Arunachalam Chettiar v. Ramanathan Chettiar.
Present: Dalton S.P.J. and Koch J.
ARUNACHALAM CHETTIAR v. RAMANATHANCHETTIAR.
235—D. C. Colombo, 2,767.
Registration of Business Names—Person carrying on two businesses—Appli-cation for registration—Filling in particulars—Failure to denote anyother business occupation—Meaning of expression business occu-pation—Application for registration by attorney on behalf of principaloutside Ceylon—Ordinance No. 6 of 1918, ss. 4 11) (e), 4 (2), and 5.
Plaintiff carried on the business of a money lender, rice merchant, andcopra merchant under one vilasam and the business of a rice merchantunder another vilasam.
He registered both business names and in registering the businessunder the former vilasam filled in the particulars required by section 4(1) (e) of “any other business occupation” as “ nilHeld, that he had not failed to comply with requirements of section 4(1) (e) of the Ordinance.
Held, further, that under section 4 (2) of the Ordinance there was norequirement that the plaintiff should set out the business carried onunder the latter vilasam as it was a separate and distinct business.
The statement required under section 5 for the purposes of registrationmay be signed by the attorney of a person who is carrying on business inCeylon but who is resident outside the Island.
HE plaintiff was a Chetty resident in South India and carrying on
JL business in Ceylon through local agents in Colombo. He claimedas carrying on business in Colombo under, the business designation orvilasam of R. M. A. R. A. R. R. M. Arunachalam Chettiar to recover fromthe defendants the sum of Rs. 55,870.50 on a mortgage bond.
It would appear that plaintiff carried on the business of money lender,copra and rice merchant under the above-mentioned vilasam, and thebusiness of rice merchant only under a separate vilasam, viz., A. R. A.R. R. M. He registered both businesses under the Business Names Regis-tration Ordinance. The particulars supplied under the provisions ofsection 4 of the Ordinance for the business R. M. A. R. A. R. R. M. wereset out in the form (exhibit D 1), which was signed by the plaintiff’sattorney.
Paragraph 11 of the form is based on the requirements of section 4 (1)(a) of the Ordinance which requires the applicant, when an individual, toset out any other business occupation he may have. Against this theword “ nil ” was inserted. It was contended on behalf of the defendantthat the plaintiff should have stated that he had another busihessoccupation, viz., the business of A. R. A. R. R. M.
The learned District Judge held that the failure to furnish theparticulars required by section 4 was a default within the meaning ofsection 9 and dismissed the plaintiff’s action.
Hayley, K.C. (with him N. Nadar a ja and S. J. V. Chelvanayagam), forplaintiff, appellant.—Plaintiff traded under two names or vilasams. Hesent his application for the registration of his business names in twodocuments, D 1 and D 2. Under heading 11 “ other business occupations
Arunachalam Chettiar v. Ramanathan Chettiar.
of the applicant ” plaintiff had entered “ nil Subsequently plaintiffhad sent amended applications (in forms P 3 and P 4) which supplied theomission. The Registrar would not entertain the amended applicationsexcept as applications to register a change of business. The learnedDistrict Judge held with the defendant that plaintiff had made defaultin terms of section 9 in not giving information of his other businessoccupation which he was required to do in paragraph 11 of the form, andalso on the ground that the forms were signed by the plaintiff’s attorneywhich he was not empowered to do by section 19.
< My submission is- that there is no default. For if there was it wassufficiently cured by the later documents P 3 and P 4 which were dulysubmitted to the Registrar before action was filed. If he had any otherbusiness occupation he had to state it. He has given all the informationrequired. Can it make any difference whether it has been done in oneform or two forms? If the Ordinance requires that certain informationshould be given, there will be compliance with the provisions of theOrdinance if it was supplied in two forms. The failure to fill cage 11 doesnot amount to a default; it is a mere omission. In the construction ofthe Ordinance the most favourable construction should be put in favourof the freedom of the individual rather than of restriction (35 N. L. R. atp. 206). Action cannot be brought only while one is in default. Butthe register can be subsequently corrected before action is filed.
