SANSONI, J.—The Municipal Council of Negombo v. Benedict Fernando 167
1958Present: Sansoni, J.f and Slnnetamby, J.
THE MUNICIPAL COUNCIL OF NEGOMBO, Appellant, andBENEDICT FERNANDO, Respondent
S. G. 539—D. G. Negombo, 18,412
Prescription Ordinance (Cap. Si)—Supply of electricity—Written promise—Is it abooh debt P—Sections 6, 9, 8,10.
A claim by a supplier of electricity to recover the charges due to him is not abook debt if it is based upon a written promise. Such a claim falls under section6, and not section 8, of the Prescription Ordinance.
An offer in writing made by a person to pay the monthly charges for consump-tion of electricity becomes a binding promise when the supplier accepts theoffer and supplies electricity on the faith of the promise.
Municipal Council, Kandy t>. Abeyesehera (19301-31 N. L. R. 366, distinguished.
-IaPPEAL from a judgment of the District Court, Negombo.
W. Jayewardene, Q.C., with G. T> Samemtoickreme and C. P. Fer-nando, for the Plaintiff-Appellant.
Ronald Perera, for the Defendant-Respondent.
Gw. adv. tmU.
June 3,1968. Sansoni, J.—
The Municipal Council of Negombo sued the defendant to recover thesum of Rs. 537/37 which was said to be due on account of electricitysupplied by the Council to the defendant during the period April to August,1954. The Council pleaded that the defendant by his agreementdated 26th January 1954 (which was filed with the plaint) contracted forthe supply of electricity to him and agreed to pay its chargee for such
158 SANSONI, J.—The Municipal Council of Negombo v. Benedict Fernanda
supply. The defendant hied answer pleading that the claim was pres-cribed, and asking for one year’s time to liquidate the amount found duein tho event of the plea of prescription failing.
At the trial the only issue suggested was whether the plaintiff’s claimwas prescribed. The only witness called was the accountant of theCouncil who stated in evidence that the amount claimed was due : healso produced the written application which the defendant had signedupon a 50 cents stamp. This application is a lengthy document contain-ing the conditions under which electricity is supplied. It also containsan undertaking by the defendant to pay the monthly charges forconsumption of electricity at the rates prescribed in the relevant tariff.
The learned District Judge dismissed the plaintiff’s action, rejectingthe submission that the claim fell under section 6 ; he held that the claimwas in respect of a book debt, and fell under section 8 of the PrescriptionOrdinance (Gap. 55). He followed the decision in Municipal Council,Kandy v. Abeyesekera1, a case in which the Kandy Municipality claimedmoney due for the supply of electric current and for the hire of electriclamps. Dalton J. held in that case that the debt was a book debt. Thereis a superficial resemblance between that case and the present one, butI think that a closer examination of the facts reveals that the decision ofDalton J. does not apply to the case now under consideration. Hithat case the only question which was considered was whether the sectionapplicable was section 9 (now section 8), as the defendant there pleaded,or whether section 8 (now section 7) or section 11 (now section 10) applied,as the plaintiff there urged. It will be seen at once that the questionwhether the present section 6 applied was not specifically consideredby the learned Judge. The reason may be that the plaintiff in thatcase relied only on sections 8 and 11 (present sections 7 and 10) as beingapplicable to the case. I have examined the record in that case andI find that the only document relied on was a letter written to the Electri-cal Engineer of the Kandy Municipal Council by the defendant requestinghim to supply 56 lamps for a pirith tent, and stating that he would depositthe payment on hearing from the Engineer. I think the writing suedupon in the present case is easily distinguishable.
I do not regard that decision as authority for the proposition that everyclaim by a supplier of electricity to recover the charges due to him is abook debt. Each case must be considered in the light of the facts provedand the basis upon which the particular claim was presented in Court.
I do, however, respectfully dissent from that part of the judgment ofDalton J. where the learned Judge says: “ Whether or not such acontract as we have under consideration was a written or unwrittencontract, within the meaning of either section 7 or section 8, there is nodoubt that section 9 provides specially for actions on certain classes ofcontract. As Moncreiff, J. pointed out in Horsfall v, Martin a, certainclaims referred to in section 9 must be prosecuted within one year fromthe date at which they became due, whether they are based upon writtenpromises or not. It will not therefore be sufficient here merely to ascer-
1 (1930) 31 N. L. R. 366.
2 (I960) i N. L. R. 70.
SANSONI, J.—The Municipal Council of Negombo v. Benedict Fernando 169
tain whether the agreement was in writing or not The learned Judgeoverlooked the earlier case of de Silva v. Don Louis 1 in which threejudges decided that a claim due on a written contract fell under section 7(now section 6) and not under section 8 (now section 7), even though theclaim was in respect of rent which is specifically provided for in section 8(now section 7). The particular, passage in HorsfaU v. Martin 2 whichDalton J. cited has been criticised and dissented from in later judgments,such as Rodrigo v. Jinasem 3 and Assan Gutty v. Broohe Bond4. InRodrigo v. Jinasena 3 Maartensz A. J. applied the principle laid down inde Silva v. Don Louis1 to a case where goods were sold and deliveredupon an agreement in writing, and held that section 7 (now section 6)and not section 9 (now section 8) applied in such a case. The sameprinciple was also applied in Campbell and Co. v. Wijesekere 5.
The learned District Judge does not seem to have had his attentiondrawn to these decisions, for he has quoted the passage in the judgmentof Dalton J. as supporting his conclusion that “ claims contemplatedunder section 8 must be prosecuted within one year from the date atwhich they become due, whether they are based on written promises ornot It is thus clear that he was basing himself on an erroneous viewof the binding effect of that judgment.
It only remains for me to find whether the writing PI signed by thedefendant falls within section 6 which relates to actions “upon anywritten promise, contract, bargain or agreement or other written secu-rity I do not see how it can be regarded as anything short of a writtenpromise, though no definite sum is mentioned. The promise was, at thestage it was made, only an offer in writing, but it became a binding pro-mise when the Council accepted the offer and supplied electricity on thefaith of the promise.
If the condition laid down by de Sampayo J. in Walker Sons andCo. Ltd. v. Kandyah 3 that the written contract contemplated in section6 must have a certain degree of formality applies to a written promisealso, it passes that test too, for it is a formal document signed by thedefendant upon a 50 cents stamp. Whether that test which de Sampayo
J.prescribed in the case of a written contract also applies in the case of awritten promise I do not decide, but I would point out that Lyall GrantJ. in Urban District Council, Matale v. SeUaiyah 1 held that a letter whichhad no particular formality attaching to it could constitute a writtenpromise.
For these reasons I would set aside the judgment under appeal and givejudgment for the plaintiff as prayed for with costs in both Courts.
Sinnetamby, J.—I agree.
1(1881) 4 S. 0. C. 89.
2(1900) 4 N. L. B. 70.
5 (1931) 32 N. L. R. 322.
(1934) 36 N. L. R. 169.
(1920) 21 N. L. R. 431.9 (1919) 21 N. L. R. 317.
(1931) 33 N. L. R. 14.
THE MUNICIPAL COUNCIL OF NEGOMBO, Appellant, and BENEDICT FERNANDO, Respondent