Concannon v. Vandeipoartm
1962 Present: T. S. Fernando, J., and L. B. de Silva, J.
T. CONCANNON, Appellant, and H. VANDERPOORTEN,RespondentS. C. 537 of 1960—D. C. Kandy, 7431j MRJurisdiction—Valuation of corpus in a partition action—"Order” of Court thatvaluer's fee should be paid by defendant only—Action for recovery of the fee—Forum—Applicability of rule that creditor must seek out debtor—Computationof prescriptive period—Prescription Ordinance, a. 10.
(i) Under the Roman-Dutch law a creditor is obliged to seek out the debtor.
(ii) Generally, obligations for the performance of which no definite time isspecified aro enforceable forthwith.
In a partition action instituted in the District Court of Kandy, V was the onlydefendant. In the course of that action the Court issued, on a motion filedby V, a commission to C “to visit and inspect the estate on behalf of thedefendant to assess and submit a report of the valuation on 27 th September1954 After the valuation report was submitted to the Court by C ou 25thSeptember 1954, the Court made an “ order ” on 23rd October 1956 directingC to recover his fees from V only. On the 5th August 1958 the present actionwas filed by O' in the District Court of Kandy against V, claiming to recover asum of Ra. 14,265-02. V contended that (a) the District Court of Kandyhad no jurisdiction to hear and determine the action, and (b) the plaintiff aclaim, if any, was prescribed.
1 (1967) 58 ±V. L. B. 560.
T. S. FERNANDO, J.— Concannon v. Vanderpoortm
V was at all material times resident in Colombo. C’s plaint did not containany averment that any contract had been entered into at Kandy. It merelyaverred that the cause of action arose within the local limits of the KandyCourt. The cause of action alleged was the .non-payment of the fee doe inrespect of the visit to the estate and for the making of the valuation report.There was no agreement as to the place of payment.
Held, that non-payment of the fee must be deemed to have been at Colombo,the residence of the debtor V. In the circumstances C was not entitled toinstitute action in the District Court of Kandy,
On the issue of prescription, there was no dispute that, as the work ofvaluation was really of a professional nature, section 10 of the PrescriptionOrdinance applied and the period of prescription was three years and not oneyear.
It was also common ground that demand was made only after the Courthad made its order of 23rd October 1956.
Held, that, as payment could in law have been demanded by C immediatelyafter 25th September 1954 (when the valuation report was furnished to theCourt by C), and not after 23rd October 1956, the defendant V was entitled tosucceed also on the issue of prescription.
from a judgment of the District Court, Kandy.
N. R. M. Daluwatte, for plaintiff- appellant.
G. T. SameravncJcreme, for defendant-respondent.
Cur. adv, vutt.
November 7, 1962. T. S. Febnantdo, J —
Id partition action No. P 3922 of the District Court of Kandy,instituted under the provisions of the Partition Act of 1951, interlocu-tory decree was entered on 13th February 1953, and a commission wasissued to a surveyor to survey and partition the land in terms of thedecree. The surveyor submitted his scheme of partition on 26th June1954 to the Court. Both the plaintiff and the defendant, who were theonly two parties to the case, filed objections to the scheme so submitted.On 19th August 1954, the date fixed for consideration of the reportand the scheme of partition of the surveyor, the Court, on a motion ofthe defendant who is the respondent to this appeal, issued a commissionto the appellant before us “to visit and inspect the estate on behalf ofthe defendant to assess and submit a report of the valuation on27th September 1954 A valuation report was. submitted to the Courtby the appellant on 25th September 1954,
On 27th September 1954 the appellant forwarded to tbe Court aletter requesting that he be paid a sum of Pws. 14,265*02 being his feefor making the valuation report. It may be mentioned here that theland sought to be partitioned in case No. P 3922 was over one thousandacres in extent. The fee represents about 1% of the value of the land.
T. S. FERNANDO, J.—Coneannon v. VamderpoorUn
The respondent took up the position that any fee payable icthe appellant had to be paid not only by herself as defendant but by
her and the plaintiff pro-rata. As the plaintiff was not willing to beaiany share of the fee of the appellant, the District Judge held an inquiryand made an “ order ” on 23rd October 1956 in the following terms :—
“ I accordingly direct Mr. Coneannon to recover his fees from the
defendant in this case
Mr. Coneannon is the appellant before us.
