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VELAPPA CHETTY v. MEYDIN.
D. C., Chi law, 1^58.
Procedure—Motion to take plaint off the file—Action raised by attorney ofplaintiff—power of attorney not duly stamped at time of filing action—Defect cured on the day such motion was made—Bonl fides of agent—Stamp Ordinance No. 3 of 1890, «. 31—Civil Procedure Code, s. 26—Action on promissory note—Right to demand particulars of admittedpayments.
Where defendant moved that plaint be taken oft the file, as the agentwho brought the action in the name of his principal did not appear tobe authorized by a properly stamped power of attorney, and on the dayof the discussion of the motion the defect was cured,—
Held, that it was wrong to order the plaint to be taken off the file andrestored again to it as from the date on which the defect was cured,inasmuch as the Ordinance No. 3 of 1890, section 31, rendered suchpowers valid as from the date of its execution, and the agent seemed toact bona fide.
In an action on a promissory note it is not usual to deliver particularsof payments admitted by plaintiff, where the note does not appearex facie to be barred.
HE circumstances under which the plaintiff appealed in thiscase are fully stated in the judgment of the Supreme Court.
The argument took place on the 6th and 10th December, 1895.Layard, A.-G. (with him Sampayo), for appellant.
Dornhorst and Jayawardana, for respondent.
Cur. adv. vult.
16th December, 1895. Withers, J —
Two orders are appealed from in this case. The more importantone is that of the 17th October last, directing “the plaint to be“ taken off the file and again restored as from this date, plaintiff“ bearing all costs so far incurred.”
This order was made under the following circumstances :—
On the 15th August an action was instituted against thedefendant respondent on his promissory note dated the 19th dayof September, 1889, for Rs. 1,000 and interest.
It was instituted by the presentment of a plaint in the name ofKolentha Velan Chetty (one of the payees of the note) by hisattorney Velappa Chetty.
The plaint was entertained and filed. It was duly stamped,and it contained the requisite particulars (except the place ofresidence of the plaintiff, which was afterwards supplied). Itwas presented by a proctor on the plaintiff’s behalf, and signed bythe proctor.
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A copy of the plaintiff's agent’s power, certified by a proctor,was filed with the plaint, at the foot of which it is noted as adocument produced with the plaint.
Summons was issued for the defendant to appear and answeron the 3rd October. The defendant by his proctor appeared theprevious day and called for the original power. He also tmovedthat the plaint should be returned for amendment, the name ofthe plaintiff’s place of residence not being mentioned in theplaint.
This motion was discussed on th e 3rd, and the plaint was returnedfor amendment, the 10th October being appointed (I suppose) forthe answer.
On that day, however, no answer was put in, but a motion wasapparently made (though I can find no memorandum in writing^of it) for further time to file answer. The entry in the journal is :“ Counsel present; time to file answer allowed till plaintiff gives“ details of payments admitted by him,” which is followed by aformal order.
(This is the other order appealed from, and I shall deal with itpresently.)
On the 14th October defendant’s proctor steps in withanother motion that the plaint be taken off the file, with costs tobe paid by the plaintiff’s agent, on the ground that the originalpower of attorney executed in India was not duly Btampedaccording to the requirements of the local statute.
The document was in fact at the time not duly stamped foruse in this Colony, but by the 17th October it was duly stamped.
So rectified it was produced to the Court that day, and then theCourt made the order first referred to, namely, that the plaint betaken off the file and restored as from the 17th, and that plaintiffdo bear all costs incurred so far.
The Judge thought the plaint bad on account of the defect inthe power of attorney on the date of presentation. So he saidin effect this :—Had I known the imperfection of the power ofattorney under which the plaint was presented and filed, I shouldhave rejected it. I do now what I should have done then. I putmatters in statu quo. I will now entertain it as the power ofattorney is effectual for use in the Colony, but the action must beconsidered as instituted from this date, the 17th October.
Was the Judge right in making this order ?
Mr. Attorney-General argued that he vtos not.
The 31st section of the Stamp Ordinance, No 3. of 1890, renderedthe power of attorney valid as from the date of execution. Itwas consequently valid when the plaint was presented on the
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15ti August. Hence the Judge had no power to reject the plainton the 17th October, and so alter the date of institution of theaction. He distinguished it from the Badulla case (72, D. C.,Badulla, 30th May, 1895), where the plaint was returned foramendment because there the defect was in the constitution ofthe plaintiff’s case.
