prior to the Civil Law- Ordinance Xo. 5of 1S52 which by section 2 required our Courts to apply, in questionsrelating to bills of exchange, promissory notes and cheques, the same lawthat would be applied in England in the like case at the correspondingperiod.
' Thus, as early as 1S21, a time long anterior to the Civil Law Ordinance,this Court decided in Boyd v. Benetl1 (1S20-33) Earn. 24 that a drawer of abill of exchange pa3'ablo to a third party is entitled to notice of dishonour.The Court there observed that no proof having been made that the drawerhad received notice of dishonour, to which ho was entitled, thero would boa valid objection to the claim, and had the action been founded on fhatonty, the plaintiff’s libel would have been dismissed.
Passing next to the period between the enactment of the Civil LawOrdinance and 1SS2, the 3’ear of codification of the English law, we seenumerous decisions indicating that the requirements of notice of dishonourand presentment were well recognised by our Courts as pre-requisites toactionabi]it3'. For example, in 1871 D. C. Colombo 56533— (1S71) Vand.165—this Court, citing the 5th edition of E3des on Bills, held that where adebtor indorses a note of a third party to his creditor the latter cannotsue for his debt without proving presentment and notice of dishonour.So also in Weerappah Ghelly v. de Silva2 (1SS4) 6 S- C. C. S2 Burnside,C.J. held that the pleadings against the last indorser disclosed no cause ofaction as they’ failed to aver among other matters presentment forp.-yyment and duo notice of dishonour. This case is of some specialinterest in view of certain very caustic observations made by the GiicfJustice in regard to the drafting of the pleadings.
Between 1SS2, the 3-ear of enactment of the Bills of Exchange Act inEngland, and 1027, we directly applied the provisions of the EnglishAct. Thus in the 3-ear 1007 the Court in Karuppen Chetly v. Palan iappaChe tty 3 (1907) 10 N.L.E. 27S applied section S7 (1) of the English Act of1SS2 and required presenfment of a note j^-ablo at a particular place,unless there was some, excuse for not so doing. Appfying this principle,tho maker was hold not liable when the note was not so presented.Apposite to the present case tho Court observed that though it wasinclined to think that tho case should be sent back for the framing.of a new issuo on the question whether there was an excuso fornon-presentment, on reconsideration it thought that the parties shouldbo held to tho issues which they had framed and accepted, and that,in the absenco of such an issue, the appeal should be allowed and theaction dismissed. *
* (18S4) C S. C. C. 82.
* (IS20-33) Ham. 21. ’
(1907) 10 N. L■ R. 278.
258
WEERAMANTRY, J.—Senanayake v. Abdul Coder
So also in 1917 Wood Renton, C.J. observed that presentment forpayment and notice of dishonour were conditions precedent to a right ofaction against the indorser on a promissory note and that the burden ofshowing that those conditions had been complied with rested upon theplaintiff (Murugappa Chelty v. de Silva1 (1916) 2 C.W.R. 33).
It is also important to note that when the Civil Procedure Code wasenacted in 1SS9 the English law had been codified by the Act of 1SS2 ;and the Civil Procedure Code, through the several specimen plaintscontained in its first schedule, makes it quite clear that these principles,which had originated in the English Common law, had been taken over byour legal system. It will be seen that in several of these specimens,where it is necessary in law to plead presentment or an excuse thereforor notice of-dishonour, such averments are expressly made. Shortlyafter itu introduction, we find Clarence, J. observing in Sadeyappa Chelty v.Lawrence 2 (1892) 2 C.L. Reps. 3 that according to the rules of pleadinglaid down in the Civil Procedure Code an excuse for non-presentment of apromissory note or a waiver of presentment must be specially pleadedby a statement of the facts relied on. It -was further held in thatcase that evidence would not be admissible on a question of excuse orwaiver of presentment in the absence of the necessary averments inthe plaint.
No change was brought about in respect of these matters by theenactment in 1927 of the Bills of Exchange Ordinance, in practically thesame terms as the English statute, with the provision also, in Section98 (2), that the rules of the Common law of England, including the lawmerchant, shall apply to bills of exchange, promissory notes and cheques,save in so far as they were inconsistent with the express provisions of theOrdinance or any other enactment for the time being in force.
It would be well at this point to refer briefly to the provisions of thisstatute in which, along with the Civil Procedure Codo, our law relatingto the matters under discussion is now contained.
Section 45 of the Bills of Exchange Ordinance requires that a bill beduly presented for payment in default of which the drawer and theindorsers shall be discharged. The same section makes detailed provisionsin regard to the manner of due presentment of a bill. Section 46 (I)proceeds to enumerate the circumstances in which delay in presentmentis excused and section 46 (2) the circumstances when it is dispensed with.One of the modes in which presentment is dispensed with is stated insection 46 (2) (e) to be waiver of presentment, express or implied. Section46 (3) goes on to stato that the fact that the holder has reason to believethat the bill will, on presentment, bo dishonoured, does not dispensewith the necessity for presentment.
{1916) 2 C. W. R. 33.
{1892) 2 G. L. Reps. 3.
WEEKAM AX TRY, J.—Senanayake v. Abdul Coder259
It will bo seen from these provisions that it is necessary for a plaintiffsuing a drawer upon the cheque to show that there was presentment and6inco he would ordinarily fail in default of proof of presentment homust in the event of there being no presentment prove the circumstancedispensing with this requirement.