(David & Co. v. de Silva'; S. P. A. Anamalai Chetty v. Thornhill=;Jamal Mohideen v. Meera Saibo *; 125 D. C. Colombo, 2,597.')
Even without section 19 there is nothing in the Ordinance to preventthe documents being signed by a person who is authorized to sign.(Re Whitely, 32 Chancery D. 335, followed in Jackson v. Knapper, 35.Chancery D. 162.) There is nothing in section 5 to indicate that thewords by his attorney cannot apply.
The word “shall ” in sections 4 and 6 is not peremptory as invalidatingthe whole business. Where it has reference to time or formality theenactment shall be regarded generally as directory unless it has the wordswhich make the thing void (Stroud’s Dictionary, 2nd ed., vol. III., p. 1851 ;Bosanquet v. Webster’). The refusal of the Registrar to accept the laterdocuments does not affect our case.
H. V. Perera (with him A. E. Keuneman and D. W. Fernando), fordefendants, respondents.—The two documents D 1 and D 2 cannot beread together—one does not refer to the other. From the fact that theRegistrar accepted the documents, it cannot be argued that there wassufficient compliance.
The section applicable to the present case is section 4, sub-section (2).
[Dalton J.—According to you where is the defect?]
It is submitted that it is in the alternative—in the failure to fill cage5 or the failure to fill cage 11. If plaintiff identifies the businesses asone and states that in cage 2, then he need not state the other businessoccupation in cage 11.
iJC. W. R. 08; 22 N. L. R. 26S.
* 5 C. L. Rec. 26.
5 Queen’s B. 93.
32 N. L. R. 99.
33 N. L. R. 41.
DALTON S.P-J.—Arunachalam Chettiar v. Ramanathan Chettiar. 265
[Koch J.—Here are two businesses owned by one person ?]
Then he must state the other vilasam under which he is trading incage 5, i.e.j any other business name. In this case the two businessescannot be regarded as distinct and separate. They must be regarded asone business activity (Bertram C.J.’s judgment in Jamal Mohideen v.Meera Saibo et al.1). The second business is only subsidiary to the first.
Section 19 of the Ordinance does not empower the local manager of abusiness to sign. There is no transference of obligation to some one else—a criminal responsibility is cast on the local manager for the failure toperform the duties imposed by the Ordinance.
Hayley, K.C. (in reply).—There is only one interpretation possible forsection 19.
As regards the question whether these two businesses were one orseparate, although there was an issue, no evidence was led to show thatthe business carried on under this vilasam of A. R. A. R. R. M. was thesame or part of the same business carried on under the vilasam R. M. A.
R.A. R. R. M.
The Ordinance has made provision for any other business occupation orany other business name. The submission of the two documents is themore correct thing to do. Plaintiff may have failed to give full answersto the questions. In such a case the Ordinance provides for a penalty tobe imposed—section 8. For that reason a whole business should notbe ruined.
Cur adv. vult.
December 5, 1935. Dalton S.P.J.—
This appeal raises questions that deal with the construction of certainsections of the Registration of Business Names Ordinance, No. 6 of1918, a piece of war time legislation that has given this Court severaldifficult questions to answer. It is difficult to think that those responsiblefor it ever foresaw the uses to which it would in time be put.
The appellant is the plaintiff in the action. He is a Chetty residing inSouth India, but carrying on businesses through local agents in Colombo.He claims, as carrying on business in Colombo under the business desig-nation or vilasam of R. M. A. R. A. R. M. Arunachalam Chettiar, torecover from the defendants, as the representatives of the estate of
S.S. N. R. M. Ramanathan Ch ittiar, deceased, the sum of Rs. 55,870.50,the amount of capital and interest due by the deceased on a mortgagebond. Various defences were raised, but for the purpose of this appeal itis sufficient to state that the learned trial Judge found in favour of theplaintiff on all of them except issue 8. He found that plaintiff had failedto comply with the provisions of Ordinance No. 6 of 1918, and whilst indefault he could not proceed to recover this money he had lent to thedeceased man. His action was therefore dismissed. Incidentally alsohe came to the conclusion, so I understand, that although plaintiff’sconduct had been bona fide in all respects, under the Ordinance there wasno provision for him under the circumstances to cure his default. Thereis no provision, as in the English Statute (6 & 7 Geo. V. C. 58), uponwhich the Ordinance is based, for the Court to grant any relief.
