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MEYAPPA CHETTY v. USOOF.
D. C., Colombo, 15,696.
Action on promissory note—Civil Procedure Code, chap. 53—Cross claimantecedent to date of promissory date—Leave to defend unconditionally—* Custom among Chetty traders—Meaning of “ R. M. M. S. T. MeyappaChetty.”
Under chapter 53 of the Civil Procedure Code, a defendant snedupon a promissory note may set np by way of defence a cross claim on acheque bearing date antecedent to the date of the promissory note.
When the defendant swears to facts which if true constitute a gooddefence, he should be allowed to defend unconditionally, unless thereis something on the face of the proceedings which leads the Court todoubt the bond fides of the defence.
According to the custom of Chetty traders and firms, " B. M. M. S. T.Meyappa Chetty," means that Meyappa is the agent of the firm of B. M.M. S. T.
CTION on two promissory notes for the aggregate sum ofRs. 1,500 made by the first defendant in favour of the
second and third defendants and endorsed by them to theplaintiff, who designated himself “ R. M. M. S. T. MeyappaChetty.”
Summons being served, the second defendant averred in hisaffidavit- that nothing was due to the plaintiff; that the plaintiff,
>M. M. S. T. Meyappa Chetty was the attorney of R. M. M. S. T.Arunasalam Chetty; that the said Arunasalam Chetty was theprincipal of the firm of R. M. M. S. T.; that this firm was indebtedto him in the sum of Rs. 1,600, being money lent to it by seconddefendant’s cheque, dated 20th June, 1900; and that, setting offthe Rs. 1,500 claimed by the plaintiff as due on the promissorynotes, there was still due to the second defendant from the plaintiffa sum of Rs. 100.
The second defendant moved, under chapter 53 of the CivilProcedure Code, for leave to appear and defend the suit.
The Additional District Judge (Mr. F. R. Dias)- made thefollowing order: —
“ There is nothing to show that the plaintiff has anything to do-with the person to whom the second defendant says he made thepayment, and I do not believe this defence is made bond fide.Leave to defend will be allowed to the second defendant only, onhis.giving security for the full amount of the plaintiff’s claim.”
The second defendant- appealed.
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Wadsworth, for appellant.—The plaintiff’s affidavit filed withthe plaint merely avers that Rs. 1,500 is due, but not due to himpersonally. The second defendant says that plaintiff is the agentof one ArunasalamChetty,who is theprincipal of a firm styled
R. M. M. S. T.It is awell-knowncustomamong Nattukotte
traders to sign one's own name after the initials of other persons,and such signature, as for example R. M. M. S. T. Mevappa Chetty,has been construed to mean the firm of R- M. M. S. T. by theirattorney MeyappaChetty(WalayappaGhettyv. Suppramanian
Chetty, 4 8. C. G. 91; Bank of Madras v. Weerappa Chetty, 4 jS.
!G. TO; Bhikkajee Go. v. Muttiah Ghetty, 4 S. C. G. 111).Chapter 53 of the Civil Procedure Code must be read strictly,and no allowancemade for plaintiff when hesays that money
Is due. These words should not be construed to mean that moneyis due to. him personally (Annamalai v. Allien, 2 N. L. R. 251).
24th February, 1902. Bonser, C.J.—
This is an action bv a firm R. M. M. S. T. by their agentMeyappa Chettv against the makers and endorsers of two promis-sory notes for Rs. 1.000 and Rs. 500 respectively.
The appellant, in whose favour the notes were made, endorsedthe notes in blank and handed them to the plaintiff as represent-ing his firm. The notes were dishonoured at maturity, and thisaction is now brought. The appellant set up this defence: “ Thereis due to me from you, the plaintiff firm, the sum of Rs. 1,600,which I advanced to you on a cheque dated June 20, 1900, a dateantecedent to the making and endorsing of the promissory notes.”It has been held by this Court that such a state of things, across claim, is a defence which can be set up to an action on apromissory note under chapter 53. The only question thereforeis as to the bond fxdes of the defence. The District Judge declinedto admit the defence on the ground that, although the defendanthad pledged his oath to the fact that the plaintiff’s firm owed himRs. 1.600, yet there was no connection proved between MeyappaChetty and the firm.'
It seems to me that the way in which Meyappa Chetty suedshows that he was .the agent of the firm. There are various casesin the Supreme Court Circular, from which it appears that acustom has been proved as regards Chetty traders and firms, andthat the Courts will take judicial notice of that custom, which isthus stated by Cayley, C.J., in the case of The Bank of Madras v.Weerappa Chetty, 4 8. C. C. TO :—
” It is an equally well-known, and I may say invariable, custom“ for Chetties carrying on business in connection with India to
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“ carry it on under the designation of certain Tamil initial letters.^
" Sometimes these initials represent a firm, sometimes an indjvi- February“ dual carrying on business without partners, as a single trader in Bonser,C.J.“ England often styles himself in his business transactions as ‘ So-“ ‘ and-so and Co.’ As pointed out by Mr. Lawson in his judgment“ in the case 42,165, D. C., Colombo, ‘ A. Ru. Su. Veiy. R. Muttu“ ' Ramen Chetty ’ would mean, according to the common usage,
“ ‘ Ana Runa Suna Veiyana Rana and Coy. by their attorney or" ‘ agent or representative Muttu Ramen. ’ ”
Applying that to the present case, it seems clear that Mayappais the agent of the firm R. M. M. S. T. The defendants havesworn in their affidavit that he is the attorney of the firm of thatname, and that from that same firm there is due to them Bs. 1,600.
Of course, if that turns out untrue, they are liable to be prosecutedfor perjury. It seems to me that the policy of the law in regardto summary procedure is to require a sworn statement of Factswhich if true will be a defence to the claim, and the ideaevidently was that a defendant who might readily put in an untruedefence in an ordinary action would hesitate to swear to thatdefence in an action under chapter 53. The rule would appearto be that, when the defendant does swear to facts which if trueconstitute a good defence, he should be allowed to defendunconditionally, unless there is something on the face of theproceedings which leads the Court to doubt the bond fides of thedefence. The defendant gets leave to appear at his own peril,the peril of being indicted for perjury if his defence is found tobe untrue.,
Applying that rule here, the defendant in this case will beallowed to defend unconditionally, but I trust that if his defenceproves untrue the District Court will direct a prosecution.
Wendt, J.—I agree.
MEYAPPA CHETTY v. USOOF