Likewise section 4S sets out the requirement of notice of dishonourwhich must ho given to the drawer and each indorser, in default of whichdrawers and indorsers are discharged. Here again elaborate rulesare laid down as to notice of dishonour (section 49) and section 50states when delay in such notice is excused or dispensed with. Section50 (2) (b) shows that in regard to this matter as well, there may bowaiver, express or implied.
Inasmuch as an action would fail in the absence of such a notice, itbecomes clear that, as in the case of presentment, it is incumbent onthe plaintiff to prove such notice, or where it has not been given,circumstances which in law dispense with this requirement.
We see then that the law expressly contemplates waiver of thesestatutory requirements ; and the necessity for pleading and proving amatter of waiver is relied upon, is self-evident. As Lord Wright observedin Edridge v. Ruslomji1, (1933) A. I. R. Privy Council 233 at 236, waiveris a matter that depends on evidence of fact and where waiver is reliedon, it should be pleaded and an issue directed thereon, so as to affordthe other part-y an opportunity to adduce such evidence as he thinksproper.
Passing now to the more recent decisions on the subject, this Courthas expressly staled that in an action on a jwomissory note wherepresentment for payment is necessary lo make the maker and theindorser liable, it- is a necessary averment in the plaint that the promissorynote was duly presented for payment and was dishonoured (CeylonEstate Agencies and Warehousing Co. Ltd. v. de Alivis2 (I960) 70 N. L. It.31 at 39). This Court further observed that if there was any excuse fornot presenting the promissory note for payment, such excuse should bepleaded and that if the Court was to take a liberal view of the pleadingsthe defects should at least, be cured by raising the appropriate issues onthese matters at the trial, unless these facts were admitted by thedefendants. The Court consequently held that as the plaintiff had failedto nr ike this necessarj' averment in the plaint and had also failed to curethe defect in the plaint by raising the relevant issues at the trial,the plaint failed to disclose a cause of action on the first cause of actionin that case, on the promissory note. This first cause of action was
1 {1933) A. I, V. Privy Council 233 at 236.1 {I960) 70 N. L. P. 31 at 39.
260
WEERAJIAVTRY, J.—Senanayole v. Abdul Coder
therefore held to have been rightly dismissed. So also in de Alwis* v. Ranasinghe1 (1966) 69 N. L. R. 27S (see also Wijeuardene v.Kunjimoosa and Company 2 (1967) 70 N. L. R. 64) notice of dishonourwas held to be a condition precedent to a right of action against anindorser where a cheque is dishonoured, the Court observing that theposition that notice of dishonour has been dispensed with had not beenpleaded in the plaint and that no issue was raised thereon at the trial.In the exceptional circumstances of that case, while observing that itwould not be fair on the defendant to hold against him in appeal on apoint which he was not called upon to meet at the trial, the Court withsome reluctance granted an application for a re-hearing as thereappeared to be material from which an inference of dispensing withnotice of dishonour could have been drawn.
What our law upon the matter is would thus appear to be beyonddoubt, but it would be appropriate to refer finallj' to the Englishauthorities on this subject.
It has been held in English law that an averment of not ice of dishonouris an essential averment in a statement of claim against the drawer(May v. Chidley3 (1S94) 1 Q. B. 451; Roberts v. Plant* (1895) 1 Q. B. 597).So also in all cases where the plaintiff relies upon the fact that notice ofdishonour had been dispensed with, the matter of excuse or dispensationis a material fact and must be averred whether in the statement of claim(Burgh v. Legge5 (1S39) 5 M. & W. 41S) or in a special indorsement{Fruhavf v. Grosvenor 6 (1S92) 61 L. J. Q. B. 717 ; Sec also Halsbury, 3rded., vol. 3, p. 220 ; Bullen & Leake, Precedents and Pleadings, 11th ed.,pp. 123 and 135). Likewise, where the plaintiff relies upon a matter ofexcuse for non-presentment he must state such matter of excuse in thestatement of claim (Bullen & Leake, Precedents & Pleadings, 11th cd.,p. 132). With particular reference to the special procedure of proceedingsby specially indorsed writ, corresponding broadly with summary procedureupon liquid claims under our law, Byles observes (Byles on Bills, 21sted., p. 344) that where proceedings in the High Court are instituted byspecially indorsed writ under Order 3, Rule 6, the special indorsementmust aver performance of the conditions necessary to entitle the plaintiffto payment, such as presentment, protest and notice of dishonour or theexcuses for non-pcrformancc, in default of which the plaintiff wouldnot be entitled to summary judgment. Reference may also be made tothe Appendices to the Rules of the Supreme Court, 1SS3, Part V,Appendix C of which contains specimen statements of claim which maybe likened to those appearing in our Civil Procedure Code. A numberof these specimens show that averments of presentment and notice ofdishonour, or of excuses therefor, must be made.
*{ISOS) l Q. 13. S07.
(1S59) <5 M. it- n 41S.
(1S92) 61 L. J. Q. B. 717.
« (1066) GO N. L. It. 278.« (1067) 70 N. L. It. 64.
• (1S04) 1 Q. B. 451.
L. Peiris Aj Vo. fJA. Peirix. -01
It is dear that ilie plaintiff’s action, omitting as it docs to complywith these essential and imperative requirement * of law, must failin limine, and the plaintiff’s appeal is accordingly dismissed with cost;-'.
WlJAYATir.AKE. J.—I agree.
Appeal (/is»d?-i‘l.