1 22 N. L. R. 268.
266 DALTON S.P.J.—Arunachalam Chettiar v. Ramanathan Chettiar.
The plaintiff has never been to Ceylon, but he has carried on here,through attorneys or local managers, businesses of money lending and thepurchase and sale of rice and copra for a lengthy period. In 1918 theevidence shows they were old business at that date. In that year as aresult of this Ordinance, he purported to register the names under whichthey were carried on. One business was that of money lending combinedwith the purchase and sale of rice and copra. This was carried on underthe vilasam of R. M. A. R. A. R. R. M. The second business was that ofa rice merchant only and was carried on under the vilasam of A. R. A.R. R. M. Although little evidence has been led on the point, there is,
I think, no dispute as to these two businesses being in 1918, quite separateand distinct, with different local managers. The learned trial Judgeseems quite satisfied on the point, and is satisfied that there has been noattempt on the part of appellant to conceal any business of his. Thisaction is, as I have stated, brought by him, trading as R. M. A. R. A. R.R. M. Arunachalam Chettiar, and we are concerned in this case with analleged default in the registration of that business name.
On April 28, 1919, appellant made application to have the vilasamR. M. A. R. A. R. R. M. registered in respect of the business of importingand dealing in rice and copra and money lending carried on under thatvilasam, on the same day making a similar application in respect of therice business carried on under the vilasam, A. R. A. R. R. M. The parti-culars supplied under the provisions of section 4 of the Ordinance for the.business R. M. A. R. A. R. R. M. were set out in the form (exhibit D 1),which was signed by the appellant’s attorney for his principal in the usualway. According to the case as argued in the lower Court, and accordingto the finding of the trial Judge, paragraph 11 of that form is defective.There was no suggestion raised in the lower Court of any other defect inthe particulars supplied.
Paragraph 11 of the form is based upon one of the requirements ofsection 4 (1) (e) of the Ordinance which requires the applicant, when anindividual, to set out any other buisness occupation he may have. Againstthis question the word “ nil ” was inserted. It was urged in the lowerCourt that applicant should have stated that he had another buisnessoccupation, namely, the business of A. R. A. R. R. M. The trial Judgeagreed with this contention, and held that the failure to give this infor-mation was a failure to furnish a particular required by section 4 and wasa default within the meaning of section 9.
There is evidence to show that just prior to the commencement of thisaction, the legal advisers of the plaintiff anticipated the possibility ofsome such defence as this being raised in the action. On February 5,1935, an attempt was made to cure this alleged defect in respect ofparagraph 11 by sending in a fresh application form (exhibit P 3).This purports to show that the business of R. M. A. R. A. R. R. M. wasone of banking, no doubt the old money lending buisness described by amore high sounding term, and under paragraph 11 was inserted thefollowing sentence :“ Rice buisness is carried on under the name of Ana
Roona Ana. Roona Ravenna Mana (A. R. A. R. R. M.) ”. Thereforewhoever was responsible for sending in the application form P 3 to theRegistrar of Buisness Names appears to have had, at that time at any
DALTON S.P.J.—Arunachalam Chettiar v. Ramanathan Chettiar. 267
rate, the same view of the nature of the particulars required to be suppliedin paragraph 11 of the form, as counsel for defendants and the learnedJudge had at the trial. Counsel for appellant has urged that there is nodefect in the information furnished by plaintiff in the form D 1, either inparagraph 11 or in any other paragraph or requirement.
