Branipy A.ppuhamy v. Gunasekere
1948Present : Dias and Basnayake JJ.BRAMPY APPUHAMY, Appellant, and GUNASEKERE,Respondent
S. C. 389—D. G. Kalutara, 24,223
Prescription—Not pleaded in answer—limitation of action—Court cannotconsider Statute.
Where the effect of the Prescription Ordinance is merely to limitthe time within which an action may be brought, the Court will nottake the statute 'into account unless it is expressly pleaded, by way ofdefence.
BASWAYATCTC J.—^Brampy Appuhamy v. Gunasehere
^^.PPEALi from a judgment of the District Judge, Kalutara.
Thiagalingam, for the plaintiff appellant.
S. W. Jayasuriya, with Kingsley Herat, for the defendant respondent.
Cur. adv. vult.
April 20, 1948. Basnayake J.—
The plaintiff-appellant (hereinafter referred to as the plaintiff) seeksto recover from the defendant-respondent (hereinafter referred to asthe defendant) a sum of Its. 439 '65 heing the value of timber suppliedby him to the defendant on September 3, 1943. The defendant disputesthe plaintiff’s claim and alleges in paragraph 3 of his' answer that thetimber in question was delivered to him about March, 1939, and deniesthat any sum whatsoever is due to the plaintiff. The defendantfurther alleges that between July 22, 1938, and July 24, 1939, he madeadvances of money and sold goods on credit to the plaintiff to the valueof Rs. 274*93 on the latter agreeing and undertaking to supply himwith sawn timber, at rates agreed on, for the value of Rs. 200 and topay the balance in cash. He further alleges in paragraph 6 (c) ofhis answer that after paying the sum of Rs. 74*93 the plaintiff inJuly, 1939, delivered to him sawn timber to the value of Rs. 200which he deposited in a mud hole on the land adjoining a land called“ Samplewatta ” from which the timber was extracted by the plaintiffwho had in 1938, secured a contract from the Government to clear it.The defendant says that when, in August, 1943, he attempted to takeaway the timber so deposited the plaintiff refused to let him remove theentire quantity but permitted him to take only a part of it to the valueof Rs. 105*93 in respect of which the plaintiff has brought this action.He therefore claims from the plaintiff a sum of Rs. 94*07 being thebalance due to him after deducting the sum of Rs. 105*93 from the-sum of Rs. 200. He also offers to return the timber supplied by heplaintiff on bis paying him the sum of Rs. 200. The plaintiff deniesthat there is a debt of Rs. 200 due to the defendant and says he is willingto take back the timber.
The case went to trial on the following issues :
What were the rates at which the plaintiff agreed to supplythe timber in question to the defendant ?
When did the plaintiff supply the timber in question ?
What is the value of the timber actually received by thedefendant ?
What value did the defendant supply goods and make advancesto the plaintiff for ?
What sum is due to the defendant on his claim in reconvention ?
The learned District Judge has held that the plaintiff agreed to supplytimber to the defendant at the rate of 18 cents a cubit for beams and
BA8NAYAKE J.—Bratnpy Appuhamy v. (} it-nasekere
8 cents a cubit for rafters. He also holds that the sale was in 1939,and delivery in 1943, and that the value of the timber actually receivedby the defendant is Rs. 103'24. In regard to the defendant’s claim heholds that he made advances and supplied goods to the plaintiff to thevalue of Rs. 199 ‘93 and that a sum of Rs. 94-07 is due to him.
The plaintiff has appealed against the decision of the learned DistrictJudge. Learned counsel for the appellant submits that the contract ofsale whieh the learned judge has held was made by the defendant in 1939cannot be enforced as it does not satisfy the requirements of section 5(1)of the Sale of Goods Ordinance. That provision reads
“ A contract for the sale of any goods shall not be enforceable byaction unless the buyer shall accept part of the goods so sold, andactually receive the same, or pay the price or a part thereof, or unlesssome note or memorandum in writing of the contract be made andsigned by the party to be charged or his agent in that behalf.”
On the learned judge’s own finding the buyer did not accept or receivethe goods or any part thereof in 1939, at the time of the contract. Thereis no evidence of a note or memorandum in writing of the contract madeand signed by the party to be charged or his agent. Learned counsel’scontention is therefore entitled to succeed.
In regard to contract alleged by the plaintiff the defendant acceptedand actually received the goods and used them in his building, although inhis answer he offered to return them and the plaintiff agreed to take themback. He says “ The timber the plaintiff supplied I made use of and builtthe house. When the case was filed the roof had not been fixed. Whenthe case was postponed from day to day I constructed the roof.” Thedefendant is therefore bound to pay for the timber. As there is noevidence of an agreement as to price he must pay a reasonable price LWhat is a reasonable price is a question of fact. The case must thereforego back to the District Court for the ascertainment of a reasonableprice for the timber at the date of acceptance and receipt by thedefendant. The defendant is entitled to credit in the sum of Rs. 199-93which the learned District Judge has found is due to him from theplaintiff. The amount due to .the defendant on his claim in reconventioncan only be ascertained after the value of the timber received by himhas been decided. If such value exceeds Rs. 199-93 he will be entitledto nothing and will be ordered to pay the excess.
An attempt was made to argue that the defendant’s claim was barredby the Prescription Ordinance (Cap. 55). The plea is not taken in theplaintiff’s replication. There is no issue on the point, nor is there anyevidence touching it. The plaintiff was represented by counselthroughout the trial. In these circumstances the plaintiff is not entitledto raise the question at this stage. It is settled law that when, as inthe case of sections 5, 6, 7, 8, 9, 10 and 11 of the Prescription Ordinance,the effect of the statute is merely to limit the time in which an actionmay be brought and not to extinguish the right, the court will not takethe statute into account unless it is specially pleaded by way of defence.
1 Section 9 (2) of the Sale of Goods Ordinance.
GRATIAEN" J.—-King v. Aiukorale
The plaintiff’s appeal is allowed and the judgment of the learnedDistrict Judge is set aside and the case is sent hack for the purpose ofgiving effect to our decision. Each party will bear the costs of thisappeal and the trial.
Dias J.—I agree.
BRAMPY APPUHAMY, Appellant, and GUNASEKERE, Respondent