082-NLR-NLR-V-63-ADAMJEE-LUKMANJEE-SONS-LTD.-Appellant-and-ABDUL-CAREEM-HALLAJE-Respondent.pdf
K D. DE SILVA, J.—Adamjee Lukmanjee db Sons Ltd. v.
Abdul Careem Hallaje
407
Present: K. D. de Silva, J., and Sansonl, J.ADAMJEE LUKMANJEE & SONS DTD., Appellant, and ABDXJL
CAREEM HALLAJE, Respondent
S. C. 222—.D. C. Colombo, 42144jM
Prescription—O^ods sold—Letter written by debtor to creditor—“ Acknowle-igment ”—“ Written promise ”—Prescription Ordinance (Cap. 55), ss. 6, 8, 12.
On March 27, 1954 plaintiff sold to the defendant, on credit, certain goodsvalued at Rs. 4,300. By letter dated 3rd August 1954 the defendant acknow-ledged that a sum of Rs. 4,300 was due from him to the plaintiff, and thenproceeded to state : “ We shall definitely pay this bill by the end of this month
Held, that the letter constituted a written promise within the meaning ofsection 6 of the Prescription Ordinance.
Ar
PEAL from a judgment of the District Court, Colombo.
G. Ranganathan, with S. Sharvananda and R. Rajasingharri, for plaintiff-appellant.
V. J. Martyn, with N. R. M. Daluwatte, for defendant-respondent.
October 7, 1960. K. D. de Silva, J.—
On March 27; 1954, the plaintiff’s company sold to the defendant, oncredit, 500 bags of cement valued at Rs. 4,300/-. The defendant delayedin making payment for the goods purchased by him. By letter P3 dated3rd August, 1954, he acknowledged his liability to pay this amount tothe plaintiff and agreed to pay it by the end of that month. Thereafter,two payments aggregating to Rs. 2,500/- were made by the defendant.The balance due on this transaction is Rs. 2,800/-.
This action was instituted on the 25th of September, 1957, to recoverthis amount. When the case came up for trial, the counsel for thedefendant took up the position that the cause of action was prescribed.The proctor for the plaintiff however stated that he relied on the letter P3referred to earlier, and he also submitted that the cause of action wasbased on this letter. The only defence set up at the trial was one ofprescription. It was submitted on behalf of the defendant that thisaction was to recover money due for goods sold and delivered and thatthe claim was prescribed within one year as it fell within Section 8 of thePrescription Ordinance, Cap 55. On the other hand, it was argued onbehalf of the plaintiff that this cause of action arose under Section 6 ofthe Prescription Ordinance in view of the letter P3. It is conceded thatthe defendant wrote this letter.
408
K. D. DE SILVA, J.—Adamjee Lukmanjee dr Sons Ltd. v.
Abdul Careem HaUaje
The learned District Judge, after hearing the arguments of counsel,held that this letter P3 was a mere acknowledgment of the debt due tothe plaintiff and that it would not bring the plaintiff’s claim underSection 6 of the Prescription Ordinance. Therefore, he dismissed theplaintiff’s action with costs. The learned District Judge in coming tothis decision purported to follow the judgment of De Sampayo, J., in thecase of Walker, Sons <$c Co. Ltd. v. Kandyah 1. In that case De Sampayo,
J., stated that a certain degree of formality was required in the case ofa written contract, and he proceeded to hold that the letters exchangedbetween the parties in that case could not be construed as a contract.
In the instant case, however, it is not suggested that the letter P3constituted a contract. It was relied on by the plaintiff to establish thatthere was a written promise made by the defendant to pay this amountto the plaintiff. At the commencement of the letter the defendantacknowledges that a sum of Rs. 4,300/- is due from him to the plaintiff,and he then proceeds to state : ** We shall definitely pay this bill by theend of this month ”. Mr. Martyn who appeared for the respondent atthe hearing of this appeal argued that this letter amounted merely to anacknowledgment contemplated by Section 12 of the Prescription Ordi-nance. If that view is correct then the plaintiff’s claim is clearly pres-cribed. In my view Section 12 contemplates merely an acknowledgmentof the debt. In the letter P3 there is not only an acknowledgment thatthe amount is due but also a clear promise to pay this amount withina month. I would, therefore, construe this letter as a written promiseto pay the amount : accordingly, Section 6 and not Section 8 of thePrescription Ordinance applies to the facts of this case. If Section 6applies it is not denied that the plaintiff is entitled to succeed.
I would set aside the judgment appealed against, and enter judgmentfor plaintiff as prayed for with costs. The plaintiff-appellant is entitledto costs in this appeal.
Sansont, J.—I agree.
Appeal allotoed.
1 (1919) 21 N. L. R. 317.