In my opinion the requirement of section 4(1) (e) set out in paragraph 11of the form has been misread in the lower Court. All it requires is thatany other business occupation of the individual, in this case ArunachalamChettiar, must be set out. The business name he sought to register in‘ D 1 was the vilasam R. M. A. R. A. R. R. M. Had he any other businessoccupation than the occupation or occupations carried on under thebusiness for which that business name was sought to be registered ? Ithas been read by counsel for defendants and the learned Judge in thelower Court as if paragraph 11 required applicant to state not only anyother business occupation he may have but also the name, if any, underwhich that other business occupation is carried on. Plaintiff’s failure todisclose in the cage 11 of the form the fact that he was carrying onanother business under the vilasam A. R. A. R. R. M. has in fact beenheld to be his dafault which prevents him bringing this action. In myopinion, and I understand counsel for respondents on the appeal agreeswith me to this extent, there is no requirement, in respect of the partic-ulars required to be furnished in paragraph 11, for any such vilasam orbusiness name to be disclosed.
Is there, however, any defect in paragraph 11 of the form D 1, as aresult of the plaintiff’s attorney inserting the word “ nil ” in respect ofthe requirement to disclose any other business occupation ? It will benoted that the form disclosed in paragraph 2 that he was amongst otherthings a rice merchant. That was, so the form states, part of the businesscarried on under the vilasam of R. M. A. R. A. R. R. M. Had he anybusiness occupation other than his occupation as rice merchant, copramerchant, and money lender set out in paragraph 2 of the form ? Hehad, it is true, another separate business as rice merchant carried on underanother vilasam, and it is possible therefore that a very precise personmight urge that he should again state in paragraph 11 that he was a ricemerchant. It would, however, under the circumstances here, be merelya repetition of something already set out in the form of particularsfurnished. On the facts here, I am quite unable to see that his failure todo so was a failure to disclose any particular required by section 4 n (e),and a default within the meaning of section 9.
Mr. .Perera, in his argument on behalf of the respondents, was unwillingto abandon any argument raised on their behalf in the lower Court whichhad been accepted as correct by the trial Judge, but he has only advancedthe alleged defect in paragraph 11 of the form as an alternative. Hismain ground for upholding the conclusion of the trial Judge that therewas a failure to comply with the provisions of section 4 of the Ordinanceand so a default within the meaning of section 9, was based upon analleged defect in the form of particulars furnished in respect of paragraph5. The form D 1, he states, in paragraph 5, requires the applicant todisclose any other business name or names under which the businpss iscarried on. In reply to that question, the applicant stated “ nil ”,
268 DALTON S.P.J.—Arunachalam Chettiar v. Ramanathan Chettiar.
whereas, according to the argument, he should have disclosed the vilasamof A. R. A. R. R. M. as another business name under which the businesswas caried on.
It is to be noted that although the trial Judge specially calls attentionto the fact that the alleged failure of plaintiff’s attorney to comply withthe provision of the Ordinance was most strenuously and fully argued,it has never been suggested until the case came in to the Court of Appealthat there was any failure to supply any particulars as required in para-graph 5 of the form. Further, such .a suggestion seems to be inconsistentwith the position taken up by the defendants in the lower Court, andupheld by the learned trial Judge inasmuch as one reason for the dismissalof the action was a default on the part of the plaintiff to furnish particularsof another business occupation outside the business carried on under thevilasam R. M. A. R. A. R. R. M. Paragraph 5 of the form is based uponthe requirement set out in section 4 (2) of the Ordinance. If a businessis carried on under two or more business names, each of those businessnames must be stated. The case in England, for example, of a moneylender carrying on his money lending business under different names indifferent places is or was not uncommon, and is a case that would becovered by the provision.
The other business names which are required to be disclosed under thisprovision are other names, if any, of the business which is being registered.Plaintiff in D 1 sought to get the business name R. M. A. R. A. R. R. M.registered in connection with the business he carried on under that name.He did not carry on that business under any other name. Defendantsmade no attempt, for example, to show that the rice business carried onunder the vilasam of A. R. A. R. R. M. was the same or part of the samebusiness carried on under the vilasam R! M. A. R. A. R. R. M. It wasopen of course to them to seek to prove he was doing so, but no attemptwas made and I understood in the course of the argument before us it wasnot denied that the two businesses carried on under the two vilasams werequite separate and distinct.