The appellant on 5th August 195S filed recovery action. No. 7431/MRin the District Court of Kandy against the defendant claiming to recoverfrom her a sum of Rs. 14,265 '02. The defendant by her answercontended, inter alia, that (a) the District Court of Kandy had no juris-diction to hear and determine the action, and (b) the appellant’s claim,if any, was prescribed.
After evidence had been taken on behalf of both parties, the learnedDistrict Judge ruled in favour of the defendant on issue (a), and infavour of the appellant on issue (ft). As he held that the District Courthad no jurisdiction to hear the action, he dismissed it with costs fixedat 20 guineas. At the argument before us, learned Counsel for thedefendant, while maintaining that the trial judge correctly decided theissue as to jurisdiction, argued that the issue relating to prescriptionhad been wrongly decided. The course followed by counsel for thedefendant was in accordance with section 772 (1) of the Civil ProcedureCode which permits a respondent to an appeal to support the decreeon any of the grounds decided against him in the court below.
The defendant was at all material times resident in Colombo and,therefore, to justify the filing of the action for recovery against her atKandy the appellant had to satisfy the Court either that the cause ofaction arose within the local limits of the jurisdiction of the DistrictCourt of Kandy or that any contract sought to be enforced was made■within such limits. Even the appellant’s second amended plaint—tbeplaint had been twice amended—did not contain any averment thatany contract had been entered into at Kandy. It merely averred thatthe cause of action arose within the local limits of the Kandy court.The cause of action was the non-payment of the fee due in respect ofthe visit to the estate and for the making of the valuation report. Therewas no agreement tvs to place of payment. There is no dispute that thematter is governed by the Roman-Dutch law, and that under thatsystem of law the creditor is obliged to seek out the debtor. Non-payment must therefore be deemed to have been at Colombo, the resi-dence of the debtor, and it is plain that the appellant could not in thecircumstances have instituted this action in the District Court of Kandy.
Two cases decided in South African courts were cited by learnedcounsel for the appellant as applications of the general rule laid down byVoet (46.3.12) that pay men* must be made in the plaos in which the
T. S. FERNANDO, J.—Concannom v. Vanderpoorien
obligation was contracted, unless another place has been expressly ortacitly fixed for the fulfilment of the contract, bub it seems to me unneces-sary to enter into an examination here of these two cases as the solecause of action relied on by the appellant was the failure to pay his fee.That failure occurred nowhere else but at the place where the defendantwas resident, and it follows that the learned trial judge was right in bisanswer to the issue of jurisdiction.
While this conclusion on the question of jurisdiction disposes of theappeal, I think we might usefully deal also with the argument of the de-fendant's counsel that the question of prescription was wrongly answeredat the trial. There is no dispute between counsel that the trial judge wasright in his opinion that, as the work of valuation is really of a professionalnature, it is section 10 of the Prescription Ordinance that applies, andthat the period of prescription is three years and not one year.
The valuation report of the appellant was submitted to court on25th September 1954. The action for recovery was instituted in court on5th August 1958, i.e., after 3 years had elapsed. It was contended onbehalf of the appellant that the period of 3 years had to be reckoned fromthe date of failure to pay after demand made. It is common ground thatdemand was made only after the court had made its order of 23rd October1958 referred to above. If the contention made on behalf of the appel-lant is sound then the action was not statute-barred. The learned trialjudge took the view that, as the parties had not agreed upon a date forpayment, the period of prescription did not commence till demand forpayment was made by the creditor. Certain local cases have beenreferred to in his judgment in support of the view he took, but, withrespect, the cases cited are not applicable to the facts of the present case.The appellant’s counsel submitted to us that his client could havesued the defendant only after the District Court bad made its order of23rd October 1956, his contention being that liability was determined only-on that day. I find myself quite unable to agree with that submission.The Court’s oxder. of 23rd October 1956 did not have effect of creating anyliability in the defendant to pay. That Liability arose when, at her ins-tance, the appellant visited the estate and made a valuation report whichwas furnished to the court on 25th September 1954. The general ruleof law is that obligations for the performance of which no definite timeis specified are enforceable forthwith—see Hackay v. Naylor1. Paymentcould in law have been demanded by the appellant immediately after25th September 1954, and the period of prescription began to run fromthat date. I am of opinion that the defendant was entitled to succeedalso on the issue of prescription.
The appeal is dismissed with costs.
L. B. de Silva, J.—I agree.
1 (1917) T. P. D. 533 at 537.
T. CONCANNON, Appellant, and H. VANDERPOORTEN, Respondent