There the plaintiff had claimed a right which he had notvalued (a most requisite particular), whether regard be had to thestamp to be imposed on the pleading or to the interest of thedefendant, who is entitled to know what value his opponent putson a right he claimed.
That case could not go on till the plaint was amended in thatparticular. In the Badulla case the defect was a substantive one.In thiB an adjective one. We were pressed by Mr. Dornhorstto follow the principle in that case.
Had the Judge known the power of attorney to be ineffectualfor local use for want of being stamped according to local law, he(it is conceded) would not have accepted the plaint at all. There-fore he can only entertain it when the document authorizing theinstitution of the action is put in order.
The Code does not provide for a case of the kind. The plaintcould not well be returned for amendment, for the power was nopart of the pleadings. It could only be rejected as unauthorizedby a duly stamped power.
But if, after allowing the plaint to be filed, would the Judgehave necessarily rejected it on discovering that the power ofattorney was not duly stamped ? He would not have received itif he had known of the defect, but, having entertained the plaint,would he have necessarily rejected it proprio motu on discover-ing the defect ?
I think it would depend on the circumstances of the case. Ifthe person presenting the plaint was not bond fide acting as theagent of the principal under the defective power, he would reject it.
But might he not, if the proceedings are otherwise in order,say : I will not let summons go out, or the defendant shall not berequired to answer unless within a given time the document isput in order; and if this is not done within the time fixed I shallreject the plaint altogether.
It has not been usual, so far as I can find, to order a pleading tobe “ taken off the file*” when the proceedings are unauthorized.In the English Equity cases an opportunity is given to perfectthe authority, if possible.
Mr. Dornhorst laid special stress on the 25th section of theCivil Procedure Code, which enacted that when a recognized agent
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1895. presents his plaint he shall file with it the original power ofattorney or a properly certified copy of it. He did not do so here, it was urged, because his copy was but waste paper.
Withers, j.wa8 a certified copy, and he did produce it with the
plaint, and by the backward operation of the 31st section ofOrdinance No. 3 of 1890 it was rendered good at the date ofpresentation.
It may be, as it is here, of great importance to a plaintiff whatthe date of instituting his action is. Even if the Judge had adiscretion to do as he has done, I think it was not well exercised.The agent was acting in good faith all through for the plaintiff, hisprincipal. He instituted the plaint as his agent, and his authority,if suspended by the defect of his stamped document, was rendered^valid by the defect having been cured as from the date of hiswritten authority.
The course taken by the Judge was to cause a fresh action tobe instituted on the 17th October, and to dismiss the old plaint.
The conclusion I come to is that this course was not warrantedby the circumstances of the case, and I would reverse the order.
The order to adjourn the answer till ’delivery of particulars asto the alleged payment of interest was wrong. It is not usual todeliver particulars in actions on promissory notes. The allegationthat interest had been paid was not material to the plaint asinstituted in August. It would be very material if the plaint hadbeen instituted on the 17th October, for the note sued on would bebarred on the face of it.
Both orders should, in my opinion, be reversed with costs.
The defendant should be required to answer within one weekof the record being received by the lower Court.
I quite agree with my brother’s view that the particular actionto be taken, or order made in each case must depend upon thespecial facts of the proceedings in that action. Very possibly hadthe defendant here called for inspection of the power of attorneyere he moved for details of payments, or took any steps whateverin the action, he would have succeeded in having had the plaintrejected as having been improperly presented when there was noauthority of existing local validity, and improperly received byreason of such unknown defect. He had all the more occasionto make such a motion in that, according to the journal entry, noteven the copy of the power was filed with the plaint, althoughthe schedule to the plaint states it was produced with the plaint.
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He, however, both called for particulars, and moved only that 1896.
the plaint be returned for amendment. The result of his action®.
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was that plaintiff was enabled to produce—first the copy, and
TkvAWK A JT
subsequently the original; and even before he exhibited the latter’
to have it stamped as soon as the absence of the Ceylon stamp wasbrought to his notice by the surmise of the defence that therewas this defect. Defendant has so facilitated all this being donethat I regard the position of affairs here as analogous to thatcontemplated by section 34 of Ordinance No. 3 of 1890, and thatthe learned District Judge, had the power been still unstampedin Ceylon when produced, should have ordered only a stay ofthe proceedings until it should be stamped.r A fortiori, therefore, as it had been stamped ere he had to makeorder on the motion of the 14th October, he should have refusedthe motion, but might have allowed defendant his costs thereofif the latter had been duly diligent and had acted in no spirit ofmere delay or evasion of liability.
I agree in the proposed order.
VELAPPA CHETTY v. MEYDIN