If then the rice business carried on under the vilasam A. R. A. R. R. M.was not the rice, copra, and money lending business carried on under thevilasam R. M. A. R. A. R. R. M., particulars of which plaintiff’s attorneywas giving in the form D 1, but a separate and distinct business, thenthere was no requirement for plaintiff to set out in paragraph 5 the businesscarried on under the former vilasam, and there was no failure to complywith the provisions of section 4 (2) of the Ordinance.
In this connection we were referred to the judgment of Bertram C.J. inJamal Mohideen & Co. v. Meera Saibo and others'. He is there construingthe word “ business ” as used in section 9 of the Ordinance, and statesthat in his opinion it means the aggregate of the commercial transactionscarried on by the partners in that case. If that opinion can be availedof to assist one in the construction of the first word “ business ” in section4 (2) of the Ordinance, it is, I think, sufficient to say, as argued byMr. Hayley for the appellant, that the opinion of Bertram C.J. isinconsistent with the decision of the Privy Council in David v. de Silvaand is so over-ruled. There it was held that whereas there was a default
1 22 N. L. R. 268 at p. 274.
2 35 N. L. R. 201
DALTON S-P.J.—Arunachalam Chettiar v. Ramanathan Chettiar. 269
in respect of the accountancy business carried on by the individualJ. E. David, there was no default in respect of the timber business carriedon by him.
A further ground of appeal relates to the trial Judge’s finding thatplaintiff has failed to comply with the provisions of the Ordinance,inasmuch as the application form D 1 is not signed by him personally.He has therefore, it is held, furnished no particulars at all of the businessname under which he carries on business, as required by the Ordinance.
Section 5 of the Ordinance provides that the statement required forthe purpose of registration must in the case of an individual be signed byhim. Section 19 enacts amongst other things that if an individual residesoutside the Colony and his business is carried on in the Colony inhis name by a local manager, the latter shall be personally liable for allobligations attaching to the individual, and in case of any default inrespect of any obligation under the Ordinance the local manager is subjectto the same liabilities and penalties as the individual.
The form D 1 is furnished and signed by plaintiff’s attorney in Ceylon.The power of attorney (exhibit D5) shows he was the local manager ofthe business carried on under the vilasam. R. M. A. R. A. R. R. M. Thereis an obligation upon him to furnish the particulars required by theOrdinance. Mr. Perera has failed to satisfy me that he is not empoweredunder the Ordinance to complete and sign the form containing theparticulars. It is conceded that he is required to supply the information,but suggested he can only do so by sending the form out of the Island tobe signed by the individual in person wherever he may be. He is requiredunder penalty to do something but has himself no power to carry out theobligation. I regret I am unable to agree with the learned Judge as tohis construction of sections 5 and 19 of the Ordinance on this point.Whether or not, as Mr. Hayley has argued, even in the absence of section19 from the Ordinance, the local manager or attorney would have powerto sign the statement it is not necessary to decide. I would hold there-fore that there has been no failure to comply with the provisions of theOrdinance in this respect and would hold that this ground of appeal alsomust succeed. If the trial Judge was correct on this point it would ofcourse have been decisive of the matter before him.
It is not, in view of my conclusion set out above, necessary to deal withfurther matters argued before us, such as the meaning of the word“ default ” as used in section 9, whether any default alleged has in factbeen cured by furnishing the form P 3 before action was brought, or toconsider whether the opinion of Darling J. in O’Connor and Ould v. Ralston1that the word “ default ” means not furnishing any particulars at all anddoes not mean furnishing insufficient particulars, is correct or not.
The trial Judge held that there was primd fade evidence that plaintiff’sbusiness, in respect of which the action was brought, was duly registeredand that the onus was on the defendants to satisfy him to the contrary.The correctness of that ruling has not been questioned. For the reasonsI have given, I would hold that defendants have failed to show anydefault in furnishing a statement of particulars in regard to the registrationof this business name and therefore they fail on this issue.
1 (ism 3 K. B. 451.
Siri Kantha v. Thiagarajah.
The appeal must therefore be allowed and judgment will be enteredwith the usual decree to be drawn up in favour of the plaintiff for theamount claimed with costs in both Courts.-
Koch J.—I agree.
ARUNACHALAM CHETTIAR v. RAMANATHAN CHETTIAR