Sediris Sing ho v. Wijesinghe
Present: Sansoni, C.J., and Sirimane, J.B. SEDIRIS SENGHO, Appellant, and D. J. WIJESINGHE,Respondent
S. C. 417(63—D. C. Avissawella, 101161M.
Rent Restriction Act—Inapplicability to lease of a business carried on at any
Plaintiff leased to the defendant for a period of 3 years the business of ahotel carried on at certain premises, together with goodwill, shop fittings,furniture, utensils and implements of trade. At the expiry of the period of 3years the defendant was to yield up peaceful possession of the business andpremises to the plaintiff.
The defendant claimed that what was leased to him was a furnishedapartment and that it was governed by the Rent Restriction Act.
Held, that the transaction between the parties was not a lease of a buildingbut of a business. The defendant’s position while he was in occupation of thepremises was no more than that of a licensee. The Rent Restriction Act,therefore, had no application to the case.
SANSONI, C.J.—Sediris Singho v. Wijesinghe
.A.PPEAL from a judgment of the District Court, Avissawella.
H. V. Perera, Q.C., with Ralph de Silva, for the Defendant-Appellant.
H. W. Jayewardene, Q.C., with G. T. SamerawicJcrame, Q.C.. and /. S.de Silva, for the Plaintiff-Respondent.
Cur. adv. vuU.
December 14, 1965. Sansoni, C.J.—
The parties to this action entered into an indenture on 19th August1958 whereby the plaintiff leased to the defendant the business calledWijeyasiri Hotel at No. 23, Ratnapura Road, Avissawella, together withgoodwill, shop fittings, furniture, utensils and implements of trade, all ofwhich were set out in detail in an annexed list. The lease was for a periodof 3 years commencing from 10th January, 1958, at a rental of Rs. 250 amonth. The defendant agreed to pay a further sum of Rs. 500 by way ofdeposit, and also Rs. 750 being arrears of rent ; he also agreed to takecare that the reputation of the business was not impaired in any way.The plaintiff was to be entitled to visit and inspect the business at anytime h * pleased. At the expiry of the period of 3 years the defendantwas to yield up peaceful possession of the business and premises to theplaintiff. The schedule to the agreement reads “ All that business calledand known as Wijeyasiri Hotel carried on at premises No. 23 ” (theboundaries of which premises are there set out).
A contemporaneous writing was signed by the defendant, whereby heundertook to pay the sum of Rs. 1,976/63 in monthly instalments withinsix months to the plaintiff as the price of certain articles forming thestock in trade there lying in the hotel.
The plaintiff has asked that he be restored to possession of the saidbusiness and given delivery of the articles mentioned in the fist annexedto the indenture, and that the defendant be ejected from the hotelpremises, as the lease has expired. The plaintiff has also claimeddamages at the rate of Rs. 1,000 a month until he is restored possession.
The defendant pleaded that what was leased to him was a furnishedapartment which is governed by the Rent Restriction Act ; and that heis a statutory tenant of the premises leased to him.
Sellayah v. Sabapathy
The only questions that arise on this appeal are whether the DistrictJudge was right in holding that the transaction between the parties wasnot a lease of a building but of a business ; and if so, whether the damageshe awarded at the rate of Rs. 400 a month from 10th January 1961 areexcessive.
I have no doubt, on a consideration of the indenture and the contem-poraneous writing, that the transaction was merely one of placing thelessee in charge of the hotel business for a definite period with a view tohis carrying it on for three years : the lessee was also, in order to fulfil thisagreement, put in possession of the premises in which that business wasbeing run. There was no agreement here to rent the premises, nor wasthe rent agreed on between the parties payable in respect of the premises.The defendant’s position while he is in occupation of those premises is nomore than that of a licensee. Consequently the Rent Restriction Acthas no application to this case.
I am in entire agreement with the judgment of Nagalingam, S.P.J. inCharles Appuhamy v. Abeyesekera 1, where the learned Judge had toconstrue an indenture very similar in terms to the one before us. Thecase of Nicholas Hamy v. James Appuhamy 2 dealt with a documentwhich was worded very different^, and which made it clear that acertain building was the subject of lease in that case, and not the businessthat was being carried on at that building.
With regard to the question of damages, the learned Judge hasawarded Rs. 400 a month, apparently because the plaintiff had enteredinto a subsequent agreement with a third party whereby this businesswas leased at the rate of Rs. 400 a month. Kb evidence in proof ofdamages was led by the plaintiff, and I think the sum of Rs. 250 a monthis a reasonable amount.
The decree appealed against is affirmed save that damages will be atRs. 250 instead of Rs. 400 per mensem from the 10th January, 1961.Subject to this variation the appeal is dismissed with costs in bothCourts.
Sirimane, J.—I agree.
B. SEDIRIS SINGHO, Appellant, and D. J. WIJESINGHE, Respondent